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Duncan v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

September 24, 2014



Dusti Standridge, for appellants.

Tabitha Baertels McNulty, DHS Office of Policy and Legal Services; and Chrestman Group, PLLC, by: Keith Chrestman, for appellees.


Appellants Becky Duncan and Patrick Gaither appeal from the termination of their parental rights to their children. Duncan has filed a merit brief, whereas Gaither's counsel has filed a no-merit brief and a motion to withdraw, alleging that there are no meritorious grounds for his appeal. Gaither has not filed pro se points. We reverse and remand as to Duncan, but we affirm the termination of Gaither's parental rights and grant counsel's motion to withdraw.

On July 22, 2012, the Department of Human Services took emergency custody of ten-year-old A.D., four-year-old I.G., two-year-old E.G.1, eighteen-month-old E.G.2, and six-month-old D.G.[1] The Crawford County Sheriff's Office had been called to the home where the family was staying for a domestic-violence dispute, and officers subsequently contacted DHS. A.D. reported that Gaither had hit her in the neck and that Duncan had stood up for her, resulting in a fight between the couple. A.D. said that Gaither hit and strangled Duncan. A.D. and I.G. stated that their parents fought all the time. Duncan and Gaither denied any domestic violence, and Duncan claimed that finger-shaped bruises on her neck and a cut on her nose were the result of a fall. Duncan had warrants out for her arrest.

Duncan told the family service worker, Erica Eneks, that they had moved to Arkansas from Missouri about three weeks before and had only been in Crawford County about a week and a half. They did not have food stamps or WIC, but Duncan said she planned to apply. Neither parent had a job or a vehicle. There was no food in the home other than old food on the kitchen floor. Cigarette butts and dirty diapers were littered throughout the home, the mattresses in the children's room were smeared with feces and smelled of urine, and most of the children's clothes were urine-soaked.

The children were subsequently adjudicated dependent-neglected based on domestic violence, inadequate food, and environmental neglect. The goal of the case was reunification. A review order entered on April 11, 2013, noted that the parents had partially complied with the case plan by attending parenting classes, submitting to psychological evaluations, and having a home. Duncan was employed, but Gaither had not provided proof of employment and had tested positive for methamphetamine. The court stated that DHS had the discretion to increase visitation to overnights and weekends with the approval of the attorney ad litem.

On April 19, 2013, DHS filed a motion to suspend Gaither's visitation, stating that A.D. had disclosed to the caseworker that Gaither had sexually abused her years ago.[2] DHS also claimed that I.G. had begun to exhibit sexualized behavior. After a hearing, the motion was denied, but Gaither was ordered to undergo a psychosexual evaluation. On July 9, 2013, Duncan gave birth to her sixth child, G.G. Gaither was alleged to be the father. G.G. was placed in DHS custody and he was later adjudicated dependent-neglected due to parental unfitness. In August 2013, the goal of the case was changed to adoption and termination of parental rights.

The termination hearing was held on November 14, 2013. Erica Eneks, the family's caseworker, testified that the five oldest children had been out of their parents' custody for sixteen months. Eneks said that Duncan had substantially complied with the case plan and court orders, but she had not shown enough progress. Duncan lived in a three-bedroom home in Fort Smith by herself and had rooms set up for the children. The home was clean and had enough food for her. Duncan had been employed at McDonald's for the past six or seven months and had worked at Burger King before that. Duncan had never tested positive for drugs, and she had no outstanding criminal matters. She had completed parenting classes, parenting-without-violence classes, and domestic-violence classes. The doctor who conducted Duncan's psychological evaluation had no concerns about the children being returned to Duncan.

At the previous hearing in August 2013, Duncan stated that she would leave Gaither "if push came to shove, " and the court informed her that it had. Both parents said they were no longer in a relationship, but Eneks questioned whether they had really separated. She said that Duncan seemed to always know where to find Gaither despite him not having a phone. Eneks also believed that Gaither had helped Duncan pay her bills, but the parties denied this and Eneks agreed that she had no independent proof. Eneks wrote in the court report that she contacted the Fort Smith Water Department on October 28 and discovered that Duncan's account had been terminated and a new account had been opened in Gaither's name. Duncan said she had no intention of getting back together with Gaither and did not know where he lived.

Duncan testified that she earned $375 to $400 bi-weekly. She said that she did get behind on her bills when she was off work for about six weeks after giving birth to G.G. However, she said she had caught back up, and her last water bill was $21. Her electric bill was about $60 a month, and her rent was $400. She had lived in that home since February 2013. Duncan said that she had been receiving food stamps and had a cell phone paid for by the government. She planned on trying to get a better job. Duncan testified that the first time DHS told her she needed to obtain a vehicle was at the last staffing. She planned to get a vehicle but would use the bus until she did.

The parents had visitation with the children once a week. After their separation following the August hearing, their visitation was separate. Eneks said that Duncan attended all but one of the visitations but she had difficulty supervising all six of the children at the same time. Eneks noted that Duncan had not moved past supervised visits with the children. Duncan explained that if the children were returned to her, she planned to have a babysitter care for the youngest four children while she worked and the oldest two were in school. Duncan felt that she could budget for a babysitter and said she knew of DHS programs to help her with the children that she could apply for if they were returned.

Duncan was participating in individual and family therapy with Leina Nguyen, a therapist with Ozark Guidance Center. Nguyen began seeing I.G. in March 2013 and A.D. and Duncan for family therapy in June 2013. Nguyen then recommended Duncan receive individual counseling, which began in September 2013. Duncan initially denied any abuse and minimized events that had occurred in the home. However, Nguyen said, she had become more open to discussing the issues and actively participated in their sessions. Nguyen said that they had been working on identifying safety issues and helping A.D. process the domestic violence that she witnessed and that was inflicted on her. Duncan was not named as an abuser. Nguyen said that A.D. had taken on the role of parent in order to keep the family ...

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