APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. JV12-398-D/N. HONORABLE THOMAS E. SMITH, JUDGE.
Elizabeth J. Finocchi, Arkansas Public Defender Commission, for appellant.
Tabitha B. McNulty, County Legal Operations; and Chrestman Group, PLLC, by: Keith L. Chrestman, for appellees.
RITA W. GRUBER, Judge. PITTMAN, WALMSLEY, and WHITEAKER, JJ., agree. VAUGHT and HIXSON, JJ., dissent.
RITA W. GRUBER, Judge
Appellant, Crystal Schaible, appeals from an order of the Benton County Circuit Court terminating her parental rights to her son, Z.B., born June 2, 2012. She contends on appeal that the evidence was insufficient to support the circuit court's decision and that the court abused its discretion in allowing DHS to recall a witness. We find no error and affirm the circuit court's order.
Before this case began, appellant was involved with DHS from 2009 through 2012 regarding two older children. DHS's involvement began when it was discovered that both children had prenatal exposure to marijuana, and DHS involvement continued with investigations into inadequate supervision, food, and clothing; continued drug use by appellant; and homelessness. Appellant's parental rights were voluntarily terminated to those two children on February 7, 2012. The case before us began on June 4, 2012, when DHS initiated a 72-hour hold on Z.B. due to his testing positive for illegal substances at the time of his birth on June 2, 2012. Z.B. was placed in foster care with the family that had adopted his two half-sisters, and DHS immediately filed a petition to terminate appellant's parental rights.
The first termination hearing was held in September 2012, after which the court denied the petition, finding that appellant had, since Z.B.'s birth three months earlier, remained drug-free, attended NA/AA, maintained employment, maintained a stable relationship, and visited Z.B. on a regular basis. The court granted appellant the opportunity to complete the case plan and stated in its order that it expected her to obtain a GED, obtain a driver's license, attend counseling, attend NA/AA meetings regularly, and submit to regular and random drug tests with negative results. The final termination hearing was held a year later in October 2013, and the court entered its order terminating appellant's parental rights on January 7, 2014.
The course of events that led to the termination suggests that appellant did achieve compliance with many of the court's requirements. Immediately after Z.B.'s birth, appellant appeared to be in a stable relationship with a woman with whom she was living, Dani. The court gradually allowed unsupervised visits and, eventually, a trial home placement of Z.B. with appellant and Dani in April 2013, which ended after six weeks, following a break-up between Dani and appellant.
They had left Z.B. with a caregiver while they went on a float trip over Memorial Day weekend. Appellant testified that she had consumed a few beers and Dani had consumed more than a few beers. The two argued regarding Dani's attempt to drive while intoxicated. Dani got upset and left and was later arrested for public intoxication and disorderly conduct. Appellant ended the relationship and moved in with a friend, Gina, for several months thereafter. She and Gina then moved to another place that they shared with Mr. Beltran, appellant's deceased mother's long-time boyfriend, considered by appellant to be a father figure. At the time of the termination hearing, she and Mr. Beltran had signed a one-year lease on another apartment they planned to share without Gina. Appellant testified that she had
been working at Bradford House Nursing Center for three months at the time of the hearing and had taken classes to become a CNA but had not taken the CNA state exam nor obtained her GED.
Although the reports and testimony indicated that Z.B. suffered from developmental delays, for which he attended occupational therapy several times per week, appellant testified when called by DHS that she had no idea why Z.B. needed therapy, that she did not take him to therapy when he was in her care, and that she did not plan on taking him to therapy if custody were returned to her. Appellant was later recalled when presenting her own case, after Z.B.'s therapist testified, and appeared to have experienced a change of heart regarding Z.B.'s therapy. She told the court that she would provide therapy if he needed it. Z.B. also suffers from asthma, and, although appellant is a smoker, she insisted that she did not smoke around him. Appellant also testified that before Z.B. was born, she had a " serious drug problem" and she admitted that she never completed a drug-treatment program. She said that she had attended NA/AA meetings for several months after Z.B. was born but that she had not attended since that time. She also testified that she did get urges to use drugs and had dreams about it but that work kept her mind off of it. Finally, appellant testified that she might be pregnant. The court was concerned about this and requested confirmation before it made its decision. The hearing was continued, and at a hearing several days later, appellant's counsel notified the court that appellant was in fact pregnant.
Z.B.'s foster mother testified that when Z.B. returned from visits with appellant, he was either hungry, tired, dirty, sick, or smelled of smoke. It was also clear from the evidence before the court that the foster mother very much wanted to adopt Z.B.
Melinda Lunn, Z.B.'s occupational therapist, gave a detailed explanation of Z.B.'s delays and of the progress he had made in therapy. She testified that therapy was very important to his development and that failure to acquire the skills he needed could have lifelong consequences. At the conclusion of Ms. Lunn's testimony, the court took a five-minute recess. After the recess, DHS asked to recall Ms. Lunn, which the court allowed over appellant's objection. In this additional testimony, Ms. Lunn described Z.B.'s condition after having come from appellant's care to therapy on the day before the hearing. She said his clothing smelled musty and dirty and that his diaper was very full. She described him as being " sticky" and his hair as " greasy" in back and " crunchy" on top.
Brandon Robinson, one of the DHS caseworkers assigned to this case, testified that appellant's support system, instability, and dependence upon others for housing were concerning. He said that he thought there was a high potential for harm if Z.B. were returned to appellant because she never completed a drug-treatment program despite trying, had multiple partners during the course of the case, and demonstrated poor judgment. He testified that DHS's recommendation was termination. Another DHS employee, Michelle Cutrer-Boggess, was involved with appellant in the previous cases and in this case. She was concerned about appellant's history of making questionable decisions and the consistent instability in her life. She was particularly concerned that appellant, given her ...