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Mode v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

February 11, 2015

BRENDA MODE AND CALVIN MODE APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN APPELLEES

APPEAL FROM THE PERRY COUNTY CIRCUIT COURT [NO. PR-2013-17] HONORABLE WILEY A. BRANTON, JR., JUDGE

J. Brooks Wiggins, for appellant.

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor children.

ROBERT J. GLADWIN, CHIEF JUDGE

On April 11, 2014, the Perry County Circuit Court dismissed Brenda and Calvin Mode's petition for adoption, finding that they had presented no evidence that appellee Arkansas Department of Human Services (DHS) consented to the adoption or that DHS was unreasonably withholding its consent. On appeal, appellants argue that the circuit court's decision was clearly against the preponderance of the evidence. We affirm.

Appellants, the maternal grandmother and step-grandfather, filed a petition on April 29, 2013, seeking to adopt their four grandchildren, J.A.H., A.F.D., G.A.D., and T.A.A. They alleged in their petition that they did not have certified copies of the children's birth certificates; that the children were in DHS custody; that the children's mother's parental rights had been terminated on January 23, 2013; and that it would be in the children's best interest to be placed with them.

At the adoption hearing held March 13, 2014, appellant Brenda Mode testified that her daughter, mother of the four children, was living in a trailer next door when the four children were taken from her into DHS custody in 2011. During the pendency of the DHS case, appellant was granted visitation with the children every week. The oldest child had previously been taken into DHS custody in 2006 because of the mother's drinking. Appellant had temporary custody of that child for about a year before that case was closed and the child was returned to her mother. Appellant testified that she had filed for guardianship of the four children but was not awarded guardianship because of her close relationship with her daughter, the children's mother.[1]

Appellant stated that she had ended her relationship with her daughter in October 2012, when the daughter had her parental rights terminated because she had failed a drug test. She said that her daughter no longer lived next door, and she is not welcome in appellants' home. Appellant said that the children's ages were eight, seven, six, and four, and the last time she had seen them was in February 2013. She said that she did not miss a visit while the children were in DHS custody, even though DHS had made it difficult to visit. She testified that DHS had not been supportive of her visits because "they th[ought] I was enabling my daughter. They did not come out and say it." Appellant said that she lived in Morrilton and had worked at Semco for the last five years, making $14.94 per hour, and had a house in Houston, Arkansas, that she rented out.

On cross-examination, appellant testified that the children were placed in foster care in 2011 because of a bruise on A.F.D. She said that it was alleged that her daughter had hit the child. She said that she did not know what happened because she did not witness the incident. She said that she took the position at the time that it had been an accidental injury. She explained that she knew the children had "bumped heads" and felt that the bruise could have resulted from that.

The circuit court examined the witness, and she testified that she had been married for twenty-three years and had four children. Her first husband died in 1999. She married appellant Calvin Mode on January 4, 2013, after having lived with him for eleven or twelve years. She said that they got married because they wanted to adopt the children. She testified that she had "disassociated" herself from her daughter because of her daughter's drug use. She said that she had not seen her daughter for over a year and that she and her husband told her daughter not to come back.

Appellant Calvin Mode testified that he and his wife had been together since 2001, but married when they planned to adopt the grandchildren. He said that they lived in Morrilton and that he worked at Arkansas Kraft making $26 an hour. He said that he was present with the children the night before DHS took them into custody. He explained that the two oldest children had been playing with the dog, and the dog jumped up and licked J.A.H.'s face. When that happened, J.A.H. "popped up" and hit A.F.D.'s face. He said that he had never seen the children's mother hit them, but that the children would say that "Momma's mean to me." He said that he was there when DHS first took J.A.H. in 2006, and he was there when all four children were born. He said that the children would stay with them for long weekends. He never saw the children's mother use drugs, but he said that he always thought she had "PDA or whatever disease where she kind of laughs and cries." He stated that the last time he saw the children's mother she was in court and failed the drug test. He said that she was not welcome in his home and would never be because he loved his grandchildren. He said that he had not refused to submit to a background check and has had one. He said that he loved the children and would give them a good education and supply what they needed. He said that he disciplines by using a time-out and would not spank them. He claimed that he was financially able to provide for the children and had insurance through his work. He said that he was not concerned about the children's mother because "she is not coming around me."

DHS moved for a directed verdict, arguing that pursuant to Arkansas Code Annotated section 9-9-212 (Supp. 2013), the adoption petition did not include FBI background checks. Also, DHS claimed that the birth certificates were not provided. Further, DHS argued that under Arkansas Code Annotated section 9-9-206 (Supp. 2013), consent was not provided from DHS, and the petitioner did not present any evidence that DHS had unreasonably withheld its consent. Finally, DHS asserted that a home study was attached to the petition for adoption, but it was not presented to the circuit court as evidence at the hearing. The attorney ad litem agreed with DHS's arguments.

Appellants argued that the home study had been filed of record and that they did not have access to the birth records of the children. They argued that the background checks had not been done, but that the issue could be remedied. They argued that the testimony revealed that DHS unreasonably withheld its consent because appellants had "made significant progress since the last time they were in court." They argued that the court's concerns about the "intertwined relationship between [appellant Brenda] Mode and the mother have been satisfied." They claimed that, considering the close relationship they ...


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