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Lively v. Arkansas Dep't of Human Services

Court of Appeals of Arkansas, Division I

February 25, 2015

JONATHAN LIVELY, APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN, APPELLEES

Page 384

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. No. JV 2013-213-3. HONORABLE STACEY ZIMMERMAN, JUDGE.

Canova Law Firm, by: Adell Ralson, for appellant.

Tabitha Baertels McNulty, Office of Policy & Legal Services, for separate appellee Arkansas Department of Human Services; and Chrestman Group, PLLC, by: Keith L. Chrestman, for separate appellees minor children.

LARRY D. VAUGHT, Judge. HARRISON and WHITEAKER, JJ., agree.

OPINION

Page 385

LARRY D. VAUGHT, Judge

Jonathan Lively appeals the Washington County Circuit Court's termination of his parental rights to his two children, K.L.1 and K.L.2. He argues that (1) he was denied due process because he was not properly served with the dependency-neglect adjudication petition and notice of the hearing, (2) there was insufficient evidence to support any statutory grounds for terminating his parental rights, and (3) the court erred in determining that termination would be in the children's best interest. We find no error as to Jonathan's first two points but agree that the circuit court erred in determining that the termination was in the children's best interest. We reverse and remand.

Jonathan Lively is a military veteran who, since returning from combat in Iraq, has suffered from post-traumatic-stress disorder (" PTSD" ) and struggled with substance abuse. On March 21, 2013, Arkansas Department of Human Services (" DHS" ) filed a petition for ex parte emergency order requesting a " less than custody" order placing Jonathan's two children in the custody of his wife and their biological mother, Kayla Lively. The court granted the request based upon an affidavit by a DHS investigator, which contained Kayla's allegations that Jonathan had a history of substance abuse, had sexually abused their daughter (although the affidavit noted that these allegations had been found to be unsubstantiated), and had been violent toward Kayla. A probable-cause hearing was held on March 27, 2013, at which Jonathan was not present. The court found probable cause and issued a no-contact order based upon findings that Jonathan used drugs, had been violent, and suffered from PTSD and mental-health issues. The court appointed an attorney for Jonathan and ordered DHS to serve him. A dependency/neglect adjudication hearing was held on May 8, 2013. Jonathan did not appear at the hearing. His appointed attorney appeared and represented to the court that Jonathan was undergoing drug-rehabilitation treatment at the VA hospital. Based upon a stipulation by the parties, the children were adjudicated dependent/neglected due to Jonathan's on-going drug use, his mental health and PTSD, and domestic violence in the home. The court again ordered that Jonathan have no contact with the children but anticipated that he would be able to exercise supervised visitation after being discharged from the rehabilitation program and completing three random drug screenings.

Kayla brought the children to visit Jonathan at the VA on two occasions, and both visits went well and were without incident. Jonathan graduated from the rehabilitation program on July 4, 2013. There is a factual dispute about where Jonathan lived upon leaving the program. He testified that he lived with Kayla and the children until August 2013, but Kayla denied that he lived there. In August 2013, Jonathan relapsed into substance abuse and returned to the VA for rehabilitation services. After leaving the VA for the second time, Jonathan went to live with his parents and officially separated from Kayla.

Jonathan contacted DHS and attempted to exercise visitation with his children. DHS gave Jonathan a drug test at his request, which was negative, but two subsequent tests were positive. In September

Page 386

2013, Jonathan was arrested for public intoxication. At a review hearing on October 2, 2013, the court again ordered that Jonathan could have no contact with the children.

At a permanency-planning hearing on January 15, 2014, the court ordered the attorney ad litem to file a petition to terminate Jonathan's parental rights. The court also ordered Jonathan to pay child support and ordered that he have no contact with the children. The petition for termination of parental rights was filed on February 13, 2014. In support of termination, the petition alleged that (1) Jonathan had not had custody of the children for twelve months; (2) despite meaningful effort by DHS, the conditions which caused removal still existed; (3) Jonathan willfully failed to provide significant material support in accordance with his means; (4) he failed to maintain meaningful contact with the children, (5) he was mentally unstable and suffered from PTSD and other mental-health issues; (6) he had a history of ...


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