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Rodgers v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

May 6, 2015



Travis Ragland, for appellant.

Tabitha B. McNulty, County Legal Operations, for appellee.

Chrestmas Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.


The Faulkner County Circuit Court granted the Arkansas Department of Human Services' (DHS) petition to terminate the parental rights of appellant Damon Rodgers to his son, T.W., born on October 29, 2011.[1] Rodgers appeals, arguing that there was insufficient evidence to support the termination of his parental rights because the trial court erred in finding that T.W. had been out of his home for twelve months prior to the termination of his parental rights. We affirm the termination.


DHS initiated this action by filing a petition for ex parte emergency custody on April 25, 2013, based on the allegations in the affidavit of Magean Brents, a DHS employee. According to Brents, Rodgers had called the DHS hotline concerned that T.W.'s health and safety needs were not being met by his mother, Tabitha Wilson, who had custody of T.W.[2]Rodgers had T.W. because he had been allowed visitation by Wilson, although it was not court ordered, and Wilson had not called to check on T.W. or to let him know when she would pick up T.W. Brents's affidavit stated that T.W. was in soiled clothing, smelled of cigarette smoke, and had a bruise on his forehead, a scrape on his lip, a burn mark on the top of his head, and other burn marks down his neck. Rodgers told Brents that T.W. had head lice; his clothes were too small and his shoes had dog feces on them; Wilson's home was filthy and unliveable; Wilson smoked around T.W., even though he had breathing problems and was taking breathing treatments; Wilson smoked marijuana and used methamphetamine; Wilson only bathed T.W. once a week; and Wilson did not have diapers or formula for T.W. By order entered on April 25, 2013, the trial court granted DHS's petition for emergency custody; that order also held that the parents had a continuing duty of support to T.W., although no specific amount of support was ordered.

By order entered on June 5, 2013, T.W. was adjudicated dependent-neglected (based on the trial court's acceptance of the parties' stipulation to a finding of dependency-neglect based on environmental neglect). In that order, Rodgers was directed to cooperate with DHS; keep DHS informed of his residence and place/status of his employment and any changes; take medications as prescribed; refrain from using illegal drugs and alcohol; submit to random drug screens; complete parenting classes and demonstrate improved parenting skills; obtain and maintain stable housing and employment; maintain a clean, safe home; and demonstrate an ability to protect and keep T.W. safe. The adjudication order further specifically found that Rodgers had a duty to pay child support, instructing Rodgers to pay $50 per month in support.

By review order filed on August 27, 2013, the trial court found Rodgers had partially complied with the case plan and court orders, having attended some visitations and some parenting classes; having begun to attend counseling; and having had clean drug screens. However, by a subsequent review order filed in December 2013, the trial court found that Rodgers had failed to comply with the case plan and court orders and further found that visitation was appropriate for Wilson, but not Rodgers. In the April 2014 permanency-planning order, visitation for Rodgers was resumed. The trial court found that Rodgers had partially complied with the case plan and court orders by having clean drug screens and having suitable housing, but he had not completed parenting classes and had stopped attending counseling. The trial court, therefore, found that adoption was an appropriate goal.

On May 8, 2014, DHS filed a petition to terminate Rodgers's and Wilson's parental rights, alleging as grounds as to Rodgers that (1) T.W. was adjudicated dependent-neglected and had continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied by the parent; and (2) T.W. had lived outside the home of the parent for a period of twelve (12) months and the parent had willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with T.W.

At the termination hearing, Rodgers admitted that the case was initiated by his call to the DHS hotline. He explained that he had never had custody of T.W. but said that there was a finding in August 2012 that he was T.W.'s legal father. Rodgers agreed he had been ordered to pay monthly child support of $50 but was not current on his obligation-in fact, he admitted that he had never paid child support for T.W. He said that he was going to pay child support but he had recently had a car wreck and incurred some medical bills; he stated he was going to begin paying his child support the next month because he had paid off his medical bills. Rodgers testified that he drew disability of $721 per month, and his stepbrother and his stepbrother's fiancee lived with him. He explained that he was able to pay his bills because he split the bills with his two roommates and he received food stamps. Rodgers admitted his disability check had increased $80 per month, but instead of paying child support, he claimed to have used the extra money to obtain a house and things he needed for T.W. Rodgers said that he visited T.W. when he could, but that he had not visited with T.W. in August and had visited only once in July. Rodgers also admitted that he had not sent T.W. any cards or gifts while T.W. had been in foster care. Rodgers asserted that he had completed both parenting classes and counseling but did not have proof of completion for either. He opined that he should be given custody of T.W., stating that he had everything that T.W. needed, although he brought no proof to the termination hearing.

Beth O'Nash, the family-service worker assigned to the case, testified she had never refused Rodgers services; she had not received proof that Rodgers had completed parenting classes (just a certificate of attendance) or counseling; Rodgers had not given her any gifts or cards to give to T.W.; Rodgers had no trial placements in his home to her knowledge; and while Rodgers had one supervised visit with T.W. since O'Nash had been the caseworker and had been attentive to T.W., he ended the visit about forty-five minutes early. O'Nash admitted that T.W. had been living out of state from February to May 2014, and that there had been three or four visits since May 2014 that were missed due to DHS. O'Nash said that Rodgers did not make up any of the visits he missed due to illness. O'Nash believed that it would be harmful for T.W. to go home with Rodgers because there was no indication that Rodgers would be able to care for T.W.

Monica Spencer, an adoption specialist, testified that the likelihood of T.W. being adopted was very high. She explained that, while there were no prospective adoptive families for T.W. because he was not yet available for adoption, T.W. was a young child with no major ...

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