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Arkansas Department of Human Services v. Veasley

Court of Appeals of Arkansas, Division III

March 16, 2016

ARKANSAS DEPARTMENT OF HUMAN SERVICES APPELLANT
v.
SHANELL VEASLEY AND MINOR CHILDREN APPELLEES

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, ELEVENTH DIVISION [NO. 60JV-15-1164] HONORABLE PATRICIA JAMES, JUDGE

Jerald A. Sharum, Office of Chief Counsel, for appellant.

No response.

KENNETH S. HIXSON, Judge

This is a dependency-neglect case. It was initiated when appellant Arkansas Department of Human Services (DHS) filed a petition for emergency custody of appellee Shanell Veasley's three minor children. The trial court entered an ex parte order for emergency custody, and later entered a probable-cause order. However, on the day after the probable-cause order was filed, the trial court sua sponte entered an order dismissing the petition and closing the file. It is from this order closing the file that DHS now appeals.

For reversal of the trial court's order, DHS raises the following three arguments: (1) the trial court lacked the authority to dismiss the petition absent an appropriate motion pending before the court; (2) the trial court improperly deprived DHS of its right to be heard on the petition and failed to properly address the material issues of fact in dispute before closing the case; and (3) the trial court improperly closed the case because DHS is specifically authorized to place foster children in provisional foster homes during pending dependency-neglect proceedings. We agree that the trial court erred in entering the order closing the dependency-neglect case, and we remand for further proceedings.

The record reflects that DHS took an emergency hold of Shanell's children on September 2, 2015, based on allegations of neglect and parental unfitness resulting from Shanell's illegal-drug use. The following day, on September 3, 2015, DHS made a provisional placement of the children with Sheurika and Mikhael McKeever, relatives of the children. On September 4, 2015, DHS filed a petition for emergency custody and dependency-neglect. Attached to the petition was an affidavit of a family-service worker stating that Shanell had recently given birth to her youngest child and that the infant's meconium had tested positive for THC and opiates. The affidavit further stated that Shanell had a history of cocaine, PCP, and THC use and that she was on probation and attending drug court as a result of a drug conviction. Shanell was drug tested with positive results for marijuana, oxycodone, and benzodiazepines. Shanell admitted smoking marijuana and taking benzodiazepines during her pregnancy. David Porch, the father of the two younger children and with whom Shanell lived, tested positive for opiates, oxycodone, and marijuana. The family-service worker's affidavit concluded:

The mother has subjected [her youngest child] to neglect as evidenced by her meconium drug screen. The mother is currently unfit to parent her children. The mother continued to use drugs even during pregnancy and during the pendency of her drug court case. The mother reports that she has postpartum depression and is not taking her depression medication. The mother is often emotionally distraught, sitting around and crying continuously. The mother admitted to buying illegal drugs and chose to engage in drug activity while pregnant. The mother has a history of drug use and even admitted to being high in the presence of the children. The juveniles' health and safety are in danger due to concerns relating to the above.

Later, on September 4, 2015, the trial court entered an ex parte order for emergency custody, finding that there was probable cause that the juveniles were dependent-neglected, that it was contrary to the welfare of the juveniles to remain with their mother, and placing the children in DHS custody.

A probable-cause hearing was held on September 14, 2015. On the day of the hearing, Shanell tested positive for THC, cocaine, and benzodiazepines. The parties stipulated at the hearing that probable cause existed at the time of the emergency DHS hold and continued to exist due to Shanell's drug use. The trial court accepted the parties' stipulation of probable cause, and the following exchange occurred between the trial court and counsel for DHS:

DHS Counsel: Right before the children were called up I was informed that the children were placed in a provisional placement and I wanted to let the court know because I know what the court's policy is. They were placed on September 3rd with a relative with the last name M who started the process-
Trial Court: Why did you file a petition if the children were placed somewhere?
DHS Counsel: They were placed ...

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