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McElwee v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

April 20, 2016



Tabitha B. McNulty, Arkansas Public Defender Commission, for appellant.

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

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


Michael McElwee appeals the Sebastian County Circuit Court order terminating his parental rights to his minor child, M.M. McElwee asserts that the circuit court erred in finding that it was in the best interest of the child to terminate his parental rights. We disagree, and we affirm.

I. Facts

M.M. (born 4/11/2013) was placed in emergency custody of the Arkansas Department of Human Services (the Department) on April 17, 2014, based on reports that Michael had physically abused his wife, Melody Hunt (M.M.'s mother).[1] McElwee was named as the putative father in the affidavit. The affidavit for the emergency-custody order also described the parents' drug use and unsuitable conditions in the home such as no furniture, nowhere for M.M. to sleep, and trash and cigarette butts on the floor within M.M.'s reach. The affidavit also sets forth that a family-service worker had found a one-and-a-half-inch by four-inch healing burn on M.M.'s leg. Melody later explained M.M. had been burned by a floor vent and that McElwee had taken M.M. to a hospital in Sallisaw, Oklahoma, which could not be confirmed by the hospital there. The physician who examined M.M. at the time M.M. was placed in the custody of the Department stated that the burn could not have come from a floor vent.

A case plan was entered May 9, 2014. McElwee was ordered to complete parenting, anger-management, and domestic-violence classes; participate in a drug-and-alcohol assessment; and make himself available for drug screening. He was also ordered to find employment, refrain from drug use, procure stable and appropriate housing, and complete a psychological evaluation. A probable-cause order was entered on May 15, 2014. The circuit court found that there was evidence of circumstances such that immediate action was necessary to protect the child by removing him from the home. Specifically, the circuit court found that there was evidence of parental drug use and domestic abuse, and it found that the burn on the child's leg and the mother's unverifiable story about details concerning the burn supported its finding of probable cause. The circuit court ordered McElwee to establish paternity. McElwee did not appear at the hearing, and he did not have an attorney at that time.

On May 27, 2014, M.M. was declared dependent-neglected after a hearing on the matter at which McElwee appeared pro se. An adjudication order was entered the same day, and in it, McElwee was again ordered to establish paternity; find legal employment; complete the classes listed in the case plan; submit to psychological and drug-and-alcohol assessments and complete any treatment recommended; and he was ordered to resolve any pending criminal matters. The circuit court denied McElwee's request to waive DNA testing.

On October 20, 2014, the circuit court held a review hearing at which McElwee appeared pro se. The review order was entered on December 17, 2014. In its order, the circuit court found that DNA testing showed McElwee to be M.M.'s father and that returning M.M. to his parents' care was contrary to M.M.'s health, safety, and welfare. The circuit court also found that McElwee had not complied with the case plan. Specifically, the circuit court found that McElwee had been incarcerated in the Sebastian County jail, that he had not completed any services, and that he had not exercised visitation with his child. Though the goal of the case was still reunification, the court found that a concurrent goal of adoption was appropriate. At the time of the review hearing, M.M. had been placed with his paternal aunt. A termination hearing was scheduled for January 12, 2015.

On November 3, 2014, the court appointed an attorney to represent McElwee. In its termination petition, the Department alleged several statutory grounds for termination, that McElwee's sister was interested in adopting M.M., that there was potential for harm to M.M. if he was returned to the custody of his parents, and that termination was in M.M.'s best interest.

The termination hearing took place on March 16, 2015. McElwee appeared with his attorney. At the hearing, McElwee testified that he was currently incarcerated at the Varner Unit for delivery of methamphetamine and that his sentence was ten years with ten years' suspended, but that he might be released by the end of the year. He testified that one of his children born prior to M.M. had been adopted. McElwee testified that M.M. had been removed because Melody had made false statements about the domestic abuse and that he had not hit her as she had stated to family-service workers. He testified that when M.M. was burned he called his sister, who was employed as a nurse and that she bandaged the wound and told him how to care for it. McElwee testified that, for that reason, he never took M.M. to a doctor. McElwee testified that he received the case plan only after he had contacted the supervisor for the caseworker assigned to their case and that after he picked up the case plan in May 2014, he began to comply with the order. McElwee testified that there were services available at the Varner Unit and that he was waiting for a spot to open. He stated that he had changed a lot since the removal of his first child, and he asked the court for more time to comply with the case plan. McElwee pointed to his efforts before this case had begun: that he took M.M. to his medical and WIC appointments and that he had been working (out of desperation he had begun selling drugs) and providing for his son. McElwee explained that he had become a Christian, that he loved his son, and that he now understood that his actions affected M.M. McElwee testified that he had completed anger-management classes in prison and that he had been going to NA meetings; however, he did not submit certificates for completion of the program or sign-in sheets for the meetings.

Department caseworker Cheryl Deaton testified that McElwee contacted her and asked her for the case plan, and that she left a copy for him at the front desk on or around May 17. She testified that she had walked McElwee through the requirements, explained to him how referrals for services were made, and was "confident that Mr. McElwee was aware of what he needed to do." Deaton testified that the referrals were made by the Department as ordered; however, she explained that McElwee was rearrested shortly after their meeting, and she was not sure if the referrals got to him. Deaton testified that she was involved in the prior termination of McElwee's parental rights in 2013 and that it was her opinion that McElwee had not made any progress since that time. Deaton stated that "all the issues that were there before are still there" and that "we've had a long-standing history and it's been continual and a pattern." She testified that she did not ...

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