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Ferguson v. Arkansas Department of Human Services

Court of Appeals of Arkansas

May 11, 2016

JACQUELINE FERGUSON AND CHRIS FERGUSON APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. JV-14-89] HONORABLE BARBARA ELMORE, JUDGE

Jerald A. Sharum, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellants.

LARRY D. VAUGHT, Judge

Appellants Jacqueline and Chris Ferguson appeal from the Lonoke County Circuit Court's permanency-planning and termination-of-parental-rights orders as to their adopted children, L.F.1 (DOB 9-22-08), L.F.2 (DOB 8-6-09), and Z.F. (DOB 9-7-10). The Fergusons argue that the trial court clearly erred in failing to follow the preferential goals in the permanency-planning statute, Arkansas Code Annotated section 9-27-338(c) (Repl. 2015), when it authorized adoption and termination of parental rights instead of placing custody of the children with Chris or with relatives. They contend that the trial court's erroneous findings in the permanency-planning order must be reversed, and because these findings led to the termination order, it too must be reversed. We affirm.

On April 3, 2014, the Arkansas Department of Human Services (DHS) petitioned for emergency custody of L.F.1, L.F.2, Z.F., and A.F., [1] alleging neglect, parental unfitness, and physical abuse. An affidavit accompanying the petition alleged that DHS received a report that Jacqueline had beaten L.F.2 and Z.F. (four and three years old at the time) with a vacuum-cleaner attachment, that both boys had bruising that was getting worse, and that they both had black eyes.

In a second affidavit attached to the petition for emergency custody, Tanya Cross of the Arkansas State Police Crimes Against Children Division stated she investigated the report of abuse, which included interviews with Jacqueline and her children in their home. Cross stated that a vacuum-cleaner attachment was lying on a table and that Jacqueline admitted striking the boys with it. L.F.2 and Z.F. said their mom spanked them with a paddle or a spoon and that their mom hurt them. Z.F. stated that his mom had given him a black eye. L.F.1, L.F.2, and Z.F. stated that their mother sprayed them in the face and eyes with water, and Cross observed a spray bottle containing water. Cross also spoke with B.K., the Fergusons' foster child, and A.F., who was seventeen years old. They showed pictures they had taken of L.F.2 with welts and bruising all over his body. When A.F. questioned Jacqueline about the markings on L.F.2, she explained that they had been caused by an allergic reaction. B.K. reported to Cross that Jacqueline punished L.F.2 and Z.F. by "whipping" them, giving them extended time-outs (several hours or all day), pushing them to the floor, making them sleep on the floor or in the bathroom for wetting the bed, or making them sit on the bed or stand at the wall for hours. A.F. told Cross that she had witnessed Jacqueline spank the children in the past and was concerned for their safety. Cross stated that Dr. Karen Farst of Arkansas Children's Hospital and the University of Arkansas for Medical Sciences Department of Pediatrics, after seeing the pictures of the welts on L.F.2, opined that they were a result of an impact injury, not a rash, consistent with being struck with a vacuum-cleaner attachment and that L.F.2 had been abused. An ex parte order for emergency custody was entered.

An adjudication hearing was held on July 1, 2014, and the trial court found that L.F.1, L.F.2, and Z.F. were dependent-neglected based on Jacqueline's physical abuse of the children and Chris's failure to protect them.[2] The goal of the case was reunification, and the trial court ordered the Fergusons to comply with the case plan, which required, among other things, that they maintain stable housing, attend individual and family counseling, participate in visitation, submit to psychological evaluations, and complete parenting classes. Jacqueline was also ordered to attend anger-management and domestic-violence classes. The children were placed in the custody of provisional foster parents, Mindy and Edward Goldstick, the children's maternal aunt and uncle.

A permanency-planning hearing was held on April 21, 2015. Forensic psychologist Dr. Paul Deyoub testified that he performed evaluations on Jacqueline and Chris. Dr. Deyoub stated that Jacqueline showed a great deal of defensiveness; denied having any problems or weaknesses; and was rigid and unyielding. She adamantly denied having problems with or abusing her children despite them having been removed from her custody on that basis and her having been charged with domestic battery for abusing L.F.2.[3] Dr. Deyoub testified that

[i]n this case, no meaningful therapy would do any good in an individual who saw no problem and no deficits . . . what is there to rehabilitate. In her mind there was nothing. And so . . . DHS and the Court would've been faced with an individual jumping through the hoops without any actual commitment to internal changes in herself. And so there is no basis for treatment or therapy. And that means that the children would not have been any safer in her custody . . . .

Dr. Deyoub's testing of Chris revealed that he was submissive, passive, and withdrawn; he lacked attachment; and he was socially inept. Chris deferred everything to his wife, including raising the children. Chris did not stand up for himself in his marriage, and Dr. Deyoub did not believe that Chris stood up for his children. Dr. Deyoub reported that Chris denied that Jacqueline abused their children and denied all evidence of abuse, including evidence presented by A.F., who stated that she witnessed and took pictures of the abuse. Dr. Deyoub opined that because of Chris's continued support of his wife, he would not benefit from treatment or therapy, which precluded him from parenting his children because he would not protect them. Based on his evaluations, Dr. Deyoub opined that the Ferguson case was a failed adoption and that reunification was impossible-opinions he testified that he rarely made. Finally, Dr. Deyoub stated that it would be psychologically damaging for the children to be placed with relatives who did not believe that they had been abused by their parent.

Chris testified that he did not believe that Jacqueline had abused their children and that he intended to stay married to her. When she was released from prison, he wanted her to return home so that they could raise the children together. He added that if he was forced to choose between Jacqueline and his children, he would choose the children. Chris further testified that he was unable to care for the children on his own due to his work schedule. He had no objection to the Goldsticks having permanent custody of the children, but he did not want his parental rights terminated. He said that he had complied with the case plan and had benefited from services.

Jacqueline's brother, Edward Goldstick, and his wife, Mindy, testified that L.F.1, L.F.2, and Z.F. had been living in their home for the past year and were doing well. Edward stated that he did not know if the children had been abused because he did not see abuse and he did not see bruises on them. Mindy testified that she did not believe that Jacqueline had abused the children. Both Edward and Mindy wanted the children to be with Jacqueline and Chris but stated that they were willing to keep the children permanently.

DHS caseworker Christa Jones stated that Jacqueline and Chris complied with the case plan in that they attended counseling and classes, maintained stable housing, visited the children, and submitted to psychological evaluations; however, she said that they never acknowledged the physical abuse, which prevented them from remedying the conditions that caused removal and greatly affected their ability to reunify with the children. Christa testified that Chris's clear preference was to reunite with Jacqueline upon her release from prison and that he wanted both of them to care for the children. Christa was concerned that Chris would not ...


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