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Kerr v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

May 18, 2016

CHARHON KERR APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. JV-2011-793] HONORABLE LEIGH ZUERKER, JUDGE

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          Jerald A. Sharum, County Legal Operations, for appellee.

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

          RITA W. GRUBER, Judge

         Charhon Kerr is appealing the Sebastian County Circuit Court's order terminating her parental rights to K.K. (born December 10, 2000) and C.M. (born September 4, 2002). She contends that the trial court erred in granting the termination because there was no evidence to establish that the Arkansas Department of Human Services ("DHS") engaged in meaningful efforts to correct the cause of the children's removal. She also argues that the trial court lacked evidence of adoptability and therefore that its best-interest determination was clearly erroneous. We affirm the court's finding regarding grounds, but we find merit in her second point, and we reverse and remand.

         The case began on December 11, 2011, pursuant to an investigation prompted by a call to the Arkansas Child Abuse Hotline, and the children were removed from the home after Kerr tested positive for methamphetamine. The children were adjudicated dependent- neglected on March 29, 2012, with a goal of reunification, and placed in the temporary custody of their maternal great-grandparents.

         In a review order entered on August 15, 2012, the trial court found that DHS had made reasonable efforts to provide services to Kerr, including parenting classes, visitation, drug-and-alcohol assessment, psychological evaluation, drug screening, and drug-treatment referrals. The court found that the mother had partially complied with the case plan by attending parenting classes, obtaining a drug-and-alcohol assessment, obtaining a psychological evaluation, and submitting to drug screening. Kerr still did not have stable housing or sufficient income, and she continued to use illegal substances. In fact, the court found that Kerr had used marijuana within three days of the hearing and methamphetamine within two to three weeks of the hearing. Finally, the court found that Kerr had attended a residential drug program but left without completing the program.

         The court held a permanency-planning hearing in December 2012 and changed the goal to termination of parental rights and adoption. The court found that Kerr still had insufficient income, continued to test positive for drugs, and had not completed parenting classes. The court again determined that DHS had made reasonable efforts to finalize a permanency plan and provide necessary services. DHS filed a petition for termination of parental rights on January 14, 2013.

         However, Kerr began to turn things around at that point and, in a review order entered on March 15, 2013, the court found that Kerr had made "significant progress" in her case plan since the permanency-planning hearing and authorized a trial placement of the children with her. The children were returned to Kerr's custody after a review hearing held on May 16, 2013.

         Kerr's rehabilitation was short-lived. Kerr reported to her caseworker that she had relapsed, and she tested positive for THC on August 27, 2013. K.K. later discovered what appeared to be methamphetamine under Kerr's bed in February 2014, and on March 12, 2014, Kerr tested positive for THC and methamphetamine. On March 14, 2014, DHS filed a petition for emergency custody, which the court granted that same day.

         In a custody order entered on April 24, 2014, the trial court found that DHS had made reasonable efforts to provide services to Kerr to prevent the need for removal of her children from her custody, but that the services had not been successful because of Kerr's drug addiction and relapse into drug abuse. In an August 2014 permanency-planning order, the court changed the goal of the case to termination and adoption with a concurrent goal of permanent custody with a relative. The court found that Kerr had not complied with the case plan and had not successfully addressed the conditions that caused removal because she was still suffering from both mental-health issues and drug-abuse issues.

         In a January 2015 review order, concerning review hearings held on September 25 and November 20, 2014, the court found that Kerr had made "some progress" and was attending counseling and visiting as permitted. The court set the concurrent goals of reunification with the mother and termination of parental rights and adoption. The court found that DHS had again made reasonable efforts to provide services to achieve permanency and that Kerr had made "some progress with the caseplan" by maintaining stable housing, attending counseling, visiting with the children as allowed by their treatment providers, and submitting to random drug screens.

         On April 2, 2015, DHS filed a petition for termination. After a termination hearing on June 25 and July 1, 2015, the court entered an order terminating Kerr's parental rights. The court based its decision on three grounds: (1) the children had been adjudicated dependent-neglected, they had continued out of the home in excess of twelve months, and despite a meaningful effort by DHS to rehabilitate Kerr and correct the conditions that caused removal, the conditions had not been remedied; (2) subsequent to the filing of the original petition, other factors or issues arose that demonstrated that the return of the children to Kerr was contrary to their health, safety, or welfare and that, despite the offer of appropriate services, Kerr had manifested the incapacity or indifference to remedy the issues or to rehabilitate her circumstances; and (3) Kerr subjected the children to aggravated circumstances: specifically, there was little likelihood that further services would result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), (vii)(a), and (ix)(a)(3) (Repl. 2015).

         In support of these grounds, the court found that the children had been removed from Kerr twice, both times due to her mental instability and drug use, and that Kerr had been referred for services to address these issues but still struggled with them. The court noted that Kerr had continued to use drugs and had admitted in the hearing that she had used marijuana as recently as a week before the hearing and had sold methamphetamine after the children's second removal. The court also found that Kerr's mental-health issues had increased since the initial petition. The court stated at the hearing that she appeared visibly unstable and had refused to disclose her address to the court for unknown reasons. Finally, the court found that DHS had provided appropriate services to Kerr for a substantial period of time-over three years-but that she had not benefited from ...


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