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Wafford v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

June 1, 2016



Tina Bowers Lee, 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 children.


Appellants Tiffany Wafford and Freddie Miles appeal the termination of their parental rights to their three children, DJM, DM, and TM. They have filed separate briefs on appeal challenging the trial court's findings that termination was in the children's best interest and that statutory grounds for termination were proved. We affirm.

The Department of Human Services (DHS) took custody of the children at different times, and the cases initially proceeded separately. TM was taken into custody after she was born on September 10, 2013, with drugs in her system. Wafford tested positive for amphetamines and barbiturates but denied drug use. Wafford was then incarcerated on a probation violation on September 18. DM, born August 30, 2012, was removed from Miles's custody on September 23, 2013. Miles refused to take a drug test and acknowledged that he had stopped taking medication for his mental-health diagnosis. There was also evidence of medical neglect. DM had been diagnosed with "failure to thrive" but had not returned to the doctor since he was eleven weeks old, had not received immunizations since he was two months old, and had an untreated ear infection. DJM, born March 26, 2008, had been placed in the custody of Wafford's mother, Belinda Brown, since 2009. DJM was removed from Brown's custody in April 2014 after Brown failed drug tests and refused to cooperate with DHS in a protective-services case. All three children were adjudicated dependent-neglected.

According to Wafford, she violated her probation for fraudulent use of a credit card by failing to report and make payments as ordered, and she was sentenced to three years' imprisonment. After her arrest in September 2013, she remained incarcerated until September 2014. Miles submitted to a psychological evaluation but otherwise failed to comply with the case plan while Wafford was incarcerated. After an initial mental-health evaluation, Miles was diagnosed with major depressive disorder, recurrent, in partial remission, and it was recommended that he undergo a psychiatric evaluation. At a December 2013 psychological evaluation, Miles reported that he was uncertain of his mental diagnosis for which he received disability benefits. He also reported a history of numerous drug and domestic-violence charges. This evaluation resulted in a diagnosis of personality disorder with passive/aggressive, dependent, and schizoid features. The examiner stated in his report that it was difficult to see how Miles could be an adequate caregiver without intensive psychotherapy, and this would have to be in conjunction with maintaining sobriety.

At an August 2014 permanency-planning hearing, Wafford testified that she would soon be released from prison to a halfway house. The trial court authorized a plan for custody of DM and TM to be placed with Wafford after her release from the halfway house. The court ordered her to obtain safe and appropriate housing and to obtain employment. Miles was still not in compliance with the case plan.

The anticipated reunification with Wafford did not occur. Wafford left the halfway house early, married Miles on October 1, 2014, and began living with Miles. A DHS court report dated October 31, 2014, noted that Wafford's case plan ordered her to establish independent living arrangements separate from Miles. At the November 5, 2014 review hearings, the court found that Wafford had failed to obtain a residence separate from Miles, had not provided proof of employment, and had missed her appointment for a psychological evaluation. The court ordered her to do these things and to complete counseling if recommended. Miles tested positive for methamphetamine twice in October and still failed to attend counseling. The court found that although she was currently clean, Wafford was jeopardizing her sobriety by living with Miles. DHS filed a petition to terminate the parties' rights to DM and TM in November 2014; the petition for termination of their rights to DJM was filed in February 2015.

At the termination hearing, Wafford testified that she had used methamphetamine since she was "a kid" but claimed she had not used any drugs since her release from prison. Wafford had tested positive once since her release, but she disputed the results, claiming that she had never used cocaine and that she had tested negative for her parole officer. Byron Woods, a DHS family service worker, testified that Wafford did not complete any programs Cite as 2016 Ark.App. 299 at the halfway house. She did, however, complete outpatient drug counseling and aftercare in March 2015. Wafford admitted that she had not been to NA meetings in a while, but she intended to go again.

Wafford acknowledged that, like TM, DJM was born with drugs in her system and a case had been opened in California where they were living. Wafford said that she gave DJM to Brown when the child was nine months old because she was in trouble regarding probation in California and at one point served a nine-month sentence there. Wafford acknowledged that she never completed parenting classes or a psychological evaluation but claimed they had not been rescheduled by DHS. She said that she had made some job applications but had not been employed since being paroled. She planned to seek disability benefits for her asthma condition, which had caused several hospitalizations. She did not have a driver's license or a vehicle. Woods agreed with Wafford that the home the parties were living in was suitable.

Woods testified that Miles's compliance was highly sporadic for more than a year. He had numerous positive drug tests and often evaded testing. Miles testified that he had used methamphetamine for ten or fifteen years but he had refused to enter drug treatment because he did not like the therapist and would not have been allowed to continue taking prescription pain medication for a knee condition. However, Miles said that he had attended aftercare and NA meetings with Wafford and was no longer using drugs. His last positive test was on October 31, 2014.

Miles received disability benefits for mental disabilities and testified that he went to a mental-health clinic for medication management. He claimed that he did not need counseling. He never took parenting classes and failed to consistently visit the children while Wafford was incarcerated. He was on probation for forgery and had an upcoming probation-revocation hearing due to nonpayment. He admitted that there had been ...

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