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Ellis v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Divisions I, II

June 8, 2016



          Tabitha McNulty, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant.

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

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

          LARRY D. VAUGHT, Judge.

         Ray Ellis is appealing the Craighead County Circuit Court's order denying his motion for placement of his minor child, C.E., in the custody of his brother and changing the case goal from reunification to adoption with termination of parental rights. We affirm.

         I. Facts and Procedural History

         Ray lived with his wife, KayAnn Ellis, and her two children from a previous relationship, K.T.1 (born January 16, 2008) and K.T.2 (born February 14, 2012). On January 14, 2014, the Department of Human Services (DHS) exercised an emergency hold on K.T.1 and K.T.2[1] for truancy, neglect, and allegations that Ray had physically abused KayAnn.[2] K.T.1 and K.T.2 were subsequently adjudicated dependent-neglected.

         KayAnn gave birth to C.E. on August 18, 2014, and he was immediately placed in DHS custody because his half-siblings had been adjudicated dependent-neglected. C.E. was then adjudicated dependent-neglected based on findings that KayAnn had tested positive for drugs at the time of his birth, his siblings were currently in DHS custody, and KayAnn had alleged that Ray had physically abused her. At the adjudication hearing, the court ordered Ray to complete parenting classes and a drug-and-alcohol assessment, maintain safe and stable housing, maintain stable employment, submit to a psychological evaluation, and attend domestic-abuse counseling, among other requirements of the case plan. DHS was ordered to make referrals for domestic-abuse counseling and conduct a home study on Ray's brother, Josh Ellis. The court entered an order expediting the home study under the Interstate Compact on the Placement of Children (ICPC) because Josh and his wife were both serving in the United States Army in Germany.

         On December 12, 2014, the court entered a review order in which it found that KayAnn had tested positive for illegal drugs and was still living with Ray. The court also found that Ray had partially complied with the case plan by beginning parenting classes and attending a drug-and-alcohol assessment but that he had not completed parenting classes or attended any visits with C.E. since mid-November. Ray stated that his work as a truck driver prevented him from attending visits or parenting classes. He had not yet submitted to a psychological assessment or attended domestic-violence counseling. Ray was ordered to pay $45 per week in child support.

         In July 2015, C.E.'s foster parents filed a motion for leave to intervene in the case, arguing that C.E. had been in their care for approximately a year and that they wished to adopt him. They stated that the dependency-neglect case was their only forum for filing a petition for adoption. Attached to the motion to intervene was the foster parents' petition to adopt C.E.

         On August 3, 2015, Ray filed a motion asking the court to consider the home study that had been completed on his brother, Josh Ellis, and Josh's wife, Tamara Ellis. Ray also filed an answer opposing the foster parents' motion to intervene, and later, a motion to dismiss their petition to adopt C.E. DHS also opposed the foster parents' motion and petition.

         On August 28, 2015, the court held a permanency-planning hearing for C.E., at which it also addressed the foster parents' motion to intervene and Ray's motion requesting that C.E. be placed with Josh.[3] Ray, KayAnn, and DHS opposed the motion to intervene, while the attorney ad litem argued in favor of intervention. The court denied the motion to intervene as premature, stating that it would readdress the issue if the case goal later became adoption.

         At the hearing, KayAnn testified that she had not gone to therapy as ordered and had not attended NA/AA meetings. She denied using illegal and prescription drugs for which she had tested positive. She denied that Ray was abusive to her. When asked if she had previously told DHS staff that Ray abused her, she testified that she had "said a lot of things" that were untrue due to pressure from DHS. KayAnn stated that she was in favor of C.E. being placed with Josh. KayAnn denied DHS reports that she was combative and out of control at visitation, requiring DHS to change her visitation schedule to allow for more supervision. Regarding a picture of KayAnn with a black eye, which she had reported to DHS as being a result of Ray's abuse, she testified that the attorney for DHS had instructed her to come to the department with a black eye and falsely accuse Ray of abuse. She stated that she hit herself in the face with a bottle and used makeup to create the black eye that she then blamed on Ray. KayAnn repeatedly denied making numerous other accusations of abuse against Ray. However, she admitted posting on social media an expletive-filled rant against the father of one of her other children in which she threatened that Ray would do physical violence against him.

         Patricia Herring, a DHS family services worker, testified that Ray often missed therapy sessions due to his work schedule. Herring also testified that KayAnn had come to a DHS staffing with a bruise on her face and accused Ray of hitting her. She stated that Ray had always denied physically abusing KayAnn.

         Herring testified that C.E. required some special services, including physical therapy. She stated that DHS's recommendation for C.E. was that he be placed with Josh in Germany, either through permanent custody or adoption. She stated that, other than completing therapy, Ray was cooperating with DHS and complying with the case plan. She explained that the reason DHS was not recommending that C.E. be returned to Ray's custody was that he lived with KayAnn, and his job as a truck driver would mean that day-to-day care of C.E. would fall to KayAnn. Herring testified that DHS believed it was in C.E.'s best interest to place him within the family and that she did not believe placing him with Ray's brother in Germany would diminish his relationship with his siblings, KayAnn's older children, who were also in foster care in Arkansas. Herring stated that she believed Josh would facilitate continued visitation with C.E.'s siblings despite the fact that Josh lived in Germany. When pressed as to why DHS prioritized C.E.'s relationship with an uncle he had never met over his relationship with the siblings he currently visited every week, Herring stated that DHS's preference for placement with Josh was due in part to the animosity that had developed between C.E.'s foster parents and his biological parents.

         DHS program assistant Billie Williams testified that on or about March 23, 2015, KayAnn told her that Ray had stolen her prescription medication, they had argued over it, and he had hit her. KayAnn also told her that Ray had an outstanding warrant for hot checks and that he had admitted using crystal meth. Williams testified that on multiple occasions KayAnn was unable to be drug tested because she failed to give a urine sample, dropped the sample in the toilet, or provided an adulterated sample. Williams stated that during visitation with KayAnn and Ray, C.E. was content but would never laugh like he did with the foster parents. There were visits when DHS workers had to step in because KayAnn appeared to be under the influence of drugs.

         Williams testified that C.E. saw his siblings for at least one visitation per week and that there was a bond between C.E. and his siblings. She said that the children played together during weekly visitation and that the older children often asked about C.E. Williams testified that in the previous year, Ray had attended only nine visits, despite the fact that he had the opportunity to visit C.E. twice per week. Williams also testified that KayAnn had appeared with a "significant injury" to her face and had stated that Ray had struck her in the head. KayAnn told Williams that she was going to file a police report against Ray. Williams stated that, during a staffing, KayAnn and Ray (who was not physically present at the staffing but appeared via telephone) had argued intensely and that she had worried about what would have happened had he been present, given the intensity of his anger.

         Williams testified that C.E. was an extremely happy baby in his foster home and was "overly filled with excitement and love." She stated that he reached for his foster mom and foster dad and constantly crawled to wherever they were. She stated that he "definitely has a very strong bond with the foster parents." She stated that all his needs were being met in the foster home, "and above and beyond." She explained that, at a previous point in the case, C.E. had been hospitalized with meningitis for approximately three weeks. During the hospitalization, his foster parents stayed by his side day and night, in shifts, despite having to drive back and forth to Memphis. She described the foster parents as very attentive to C.E.'s medical needs and reliable with transportation for C.E., rarely asking for assistance from DHS. Williams testified that, after being in the foster home for over a year, C.E. had made substantial progress, was developing normally, and was a normal and happy one-year-old child.

         Kimberly Wilson, a foster-care supervisor, stated that KayAnn's visitation had to be scheduled at a time when a supervisor could be present because there had been numerous incidents in which DHS workers had been unable to calm KayAnn during visitations. Wilson testified that she had witnessed KayAnn and Ray argue and that KayAnn had accused Ray of physical abuse. Wilson stated that because there was an approved home study on Josh Ellis and his wife in Germany, DHS's position was that the court should consider placing C.E. with his uncle. She stated that both the foster parents and the family in Germany wished to adopt C.E., and that adoption was preferable to permanent custody due to C.E.'s age. She also stated that Ray and KayAnn wanted C.E. to be placed with Josh because there was a lot of animosity between the biological parents and the foster parents. She testified that Josh and Tamara Ellis were complete strangers to C.E. and that there was no good way to transition a child to a new home in another country. She said her suggestion would be for the relatives to come stay in Arkansas for a few weeks to allow C.E. to become familiar with them before moving to Germany. Wilson clarified that she had no concerns about how C.E. was being raised in the foster home and there was nothing to make her think that he needed a different placement. She acknowledged that he had bonded to his siblings here in Arkansas. She also noted how unusual and difficult it had been to obtain a home study in another country. She stated that DHS was not recommending placement with the family in Germany for any reason other than the fact that they are biological relatives to C.E. Wilson said that it could also be in C.E.'s best interest to stay with his foster family and remain in contact with his siblings. Wilson stated that she did not know Ray's brother and could not make a recommendation on whether placement with him would be in C.E.'s best interest.

         Ray testified that he had paid child support throughout the case, had been seeing a therapist, and had attended visitation with C.E. Ray stated that if he could not have custody of C.E., he wanted the child to be placed with his brother in Germany. He stated that his brother wanted the child, could be in Jonesboro to pick him up in a few days, and that it was "all set up."

         Ray admitted being argumentative and combative in his drug-and-alcohol assessment. Ray testified that DHS repeatedly changed its complaints against his family because it wanted to keep his children. In 2013, Ray was arrested for endangering the welfare of a minor but testified that he was charged only because the police department was "greedy" and wanted the money from his fine. He acknowledged that he had posted tirades on social media accusing DHS and the attorney ad litem of lying to the court, falsifying reports, "doing a happy dance" when they were able to take someone's child away, and "stealing babies from people for no reason." He claimed that the attorney ad litem was "making money under the table to adopt the children she steals, " was "evil, " and was going to hell. He maintained those arguments in court.

         The attorney ad litem recommended that C.E. remain in his current foster home. She noted that Ray had attended only nine visits during the year. In Ray's household with KayAnn, there was significant instability, drug use, arguing, and serious concerns about physical abuse. She noted that there were two families that wished to adopt C.E.: one in Germany that was biologically related to C.E. that he had never met, and the foster family in Jonesboro with which he was strongly bonded. She stressed that the focus must always be what is best for the child.

         The attorney ad litem noted that the biological parents harbored significant animosity toward DHS and had accused DHS workers and attorneys of lying and wrongdoing. She stated that there had been "a lot of threatening behavior" from Ray, that the court previously had to issue a no-contact order against Ray for the foster parents, and that, given Ray's rant against her in court, she felt that she also needed a no-contact order against him. She recommended changing the case goal to termination and adoption but recommended that the question of which family should be allowed to adopt C.E. should be addressed after termination. She requested that there be no change in C.E.'s placement until that time.

         Ray's attorney argued that C.E. was taken into DHS custody due to KayAnn's actions, which were no fault of Ray's. He acknowledged that C.E. could not be placed with Ray at that time because Ray lived with KayAnn, they were not in a stable relationship, and Ray's job as a truck driver often kept him away from home. He argued that if Ray could not have custody of C.E., the child should be placed with Ray's brother in Germany on a temporary basis. He argued that the law required the court to give preference to relative placement.

         The court found that KayAnn was not credible and that Ray's denials of physical abuse were not credible. The court ordered that C.E. was to remain in his foster home. The court changed C.E.'s case goal to adoption. The court ordered continued, regular, and frequent visitation between C.E. and his siblings. The court granted the foster parents' motion to intervene. The court also ordered that there were to be no additional reunification services to KayAnn and Ray and that ...

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