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Murphey v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

September 21, 2016

JAMES MURPHEY and BRITANI MURPHEY APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN APPELLEES

         APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. JV-14-128] HONORABLE EDWIN KEATON, JUDGE

          Dusti Standridge, for appellant Britani Murphey.

          Tina Bowers Lee, Ark. Pub. Defender Comm'n, for appellant James Murphey.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          WAYMOND M. BROWN, Judge

         Appellants James and Britani Murphey had their parental rights to their children, J.M., G.M., C.M.1, and C.M.2, terminated by an order of the Union County Circuit Court. On appeal, both appellants argue-in separate briefs-that the trial court's order terminating their parental rights was not supported by clear and convincing evidence. We find no error and affirm.

         This family's history with the Arkansas Department of Human Services (DHS) dates back to 2012. On February 8, 2012, J.M. was removed from appellants for nearly a month due to the home being environmentally unsafe. Services were offered to the family and the case was closed on June 21, 2012. On March 22, 2013, J.M. and G.M. were removed from appellants for approximately two weeks because the house had dog feces all over it and it was unclean and unsafe. Services were again offered to the family, and the case was closed on January 6, 2014.

         A third investigation began in May 2014 for allegations of environmentally unsafe conditions of the home. A petition was filed on June 19, 2014, alleging that all four children were dependent-neglected. When the investigator went to the home she discovered that a dog was in the home, [1] there was little food, trash was all over the floors, there was at least one broken window, the home did not have gas, and the formula for C.M.1 and C.M.2 had not been picked up at the DHS office.[2] However, the children remained in appellants' custody at that time. Before a court date had been scheduled on the dependency-neglect petition, C.M.1 had to be airlifted to Arkansas Children's Hospital (ACH) on July 15, 2014, and was diagnosed with pneumonia and possibly sepsis. Britani went to the hospital to be with C.M.1; James and his girlfriend, Denise Barbine, moved into the home to take care of the other children. During this time, the condition of the home was improved in Britani's absence. DHS filed an amended petition for emergency custody and dependency-neglect on August 8, 2014. The court entered an ex parte order for emergency custody on August 8, 2014, finding that C.M.1 was dependent-neglected and placing him into the custody of James. In the adjudication order entered on November 10, 2014, the children were placed in the joint legal custody of appellants, with James having primary physical custody. The court ordered appellants to do a number of things, including to: follow the case plan; obtain and maintain stable, clean, adequate, and suitable housing; keep all utilities on; and attend and participate in individual counseling. Britani was also ordered to complete parenting classes, undergo a psychological evaluation, complete budgeting assistance from DHS, and take all of her prescribed medications. The case's goal was reunification with Britani with a concurrent goal to remain in James's custody.

         In the court report filed by Eugenia Ford on May 1, 2015, DHS made the following recommendation:

Department is recommending the children remain in the home and custody of Mr. Murphey and for the [sic] Mr. Murphey to follow all court orders. Mr. Murphey needs to ensure the children are clean daily when they go to ECCEL. Mr. Murphey will ensure the children are seen by their PCP if the diaper rash continues to re-occur. Mr. Murphey will [get] rid of one dog and make sure the remaining dog is properly secured out of the reach of the children and any other person that makes visits to the home. Mr. Murphey will ensure the home is free of the large quantity of flies by putting screens on the windows.

         The court entered a review and change of custody order on May 20, 2015.[3] In the order, the court found that James's home had deteriorated to the point that it was no longer safe for the children to remain there. The court noted that the home had "two broken windows, there is a wire hanging from the wall next to [G.M.'s] bed, [C.M.1] was having diaper rash so badly it was bleeding, there were bumps all over [C.M.2's] body and evidence of dogs being in the home despite the previous Court order." The children were placed in DHS custody. The order noted that Britani was incarcerated at that time.

          In the court report filed on July 14, 2015, DHS recommended that the case's goal be changed to adoption "due to the chronic environmental issues in the home." DHS stated that this was the third removal of the children from either one or both of the parents. DHS filed a petition for the termination of appellants' parental rights on September 18, 2015. In the petition, DHS noted its previous history with the family, and alleged that appellants had subjected the children to aggravated circumstances, in that a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification.[4] The review order filed on September 23, 2015, set an October 2015 date for the termination of parental rights hearing. The hearing was continued at the request of James. It took place on November 16, 2015.

         Quiana McGhee, an assessment unit investigator with DHS, testified that she investigated the family twice, and that as a result of the investigations, one or more children had to be removed from appellants' custody. She also stated that she conducted other investigations on the family which did not result in removal. She admitted that she had no involvement in the present case.

         Teresa Johnson, a former investigator with DHS, testified that she filed the petition for dependency-neglect and the accompanying affidavit on the family after visiting the home on May 22, 2014. However, she stated that she was not involved with the removal of the children from appellants. On cross-examination, she stated that she filed an affidavit in another case in which it was alleged that James was the father of one of the children that had to be removed due to environmental concerns on May 2, 2015. She said that the children were removed from a home that belonged to James, and that James was present at the time of the removal.

         Carolyn Samuel, County Supervisor for Union County, testified that the children were not initially removed from appellants when this case was filed. She stated that due to the situation concerning C.M.1, DHS took a hold of him on July 31, 2014, after his release from ACH. Appellants were living in separate homes, and James was subsequently given custody of C.M.1. Samuel testified that the children were adoptable and that their foster parents had expressed an interest in adopting them.

         On cross-examination, Samuel stated that she was not the main caseworker, but that Eugenia Ford was. She said that she was Ford's supervisor. She stated that James had continued to visit the children and that those visits were very interactive. She testified that James usually had several members of his family with him at the visits. According to Samuel, the children appeared to love James and to have a stable relationship with James's parents. However, she stated that she did not think that there was a chance of a possible nurturing relationship between James and the children in the future. She testified that aside from the environmental conditions, James had never physically harmed the children. She testified that James had recently moved into Britani's grandmother's home, which was "a better house than what they were living in, but James was asked to leave that same residence before from the grandmother."

          Eugenia Ford testified that she was the caseworker assigned to the case since October 2014. She stated that different services had been offered to the family since May 2014. She testified that psychological evaluations were never performed due to DHS having a new contract. Those evaluations were scheduled for December. She stated that Britani was currently incarcerated and that there had not been any significant improvement in Britani's situation since the beginning of this case. She opined that the children would suffer potential harm if placed back in Britani's custody because of "lack of housing; her arrests, which she's currently in jail now; she's been arrested twice in June with threatening harm to her husband and significant other and possibly the children; she's been in acute placement and hospital twice; . . . her inability to manage her finances and not wanting assistance from the Department of helping her find housing." Ford stated that she visited James's residence the day before the hearing and that the home was "spotless." She said that James and Denise moved into the residence on October 18, about a month before the hearing. She stated that James had recently begun his court-ordered individual counseling, although it had been ordered for "as long as [she'd] been a part of this case." She said that initial issues arose because Melissa Butler performed a mental-health evaluation on James and stated that she did not have enough information to give him counseling sessions. She stated that she explained to James that he was court ordered to attend counseling and that he started going. She testified that when she visited the home James had the children living in on May 4, 2015, there were issues with the bathroom flooring, there were a "zillion" flies in the house, there were no screens on the window, the back door was half off the hinges, and there were multiple dogs present. However, she said that when she returned to the home in August, the house was better in that the house was cleaner, there were fewer flies, screens were on the windows, and new doors were up.

         Ford testified on cross-examination that James's counseling reports were becoming more favorable. She stated that James's attitude had changed from reluctance to liking to go and talk about what was going on in his life. She said, "In my opinion, as his caseworker, I believe the last couple of months that James is doing all he can do to work services. He's done." She stated that James was trying to repair the problems found in the home in good faith before he moved in October. She said that James's visitations with the children went very well. She testified that the chance of a positive relationship between James and the children depended on the court's order at the end of the hearing. She stated that she visited James's residence the night before the hearing and that she did not see anything threatening to the children at that time. She said that James had attempted to remedy the problems that were brought to his attention. When asked about possible relatives willing to take the children, Ford stated that "[James] mentioned an aunt but that lady is not at her residence. She's in ...


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