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Hamilton v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

September 21, 2016



          Leah Lanford, Ark. Pub. Defender Comm'n, for appellant.

          Andrew Firth, County Legal Operations, for appellee.

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

          RITA W. GRUBER, Judge

         Sabrina Hamilton appeals the October 8, 2015 order of the Circuit Court of Washington County that terminated her parental rights and the parental rights of Justin Jackson to K.J. (born on March 4, 2011), B.H.1 (born on January 7, 2013), and B.H.2 (born on February 13, 2014). She challenges the circuit court's findings that the Arkansas Department of Human Services (DHS) had proved that the children would be subject to potential harm if returned to her custody and that there were statutory grounds on which to base termination. Jackson is not a party to this appeal.

         In ordering that parental rights be terminated, the trial court must make two findings by clear and convincing evidence: at least one statutory ground must exist, and termination must be in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015). In making a "best interest" determination, the trial court must consider two factors: the likelihood that the child will be adopted and the potential harm to the child if custody is returned to a parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Clear and convincing evidence is such a degree of proof that produces in the fact-finder a firm conviction regarding the allegation to be established. Harbin v. Ark. Dep't of Human Servs., 2014 Ark.App. 715, 451 S.W.3d 231. Our review of a termination of parental rights is de novo. Id. Our inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous; credibility determinations are left to the fact-finder. Id.

         On April 1, 2014, DHS exercised an emergency 72-hour hold on 3-year-old K.J., 15-month-old B.H.1, and 2-month-old B.H.2 to protect them from harm. The hold was based on DHS's determination that the juveniles were in imminent danger due to Hamilton's exhibiting belligerent, aggressive, argumentative behavior; being under the influence of methamphetamine; and being the children's only primary custodian. On April 4, 2014, DHS filed a petition for emergency custody and dependency-neglect, accompanied by the affidavit of family-services worker Evelyn Ponce setting forth the following events that occurred on April 1 when she went on an investigation and located Hamilton. Hamilton appeared nervous, her hands were "a little shaky, " and she "turn[ed] her head constantly in a jerky way when speaking." When Ponce asked her to undergo a drug screen, she refused and became hostile. Jackson was incarcerated at the time. Ponce telephoned her supervisor and was told to take a hold on the three juveniles. Ponce instructed Hamilton to get the children ready. Hamilton began cussing, then agreed to do the drug test, but would not follow through when she was informed that Ponce would need to be present in the restroom. Hamilton again began cussing and became hostile, so Ponce telephoned the police. Hamilton admitted that her test would be positive for methamphetamine and marijuana. Later, at the DHS office, she agreed to be tested; the results were positive for methamphetamine, amphetamine, and cannabinoids. On April 4, 2014, the court entered an ex parte order for emergency custody of K.J., B.H.1, and B.H.2.

         In an April 10, 2014 probable-cause order, the circuit court found probable cause that the emergency conditions necessitating the children's removal from the parents' custody continued and that it was contrary to their welfare to be in Hamilton's custody due to her "unaddressed substance abuse issues." The order required, in part, that she cooperate with DHS, participate in individual counseling, not use illegal drugs or alcohol, have a drug-and-alcohol assessment and follow recommendations, submit to random drug screens, obtain and maintain stable housing and employment, and follow the case plan and court orders. B.H.2 was to remain in DHS custody and in his separate foster home; K.J. was to begin play therapy; K.J. and B.H.1 were to be placed with their maternal grandmother, Kathleen Standley, subject to a home study, and-while placed there-Hamilton was to have visitation with K.J. and B.H.1, supervised by Standley.

         In a June 9, 2014 adjudication order, the court found that the juveniles were dependent-neglected and at substantial risk of serious harm due to parental unfitness, specifically because of Hamilton's erratic behavior and positive drug tests on April 1 and because B.H.2 had been malnourished. Hamilton was ordered to cooperate with DHS, participate in individual counseling within 30 days, not use illegal drugs or alcohol, submit to drug screens at least bi-weekly, complete 12 hours of parenting classes within 2 months, obtain and maintain stable housing and employment, and follow the case plan and court orders. B.H.2 was to remain in DHS custody, and K.J. and B.H.1 were provisionally placed with Grandmother Standley. The goal of the case was set as reunification with Hamilton.

         In a review order of October 8, 2014, Hamilton was found to be in partial compliance with court orders and the case plan. The juveniles had been removed from provisional custody with Standley and were to remain in DHS custody.[1] Returning them to Hamilton's custody was found to be contrary to their welfare because her progress was insufficient: she had not yet demonstrated stability or an ability to protect the three juveniles and keep them safe from harm. She had not maintained stable housing, had not "participated in random drug screens as requested, " had violated a court order by having unsupervised contact with her children, and had not completed inpatient drug treatment as recommended. She had maintained stable employment, had participated in counseling, and had completed the parenting classes. The goal remained reunification.

         In a permanency-planning order of February 25, 2015, the court ordered that the children remain in DHS custody. The court changed the goal of the case from reunification to adoption and authorized the filing of a petition for termination of parental rights. The court found that Hamilton had not complied with all court orders and the case plan. She had recently been arrested. She had maintained stable housing and employment, had participated in counseling, had completed a 6-month hair-follicle test with negative results, had not "participated in all requested drug screens, " and had not "completed inpatient drug treatment." She had attended visits and submitted to a psychological evaluation, but she had not followed recommendations of the evaluation and had not addressed her substance-abuse and mental-health issues.

         A review hearing was conducted in August 2015. In its review order of August 31, 2015, the court noted that the attorney ad litem had withdrawn her petition for termination. The court noted that Jackson had recently been released from prison and found that the parents had not made sufficient progress. The court found it appropriate to begin supervised in-home visits with Hamilton and Jackson; however, the visits would move to the DHS office "if [K.J.] has increased anxiety or negative reaction to visits being in the home." The court found that Hamilton was not in compliance with "most" of the court orders and case plan:

[S]he has not submitted to weekly random drug screens; she has changed jobs. She has maintained housing with her mother; she completed parenting classes; she has completed counseling; she obtained a private hair follicle test, which was negative. [K.J.] has special needs & anxiety & has ...

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