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Yarbrough v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

September 21, 2016

JOSHUA YARBROUGH APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES APPELLEE

         APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. JV-2013-106] HONORABLE KEN D. COKER, JR., JUDGE

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

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          CLIFF HOOFMAN, Judge.

         Appellant Joshua Yarbrough appeals from the order of the Johnson County Circuit Court terminating his parental rights to his three children, N.Y. (DOB 8/9/09), D.Y. (DOB 03/21/11), and J.Y. (DOB 04/17/13).[1] On appeal, Joshua challenges the sufficiency of the evidence to support the termination, arguing that there was no evidence that the Arkansas Department of Human Services (DHS) offered appropriate family services in a timely fashion. We affirm.

         The facts giving rise to this case began on November 20, 2013, when DHS received a call from N.Y.'s daycare center with concerns that the child's mother, Candace Yarbrough, was under the influence of an unknown substance. Candace admitted that she would fail a drug test, and DHS placed a seventy-two-hour hold on the children. Both Candace and Joshua tested positive for methamphetamine, amphetamine, marijuana, and opiates. DHS filed a petition for emergency custody on November 22, 2013.

         An order for emergency custody was entered by the circuit court on November 22, 2013, and a probable-cause order was entered on December 17, 2013. The circuit court ordered Joshua to undergo random drug testing, obtain a drug-and-alcohol assessment and complete all recommendations, attend and complete parenting classes, and obtain and maintain stable housing and employment. Supervised visitation was awarded contingent upon the parents' negative drug screens.

         The adjudication hearing was held on January 7, 2014, and the circuit court found that the children were dependent-neglected based on inadequate supervision due to the Yarbroughs' drug use. The goal of the case was set as reunification with the parents. At a review hearing in March 2014, Joshua was ordered to attend inpatient drug treatment, and the Yarbroughs were ordered to attend marriage counseling.

         Following a June 2014 review hearing, a trial home visit with the children was authorized, and custody was then returned to the Yarbroughs at the August 2014 review hearing. Both parents were ordered to submit to homemaker services. On September 15, 2014, DHS filed an ex parte motion for an emergency change of custody, alleging that Candace was suffering from a delusional mental state, that Joshua was not concerned about her mental state, and that he was unable to ensure the health and safety of the children. An order granting an emergency change of custody was entered the same day; however, the circuit court returned the children at the probable-cause hearing on October 7, 2014, finding that the emergency conditions necessitating removal no longer existed.

         The children were again removed from the Yarbroughs' custody at the next review hearing on December 16, 2014, because they had both failed hair-follicle drug tests and would not allow DHS into their home. Joshua was ordered to attend and successfully complete outpatient drug treatment.

         A permanency-planning hearing was held in March 2015, and the circuit court continued the goal of reunification with the parents, because it found that DHS had not provided outpatient drug treatment to Joshua as it had previously been ordered to do. The court stated that the issue of reasonable efforts by DHS would be taken under advisement and would be addressed at the next hearing.

         At the next review hearing in September 2015, the circuit court found that DHS had made reasonable efforts to provide services to the Yarbroughs to achieve the goal of reunification. The court noted that Joshua was now incarcerated and ordered that he take advantage of the services offered while he was in prison, including substance-abuse treatment. A second permanency-planning order was entered on November 3, 2015, and the goal of the case was changed to adoption, with DHS being authorized to proceed with termination of parental rights. The circuit court again noted in that order that the issue of reasonable efforts by DHS would be taken under advisement and addressed at the next hearing.

         A petition for termination of parental rights was filed on November 17, 2015. DHS alleged several grounds for termination, including the failure-to-remedy ground found in Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015) and the subsequent-factors ground found in Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). The petition further alleged that termination was in the children's best interest.

         The termination hearing was held on February 2, 2016. At the hearing, Susan Geels, the caseworker assigned to the family, testified that DHS had provided services to the parents to accomplish the goal of reunification. Geels stated that Joshua had completed parenting classes and inpatient drug treatment in May 2014. However, he then failed his hair-follicle drug test in November 2014 and was ordered to complete outpatient drug treatment, which he had not done. Geels stated that Joshua had moved out of the family home in January 2015 and that he had relocated first to Ozark, Arkansas, and then to Missouri. She indicated that he had not maintained a stable home during that time and that he had been convicted of delivery of methamphetamine in August 2015. Geels testified that Joshua was currently in a prison boot camp while incarcerated and that he had obtained his GED and had completed a substance-abuse program. She stated that his release date was in June 2016. According to Geels, DHS believed that ...


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