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Johnson v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

September 21, 2016

MARCUS JOHNSON, SR. APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and M.J., MINOR CHILD APPELLEES

         APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT [NO. JV-2013-71] HONORABLE RALPH WILSON, JR., JUDGE

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, County Legal Operations, for appellee.

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

          ROBERT J. GLADWIN, Chief Judge.

         The Mississippi County Circuit Court terminated appellant Marcus Johnson, Sr.'s, parental rights to M.J., born June 29, 2013. Johnson argues on appeal that the trial court erred because it relied on a ground not pled and the alternative ground pled was not proved because there was no evidence of compliance with the Americans with Disabilities Act (ADA). We affirm.

         I. Procedural History

         Appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on November 26, 2013, alleging that Gloria Chambers, mother of M.J., had violated a no-contact order and had been arrested, resulting in a seventy-two-hour hold being placed on M.J.[1] An ex parte order was signed, and M.J. was placed in DHS custody. On December 2, 2013, a probable-cause order was filed, which found it to be in M.J.'s best interest to remain in DHS custody and for DHS to develop a case plan and provide appropriate services. [2]

         M.J. was adjudicated dependent-neglected on February 13, 2014. The order reflects that M.J. was dependent-neglected because there was no legal caregiver for him when Chambers was incarcerated. The goal of the case was to return M.J. to Chambers's custody, and the adjudication order also reflects that DHS should comply with the ADA because both parents were receiving Social Security Disability benefits (SSD).

         In the May 19, 2014 review order, the trial court ordered that "Mr. Johnson's houseguest shall complete her portion of the home study, " and the goal of the case continued to be the return of M.J. to his mother. The trial court found that DHS had made reasonable efforts to provide services to achieve the goal of the case. The case was reviewed again on August 13, 2014, and the resulting order reflects that the goal of the case remained the same, both parents had completed parenting classes and had watched the video "The Clock is Ticking"; however, but Johnson had tested positive for THC on August 1, 2014. The parents were ordered to submit to random drug screening, and DHS was found to have made reasonable efforts to provide family services to achieve the goal of the case by providing transportation and visitations. Thereafter, the case was continued on October 9, 2014, and again on April 13, 2015, and set for review on June 17, 2015.

         II. Petition for Termination of Parental Rights

         On July 8, 2015, DHS filed a petition for termination of parental rights alleging that M.J. had been out of the custody of his parent for twelve months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied, citing Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Repl. 2015). To support this ground for termination, DHS alleged that the results of Johnson's random drug screens were as follows: August 1, 2014, positive for THC; August 19, 2014, positive for THC; October 6, 2014, negative; October 23, 2014, positive for THC, methadone, amphetamine, opiates and PCP; November 7, 2014, positive for THC; January 14, 2015, positive for opiates; March 13, 2015, positive for opiates; April 10, 2015, negative; May 4, 2015, abnormal test; June 10, 2015, positive for THC and cocaine. DHS also alleged that Johnson had two invalid tests-he tried to put soap in a specimen cup and another urine sample was cold-and had been incarcerated multiple times throughout the case. DHS alleged that a home study could not be completed because Johnson and his roommate would not submit to the required background checks as ordered by the circuit court.

         DHS further alleged that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of M.J. in the custody of the parent was contrary to his health, safety, or welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate their circumstances that prevented the placement of the juvenile in the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). To support this ground, DHS alleged that Johnson had tested positive for illegal substances on numerous occasions as cited above and had been incarcerated several times during the pendency of the case. Also, DHS alleged that Johnson and his roommate had not cooperated in completing a home study. DHS claimed that the potential harm of placing the child with Johnson was that he continued to test positive for illegal substances, and he had "legal issues."

         At the termination hearing on December 14, 2015, Sylvia Ware, a supervisor for DHS, testified that M.J. was taken into custody on November 22, 2013, because his mother had been arrested for violating a no-contact order, and he had been in DHS custody since then. Ware stated that Johnson completed parenting classes, watched "The Clock is Ticking" video, and maintained visitation with M.J. She stated that there were complaints of Johnson being too loud during visitation and that he took his shirt off in the park and allegedly exposed his genital area. Johnson denied this allegation. Ware testified that Johnson had stable income but not stable housing, because he had moved several times during the case. She thought that he was living with his girlfriend at the time of the termination hearing, but neither a background check nor a central-registry check had been performed on the girlfriend. She said that Johnson received $733 per month SSD based on a speech impediment. She testified about the drug screens that Johnson had taken during the pendency of the case and added eight positive results to those listed in the termination petition. She also stated that Johnson had tested positive for cocaine and THC on the date of the hearing. She said that he had completed only one of the twelve outpatient classes recommended based on a drug-and-alcohol assessment. She claimed that she was not aware of a specific offer of transportation to the classes. She said that he claimed that someone had laced his cigarette with cocaine and THC. She also testified that M.J. was adoptable and was already in a preadoptive home, placed together with his sister.[3]

         Gregory Watson, a DHS caseworker assigned to Johnson's case, testified that Johnson was living in a one-bedroom apartment with his girlfriend but intended to move to a bigger place after he was married. Watson said that he had witnessed visitations with Johnson and M.J., and that Johnson loved and cared about M.J. Watson also stated that he had always asked Johnson if he needed a ride, ...


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