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Bell v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

September 28, 2016

MARKITA BELL APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. JV-2013-582] HONORABLE LEIGH ZUERKER, JUDGE

          Leah Lanford, 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 child.

          CLIFF HOOFMAN, Judge

         Appellant Markita Bell appeals the May 27, 2015 order of the Sebastian County Circuit Court that terminated her parental rights to her daughter LB, born in September 2013. Appellant does not contest the multiple statutory grounds that were found to support the termination of her parental rights. On appeal, she presents two points, arguing that (1) the trial court's finding that termination of parental rights was in LB's best interest is clearly erroneous; and (2) the trial court's decision to deny appellant's motion for a continuance constituted an abuse of discretion. We affirm.

         First, we examine the chronology of events and the evidence presented to the trial court. On October 7, 2013, the Department of Human Services ("DHS") filed a petition for emergency custody of LB. DHS had received a referral from the hospital where LB was born. LB's date of birth is September 26, 2013. Appellant had not had prenatal care, and she tested positive for THC at the time of giving birth. LB was a premature baby and had difficulty feeding. Despite instruction and assistance, appellant had not shown the ability to feed her baby independently, nor had she shown appropriate attentiveness to the baby's needs in order to take LB home. DHS noted in its affidavit that appellant herself had been in foster care for substantial periods of time during her minority and that appellant had other interactions with DHS regarding her older daughter AB. An ex parte order for emergency custody was granted.

         A probable-cause hearing was conducted on October 8, 2013, wherein probable cause was found to keep LB in DHS custody.[1] Appellant was permitted to have two-hour supervised visits, three times per week, contingent on passing a drug screen. She was appointed an attorney.

         Following an adjudication hearing in December 2013, LB was found to be dependent-neglected with appellant stipulating that she had put LB at significant risk of harm resulting from her inadequate supervision and drug use. Both her lack of prenatal care and her postnatal apathy in caring for LB were found to support a finding of dependency-neglect. A case plan was developed, and appellant was ordered to comply with DHS directives. Appellant was ordered to maintain stable and appropriate housing, income, and transportation; complete parenting classes; complete a psychological evaluation and all recommended treatment; complete a drug-and-alcohol assessment and all recommended treatment; visit LB regularly; and cooperate with intensive family services.

         The case was reviewed in February 2014. Appellant had tested positive for THC and opiates in January 2014 and for opiates in February 2014, she had not completed parenting classes, and she had refused DHS access to parts of her home. Appellant had complied with the case plan in other ways, including obtaining appropriate housing, completing a drug-and-alcohol assessment, completing a psychological evaluation, and visiting regularly. DHS was determined to have made reasonable efforts to provide services to achieve the goal of reunification with LB, and reunification remained the goal.

         In August 2014, a permanency-planning hearing was conducted. The concurrent goals for LB were to reunify with her mother and to terminate parental rights and effect adoption. Appellant was deemed partially compliant. Appellant had not participated in family counseling as recommended, had not completed parenting classes, and had not visited LB regularly.

         A fifteen-month permanency-planning hearing was conducted in November 2014. At this point, it was apparent that appellant's efforts toward reunifying with LB had waned. The goals remained the same, with the trial court remarking that appellant had moved five times during the pendency of this case and was currently living in a hotel, had failed to maintain contact with DHS, and had last visited LB on September 5, 2014. DHS was deemed to have provided reasonable efforts toward achieving reunification.

         On January 29, 2015, DHS filed its petition to terminate appellant's parental rights to LB. DHS alleged several statutory grounds, acknowledging that LB had been outside of her mother's custody for well over a year. DHS's statutory grounds included (1) failure to remedy the causes of removal, despite meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal; (2) willful failure to maintain meaningful contact with LB; (3) abandonment of LB; (4) subjection of LB to neglect or abuse that could endanger the life of the child; (5) manifestation of incapacity or indifference to remedying subsequent issues or factors that have arisen since the initial petition's filing; (6) subjection of LB to aggravated circumstances (namely, abandonment); and (7) subjection of LB to aggravated circumstances (namely, that there is little likelihood that services will result in reunification). Recitations of extensive specific facts followed each alleged statutory ground. Emphasis was placed on appellant initially showing a lack of ability or interest in caring for her baby; her repeated moves in residence; her having completely stopped visiting with LB after September 5, 2014, essentially abandoning LB; and her failure to achieve reunification after eighteen months of services being provided to her. The termination hearing was initially set to be heard on February 17, 2015, but it was continued to March 3, 2015.

         On March 2, 2015, private attorney Frank W. Booth entered his appearance on behalf of appellant and asked that appellant's appointed attorney be relieved. On March 3, 2015, attorney Booth filed a motion for a continuance, asserting that he was hired on February 27, 2015, following appellant's having been advised by her appointed attorney that she should give up her parental rights. Booth requested a continuance of at least sixty days in order ...


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