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Sutton v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

October 5, 2016



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

          Mary Goff, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          BRANDON J. HARRISON, Judge

         Teria Sutton appeals the order of the Crittenden County Circuit Court that terminated her parental rights to her children M.S.1, D.S., A.S., and N.W.[1] Sutton challenges the statutory grounds for termination. We affirm.

         In September 2013, the Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on newborn A.S. and his four siblings after A.S. had been born with cocaine in his system. Sutton admitted to using cocaine approximately one week before A.S.'s birth and that she had been using cocaine for three or four years. Sutton was ordered to complete parenting classes, watch "The Clock is Ticking" video, obtain and maintain stable housing, obtain and maintain stable employment, submit to a drug-and-alcohol assessment, and submit to random drug screens. The circuit court adjudicated the children dependent-neglected in November 2013 and noted that Sutton had completed parenting classes and submitted to random drug screens. Sutton tested negative for all substances on 25 September 2013 but tested positive for cocaine on 4 October 2013.

         A January 2014 review order found that Sutton had obtained stable housing, completed parenting classes, watched "The Clock is Ticking" video, completed a drug-and-alcohol assessment, submitted to random drug screens, and was attending outpatient treatment. The order noted positive results for cocaine on October 10, October 31, and November 21. The court ordered Sutton to submit to a second drug-and-alcohol assessment and follow the recommendations. An April 2014 review order noted that Sutton had cancelled the second drug and alcohol assessment scheduled on February 10.

         On 20 October 2014, DHS filed a petition for emergency custody of Sutton's newborn baby, N.W., born 11 October 2014. The supporting affidavit noted that Sutton was currently incarcerated at the Regional Punishment Facility in Pine Bluff and that there was no appropriate caretaker for the baby. The circuit court ordered N.W. into DHS custody and later adjudicated him dependent-neglected.

         The court entered its fifteen-month review order in December 2014 and changed the goal of the case to adoption. The order noted that Sutton was currently incarcerated, had not completed her second drug-and-alcohol assessment, and was not consistent with visitation prior to being incarcerated. In June 2015, a review order indicated that Sutton's expected release date was 1 July 2015.

         DHS filed a petition for termination of parental rights in June 2015; however, this petition was dismissed without prejudice in December 2015 due to lack of proper service on Sutton. DHS filed a second petition for termination of parental rights in January 2016; the statutory grounds alleged were (1) the "out-of-custody-for-twelve-months and failure-to-remedy" ground, (2) willful failure to provide material support or meaningful contact for at least one year, (3) the "subsequent factors" ground, and (4) being sentenced in a criminal proceeding for a substantial period of time in the child's life.

         At the termination hearing in March 2016, Bessie Hatchett, the DHS supervisor on the case, testified that Sutton had been incarcerated from June 2014 to August 2015 and that she now lives in Pulaski County. Hatchett testified that Sutton had not visited the children consistently since her release and had not completed a second drug-and-alcohol assessment as ordered. She explained that Sutton had tested positive for cocaine on 15 December 2015 and that day, the day of the termination hearing. Hatchett also explained that a Pulaski County DHS worker attempted to visit Sutton's new apartment on February 10 and March 7, but those attempts were unsuccessful. She stated that DHS was seeking termination because "we're at the same place we were when the kids got picked up, because she was testing positive back in 2014. Here we are almost two years later and, you know, it's still the same." Hatchett also testified that the children were adoptable and faced potential harm if returned to Sutton.

         Judith Hicks, a program assistant with DHS, testified that she helped transport the children and supervised visits with the children. She explained that she communicated with Sutton primarily via text and that Sutton was supposed to contact her on Sundays to arrange visits for the coming week. Hicks described numerous instances of Sutton canceling a scheduled visit because she had to work or not contacting Hicks until Monday, after the week's visitation schedule had been set, to attempt to arrange a visit. She also described one instance in which a visitation did not occur because DHS was shorthanded.

         Sutton testified that she lives in a three-bedroom apartment in Little Rock and was currently employed at Wendy's. She stated that she did not have a car or a valid driver's license. She explained that she had gone to prison for violating probation and that since her release, she had visited her probation officer as ordered. She acknowledged that she had tested positive for cocaine that day but said that it had been over a month and half since she had used cocaine. She denied having a substance-abuse problem. She testified that she receives her work schedule on Sunday or Monday but that it can also change during the week, requiring her to cancel visitation. She opined that her drug addiction had "slowed down" but agreed that it had not stopped. She agreed that she was not prepared to take care of her children at that time but asked for additional time to work on her "finance [sic] situation."

         On 30 March 2016, the court entered an order terminating Sutton's parental rights, citing the "out-of-custody-for-twelve-months and failure-to-remedy" ground and the "sentenced in a criminal proceeding for a substantial period of time in ...

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