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Dunbar v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

October 19, 2016

XAZEVIER DUNBAR APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV-15-624] HONORABLE WILEY A. BRANTON, JR., JUDGE

          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.

          David Hodges, for appellee.

          ROBERT J. GLADWIN, Chief Judge

         In this no-merit appeal, the Pulaski County Circuit Court terminated appellant Xazevier Dunbar's parental rights to her five children on March 3, 2016. She filed a notice of appeal on March 15, 2016. Counsel for appellant filed a motion to withdraw as counsel on appeal and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i) (2015), asserting that he has made a conscientious review of the record in this case and of the applicable law but has found no meritorious issues that could arguably support the appeal. After being served by certified mail with the motion to withdraw and a copy of the no-merit brief, appellant filed pro se points for reversal, and the Arkansas Department of Human Services (DHS) and the attorney ad litem filed a joint responsive brief. We affirm the termination-of-parental-rights order and grant counsel's motion to withdraw.

          I. Procedural History

         A petition for dependency-neglect was filed by DHS on May 5, 2015, alleging that appellant's five children, K.L. (born July 25, 2003), M.R. (born October 14, 2007), C.N. (born October 31, 2009), J.B. (born October 14, 2010), and S.N. (born October 20, 2012), were at substantial risk of serious harm as the result of educational neglect and parental unfitness.[1] While investigating an unsubstantiated hotline call in January 2015, DHS discovered that two of the children had several unexcused absences from school, which supported a case for educational neglect, and on March 17, 2015, a protective-services case was opened. Appellant had prior involvement with DHS through a supportive-services case in August 2011, a foster-care case in December 2011, and a subsequent protective-services case in March 2013. During the course of DHS's investigation, appellant was combative with the social worker, who filed a police report. Attempts to speak with the children at their schools and with appellant at her home were largely unsuccessful, and on April 28, 2015, appellant would not allow a DHS social worker to speak to her children, even with law enforcement present. On April 27, 2015, K.L.'s grandmother reported major concerns about the children, stating that she knew appellant had mental-health issues and that appellant had attacked her with a stick, which was reported to police.

         A motion for expedited hearing was filed on May 12, 2015, wherein the attorney ad litem alleged that appellant was in jail due to her failure to appear on a disorderly conduct charge arising from an April 2015 encounter with police. Attached were police reports that indicated a history of domestic violence between appellant and her oldest daughter. An order for expedited hearing was granted, and a hearing was set for May 19, 2015. On May 12, 2015, DHS sought an order directing appellant to permit a full investigation of the report it had received against her in January. The trial court granted DHS's petition, and an order was filed directing DHS to interview the children outside appellant's presence and directing appellant to cooperate with the child-maltreatment investigator.

         DHS filed an amended petition for ex parte emergency custody and dependency-neglect on May 15, 2015, alleging that the children had been subjected to physical abuse, educational neglect, and parental unfitness. The attached affidavit outlined the history of DHS caseworkers' attempts to locate the children. The caseworker alleged that three of the children had signs of physical abuse in the form of scratches and scars; appellant had driven a car with the children and had "rushed up" behind the caseworker's car during one attempt to locate appellant and her children; appellant had a history of being committed or institutionalized due to mental-health issues; and appellant had physically assaulted the caseworker. An ex parte order was signed on May 15, 2015, finding probable cause to believe that the children were dependent-neglected and placing the children in DHS custody.

         An interim order filed on May 19, 2015, required (1) DHS to supervise appellant's visitation; (2) appellant to submit to random drug and alcohol screens; (3) the children to submit to drug screens; (4) no relative placement of children without a court order; and (5) visitation with the mother to be terminated at any time she acted in an aggressive, violent, or threatening manner or appeared to be emotionally or mentally unstable. A probable-cause order was filed on June 8, 2015, and reflected the same requirements contained in the interim order of that date. On June 29, 2015, DHS filed a motion to transfer custody of K.L. to Willie Carpenter, the paternal grandmother, and an agreed order was filed on June 20, 2015, to that effect.

         The July 20, 2015 adjudication order found the children to be dependent-neglected. The trial court took notice of the prior dependency-neglect case and found by clear and convincing evidence that the children had been subjected to aggravated circumstances "in the sense that it is unlikely that services to the family will result in successful reunification within a reasonable period of time as measured from the children's perspective and consistent with their developmental needs."

         The adjudication order states that, in the prior case, the children were out of the home in excess of one year and were found to be dependent-neglected due to inadequate supervision and parental unfitness because of their mother's mental-health issues. Appellant admitted that she had mental-health issues and was off of her medications at the time of the incident that had caused some of her children to go into foster care in early 2012. The trial court had found that appellant's long-term mental-health issues caused her to be an unfit parent when she was not on her medications, and it had considered her history of being off medications, her violence, and her noncompliance. Ultimately, the children were returned to appellant in the prior case, and the case was closed in March 2013.

         However, the trial court noted in the adjudication order that, in the 2012 case, appellant had submitted to a psychological evaluation by Dr. Paul Deyoub, who found that she carried an AXIS I diagnosis of schizoaffective disorder, bipolar type, polysubstance dependence (stated to be in remission), cannabis abuse, and neglect of a child, perpetrator; and an AXIS II diagnosis of borderline intellectual functioning. The order quotes Dr. Deyoub's report in part as follows:

I think she has schizoaffective disorder, because of bipolar symptoms concurrent with symptoms of schizophrenia. She has problems with depression, lability of mood, and also a thought disorder which would characterize schizoaffective disorder. Drug abuse in the past has also complicated her symptoms and has likely contributed to psychotic episodes. This would especially be the case when she used PCP. I think there have been delusions and paranoid ideation, which she is reluctant to admit. She also tends to be isolated from her family, and her parenting scales indicated major difficulty raising the three children that were with her, while [S.N.] and [K.L.] were living with her mother for the last year. I think it is lucky that nothing happened to the three younger children for a woman that was out of control with mental illness, punching holes in the wall, and this violent behavior could have been directed toward these children. Her mental illness was significant, and she requires sustained mental-health treatment.

         The trial court stated in the adjudication order that, "[i]n the current case, the mother's behavior is similar to that indicated in this psychological evaluation."

         The trial court further found that appellant lacked credibility and "may not be perceiving reality." The trial court described appellant in its order as "assaultive, aggressive, and combative." The court found that she continued to have drug issues, that she had not made marked improvement, and that "[a]ny apparent improvement in the mother's circumstances is merely temporary behavior on her part." The goal of the case was reunification, and appellant was to continue supervised ...


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