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Holmes v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

October 26, 2016



          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          BART F. VIRDEN, Judge

         The Benton County Circuit Court terminated the parental rights of appellant Courtney Holmes to her children, K.R.H. (DOB: 10-4-2007) and K.M.H. (DOB: 3-13-2009).[1] On appeal to this court, Holmes argues that the evidence supporting the termination was insufficient under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 et seq. We affirm.

         I. Procedural History

         In January 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect concerning Holmes's children. In an affidavit attached to the petition, family service worker Jessica Thompson attested that on January 18, 2015, DHS received a call from the Siloam Springs Police Department to report that Holmes had rear ended another vehicle with the children in the car and that she had been arrested for driving while intoxicated, endangering the welfare of a minor, and reckless driving. Holmes had admitted using methamphetamine earlier that morning. In addition, Thompson learned that the police had been dispatched to Holmes's residence the previous day, January 17, for a welfare check because the children had been seen playing in the street with no adult supervision. It was reported that Holmes appeared to be under the influence in that she had stumbled and fallen against a wall. Also, she had not known where her children were but had thought that a friend was watching them. Thompson also learned that the police encountered Holmes earlier on January 18 after Holmes had reported a burglary at her residence. While an officer was speaking with Holmes, K.R.H. walked up with a hypodermic syringe and said that K.M.H. had found it in their backyard. The officer noted that Holmes had appeared to be under the influence. Thompson's affidavit also indicated that there had been several previous investigations on the family but that all the allegations had been found unsubstantiated; however, there was an ongoing investigation into sexual abuse of K.M.H. by her father, John.

         On January 22, 2015, the trial court entered an ex parte order for emergency custody. In a probable-cause order, the trial court noted that the ICWA applied and that the parties had stipulated to probable cause. The court ordered Holmes to submit to a drug assessment and drug testing, complete parenting classes, attend "HELP" for parents with kids in foster care, and maintain a calendar of her activities. The trial court ordered that there be no contact between John and his children.

         In March 2015, the trial court adjudicated the children dependent-neglected due to neglect and abuse. A review order entered in June 2015 indicated that Holmes had complied with the case plan by attending inpatient drug treatment. Holmes was ordered to, among other things, submit to random drug testing, obtain a drug assessment, and complete inpatient/outpatient drug treatment. Another review order was entered in September 2015 in which the trial court found that Holmes had partially complied with the case plan and noted that DHS had provided services, including a substance-abuse evaluation, random drug testing, substance-abuse treatment, counseling, parenting classes, foster placement, community-resource referrals, visitation, and medical/dental services. On November 5, 2015, DHS filed a petition for termination of parental rights. A hearing was held over the course of three days in January and February 2016.

         II. Termination Hearing

         Nicole Allison testified that she had been a child-welfare specialist for the Cherokee Nation for over nine years. She stated that she had qualified as an expert on Indian affairs in over 1, 000 cases and had received training in Tribal customs and culture.[2] Allison said that she was notified at the very beginning of the case and had been kept apprised of the services offered by DHS. According to Allison, her job was to evaluate active efforts and ensure that active efforts were made to prevent the breakup of an Indian family. Allison testified that she believed that active efforts had been made by DHS. Allison further testified that DHS should not be penalized if drug-treatment referrals were delayed due to Holmes's having canceled her appointments. She opined that Holmes had not made use of the services offered.

         Allison also testified that she thought continued custody by Holmes would likely result in serious emotional and physical damage to the children. She said that one of her concerns was the fact that four referrals for drug treatment had been made and that Holmes had left treatment three times. She also stated that Holmes had been referred for intensive outpatient treatment but that she had instead sought inpatient treatment. Allison did not recall Holmes ever asking for transportation but noted that Holmes had attended all of the DHS staffings without ever needing a ride and that she had not had a problem getting to court. Allison acknowledged that having multiple surgeries, as Holmes had, likely impacted her ability to complete inpatient drug treatment. Nevertheless, she testified that, when Holmes left Decision Point for a second time due to a slip and fall, she believed that Holmes should have stayed for treatment because "if she was well enough to come back and collect her belongings, I believe she was well enough to come back and stay." Allison further testified that other concerns were the true finding of sexual abuse of K.M.H. by John and Holmes's failure to protect her child. According to Allison, Holmes had initially stated that she would leave John, but at the next staffing it was discovered that Holmes had been staying in a hotel with John. Allison worried that Holmes would permit John to be around his daughter and that she could be molested again. Allison testified that the children's best interest would be served by terminating parental rights.

         Sarah Harper, a foster-care worker at DHS, testified that she was assigned to the case in April 2015. Harper stated that Holmes had completed parenting classes and appeared to share a bond with the children. She testified, however, that Holmes was not economically stable in that she had not held down a job. Harper further testified that Holmes had not completed counseling and that her discharge paperwork indicated that she had been dropped from the program because the counselor had called her three times to set up appointments, and Holmes had missed all three appointments. She also said that Holmes had lived in approximately eight different places and was currently living with people she had met on Facebook. Harper said that she had not been able to drug test Holmes over the previous five months because Holmes had ...

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