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Peeler v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

November 2, 2016

MELISSA PEELER APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES APPELLEE

         APPEAL FROM THE CROSS COUNTY CIRCUIT COURT [NO. 19JV-14-39-4] HONORABLE KATHLEEN BELL, JUDGE

         AFFIRMED

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, 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 Melissa Peeler appeals from the circuit court's order granting a petition for guardianship of her minor daughter, P.P., that was filed by Joseph and Meredith Peeler (the Peelers), in the open dependency-neglect case involving P.P. On appeal, appellant argues that the circuit court erred when it allowed the Peelers to become parties to the dependency-neglect case without first finding that they had met the requirements of Ark. R. Civ. P. 24. We affirm.

         Appellee, the Arkansas Department of Human Services (DHS), removed P.P. (DOB 08/05/13) from the custody of appellant in June 2014. The affidavit attached to DHS's petition for emergency custody of P.P. stated that a safety check had been requested on the home due to reports of domestic violence. An investigation revealed that appellant and ten-month-old P.P. were living in the home of P.P.'s great-grandmother, Wanda Peeler (Wanda), although appellant was incarcerated at the time of the caseworker's visit. Wanda indicated to the caseworker that appellant had been charged with stealing a television and other items from her home and that there had been a physical altercation between appellant and Wanda's son, Joe Peeler (Joe), over the theft, during which Wanda had either been knocked down or had blacked out. Although Wanda had evicted Joe from her home following the altercation, she stated that she had then asked him to return so that he could assist her in caring for P.P. Wanda indicated that both Joe and appellant used drugs, and DHS performed a drug screen on Joe, who tested positive for methamphetamine, THC, amphetamine, and benzodiazapine. He admitted that he had used methamphetamine that day even though he had been caring for P.P. The affidavit also indicated that appellant had a prior "true" finding of neglect in 2008 and that there had been an unsubstantiated referral against appellant for prenatal exposure in February 2014. DHS placed a seventy-two-hour hold on P.P. D.Y., appellant's teenage son who had been adopted by Wanda and her husband and who also lived in the home, was not removed at that time.

         The circuit court granted DHS's petition for emergency custody and found probable cause for the removal on July 24, 2014. P.P. was adjudicated dependent-neglected in August 2014 based on appellant's stipulation of inadequate supervision due to illegal drug use. The circuit court noted that DHS had been involved with the family since 2008 and that appellant's parental rights had previously been terminated as to two of her older children. The case goal was set as reunification with appellant, with a concurrent goal of relative custody.

         Shortly after P.P. was removed from appellant's custody, she was placed with appellant's brother and sister-in-law, Joseph and Meredith Peeler. The Peelers served as P.P.'s foster parents from July 9, 2014, until December 22, 2014, when the circuit court authorized a trial home visit with P.P. The court ordered that there was to be no one present in the home with the exception of appellant, Wanda and her husband, D.Y., and P.P. The court further ordered that Wanda was to be present to care for P.P. at all times and that appellant was not allowed to be left alone with the child.

         In December 2014, the Peelers filed a petition for guardianship of P.P. in the dependency-neglect case, along with a motion to intervene, pursuant to Arkansas Code Annotated section 28-65-107 (Supp. 2015). The Peelers alleged that P.P. was at imminent risk of harm if returned to appellant's custody due to appellant's history of drug use and neglect of P.P. They attached an affidavit from Meredith further detailing their concerns about appellant's ability to care for P.P. DHS filed a response to the petition in January 2015, claiming that the Peelers could not demonstrate that appellant was unfit and that the petition for guardianship should be denied. Neither DHS nor appellant filed a response to the Peelers' motion to intervene.

         A hearing was held on the petition for guardianship on July 6 and August 28, 2015. At the beginning of the hearing, the Peelers noted that they had also filed a motion to intervene that had not yet been granted. DHS objected to the intervention, stating that there was no compelling reason for the Peelers to intervene in the case. The Peelers responded that the guardianship statutes mandated that their petition for guardianship be filed in the open dependency-neglect case and that their motion to intervene was not necessarily required. DHS indicated that it had no objection to proceeding on the guardianship petition.

         Appellant stated that she also objected to the intervention. She argued that the Peelers were not entitled to intervene under either Ark. R. Civ. P. 24(a) or (b), and she requested that the circuit court rule on the motion to intervene. The following colloquy then occurred:

Court: Are you proceeding on your petition to intervene? The petition for guardianship is required to be filed under statute. In this case, is there any ...

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