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Barnes v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

December 14, 2016




          Dusti Standridge, for appellant Erica Barnes.

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant Tyshon Hall.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          WAYMOND M. BROWN, Judge

         Appellant Erica Barnes appeals from the June 9, 2016 order of the Pulaski County Circuit Court terminating her parental rights to her five children, E.B. (DOB 1-15-02), Z.R. (DOB 9-24-06), T.H.1 (DOB 6-20-12), T.H.2 (DOB 8-2-13), and E.H. (DOB 1-1-15). Barnes argues on appeal that the evidence was insufficient to terminate her parental rights. Appellant Tyshon Hall, the father of T.H.1, T.H.2, and E.H., also appeals the June 9, 2016 termination order. He contends that the trial court erred in terminating his parental rights because DHS failed to properly plead the potential-harm prong in its petition and the evidence was insufficient to support the termination. We find no error and affirm.[1]

         This case began after Barnes tested positive for cocaine at the birth of E.H. On January 2, 2015, Barnes tested positive for both cocaine and oxycodone. Barnes had also tested positive for cocaine at her prenatal visit on December 22, 2014. Arkansas Department of Human Services (DHS) took a seventy-two hour hold on the children on January 2, 2015. DHS filed a petition for emergency custody on January 5, 2015, and the court issued an ex parte order for emergency custody that same day. On February 11, 2015, the children were adjudicated dependent-neglected as a result of parental unfitness and neglect based on Barnes's stipulation of cocaine use at or near the time of E.H.'s birth and E.H.'s positive cocaine screen at the time of birth. The order also indicated that the court accepted Barnes's case as "Zero to Three." In the Zero to Three review order of July 13, 2015, the court noted that Barnes had tested positive for alcohol on June 12 and June 26. The court ordered unsupervised visits in Barnes's home with the children on October 5, 2015.[2]

         The permanency-planning hearing took place on December 9, 2015. In the order entered on the same day, the court found that Barnes "has checked off boxes, but there are still serious problems with [her] stability and judgment." The order noted in pertinent part that

TONI HANSBERRY testified that mother has made progress towards reunification. She completed treatment, has a sponsor, and has participated in NA/AA, random drug screens, and visitation. She has completed counseling and is employed. Mother was recently evicted from her home; she has located a home in North Little Rock. She has outstanding bills in her name, so she cannot get the utilities in her name, DHS learned this on November 4, when they attempted to visit mom's home during a visit. Mother was not there, and the landlord told Ms. Hansberry what happened. Mother had the kids at McDonalds. Ms. Hansberry talked to mother; mother denied owing that much money, but she said she did owe some. Because of this, the visits returned to the DHS office. The landlord told Ms. Hansberry that mother owed $3000 in rent. Mother owes $1600 in electric; $300 in water; and she did not have an amount for gas. She had utilities in her old place in different people's names. She is trying to get the lights on in the uncle's name. Mom works for Jason's Deli. That is a new job. [Z.R.] is not doing well at Centers; she is aggressive. . . . [E.B.] was doing well until another teen was placed in the home; then he started being disrespectful and skipped classes. . . . Mother has visited with all but [Z.R.] recently. Mom recently started visiting her at Centers. Mother still needs assistance with redirection and helping with younger kids. [E.B.] sometimes does not want to come to visits because he does not want to help with the younger kids. Four out of the five children have some type of behavior problem. Mother works the services, but she does not have the capability to parent all five kids. There are budgeting concerns, as well. . . . Mother has had one therapy session with [Z.R.] . . . Mother had been served with eviction notices several times before November 4. Mother moved from Rose City to another place in NLR; she now works in Little Rock. At visits, she pays attention to the kids, but she is also on the phone. As the visits wind down, she starts getting on the phone. Mother said she has little support. DHS just received the psychological evaluation for mother today. The psychological was done in April. Housing and ability to parent the children are the main concerns. Each time mother has moved, utilities and/or apartment has been in someone else's name. That is part of her history. Jerome Martin is using his name for utilities, but he also had an old bill that mother had to pay to get to use his name. Another friend may let mother put gas in her name. The Hall grandmother is letting mother live with her; mother has a friend here today (Jasmine Clarks) that helps with transportation. Mother said she had "other bills" like a cell phone bill, a light bill, bus, and bills from where she goes to the emergency room. She has had one hair follicle; they requested another but it has not been approved. She did that at the beginning of November, and again after the staffing[.]

         The court changed the case's goal to adoption and termination of parental rights. It noted that Barnes's continued poor decision making was a present problem.

         DHS filed a petition for termination of parental rights on January 11, 2016. DHS listed three grounds for termination against Barnes: (1) the "failure to remedy" ground, [3] (2) the "subsequent other factors or issues" ground, [4] and (3) the "aggravated-circumstances" ground.[5] DHS listed four grounds for termination against Hall: (1) the "subsequent other factors or issues" ground, (2) the "aggravated-circumstances" ground, (3) the "abandonment" ground, [6] and (4) the "sentenced-in-a-criminal-proceeding" ground.[7]

         The termination hearing took place on March 7and April 21, 2016. Dr. Paul Deyoub testified that he evaluated Barnes and diagnosed her with cocaine use. He said that she had borderline intellectual functioning due to a 74 IQ, and that she was a child-abuse perpetrator because E.H. was born with cocaine in his system. Dr. Deyoub opined that due to Barnes's cocaine use, she needed individual therapy, residential drug treatment, parenting classes, an adequate place to live and means of employment and support, and evidence of a stable environment for at least six months. On cross-examination, Dr. Deyoub stated that Barnes and Hall had a very unstable relationship. He testified that Hall had failed to show up twice for his psychological appointment in this case.

         Barnes testified that she participated in "quite a few services throughout the course of this case, " including parenting classes, therapy with Z.R., a psychological evaluation, outpatient treatment at RCA, AA meetings, and the Zero to Three Program before it ended. She admitted that she tested positive twice in June for alcohol; however, she denied coming to visits under the influence of alcohol. According to Barnes, the positive alcohol screens were from her drinking a day or two before the screens. She testified that she currently resided at 703 West 23rd Street in North Little Rock with Hall.[8] She stated that she had lived there since January 7, 2016. She testified that it was her plan to remain with Hall. She said that she had gotten a house on Haywood in November but that she never moved into it because she could not get the lights turned on. She stated that she subsequently moved in with Hall's mother until she got herself together. Barnes testified that she lived in an apartment located at 7414 Mabelvale Pike in Little Rock when the case first opened. She denied being evicted from the apartment, but instead contends that she left after there was a shooting across the field from her apartment. She said that she did not believe that she owed the landlord of the apartment $3, 000, but guessed that she did owe him about $1, 500. She stated that she is currently employed at Jason's Deli where she has been employed for nearly seven months. She said that prior to that, she worked at Family Dollar. She testified that she enjoyed unsupervised visitation with her three youngest children until around November.

         On cross-examination, Barnes stated that she and Hall had not undergone couple's counseling although she had a battery conviction against Hall. She stated that she had been with Hall for six years but that she was unaware of any convictions he had during that time. She said that Hall went to prison during this time but that the reason "wasn't [her] worry at the time." She admitted that she made no effort to pay off her outstanding utility bills while she lived with Hall's mother. She stated that she had been unable to manage her rent and utilities for a couple of months. She testified that she makes $7.71 an hour at Jason's Deli and that she works approximately twenty-eight hours a week.

         Hall testified that he was released from prison on January 4, 2016. He stated that he was placed in custody on April 2, 2015, due to probation revocations on underlying charges. He said that he was unable to participate in services while he was incarcerated but that he did take parenting classes, anger management classes, drug and alcohol treatment, and another class while in prison. He testified that he would be on parole until February 18, 2018. He stated that the residence he and Barnes shared had two bedrooms. He said that if all of the children were returned to them, two children would sleep in each room and E.H. would sleep in the living room with him.

         On cross-examination, Hall denied having a positive drug screen on April 2, 2015, while at a criminal hearing. He stated that he received certificates for the classes he took while in prison but that he "left them all behind." He testified that he has had multiple probation revocations in the past five years. He stated that he had never been charged with assault against Barnes. He said that he was on call with Complete Staffing but that he had not been called for a job yet. He stated that he received financial assistance from his family.

         On redirect, Hall stated that he pays bills with the income he receives from his family. He said that he works for his family's lawn service "under the table" and receives payment for that.

         On re-cross, Hall stated that his payment varied depending on the service put in. He said that on average, he receives $60 to $70 a day. He testified that he saves his money and helps with the bills in the residence he shares with Barnes.

         Upon examination by the court, Hall stated that he received payment for the days he worked. However, he said that he could still go to his parents for money if he was in a bind.

         Toni Hansberry, the family service worker assigned to the case, testified that the children were removed after E.H. was born with cocaine in his system. She stated that the case was initially a Zero to Three case, which meant that there were the extra benefits of coming to court more frequently; additional counseling; the benefit of a visit coach who monitored the visitation and reported to DHS and the court; additional types of therapy; and overall, a more intensive and hands-on experience. She stated that Barnes enjoyed unsupervised visitation with her children until DHS learned that she had been served with an eviction notice in November. She said that Barnes subsequently moved to a house on Haywood, but that no home study could be conducted because the house did not have any utilities on. She stated that Barnes then moved in with friends and eventually began staying with Hall's mother. According to Hansberry, Barnes moved to another location and subsequently moved to the current location in North Little Rock. Hansberry stated that Barnes had been offered drug screens, supervised and unsupervised visitation, psychological evaluation, parenting classes, Zero to Three Program, individual therapy, outpatient drug treatment, drug-and-alcohol assessment, and bus passes. She stated that Barnes had completed the services offered by DHS. She said that Z.R. was in Centers from August to January and that during that time, Barnes participated in one therapy session and one visit. She stated that she was unaware of the reasons that prevented Barnes from participating more.

         Hansberry stated that she did not have any contact with Hall before he was released from prison. She said that Hall did not start any services before going to prison. However, she stated that he did submit to a paternity test, which was positive for the three youngest children. She testified that Hall contacted DHS following his release, and he began to visit his children. She stated that a psychological evaluation had been scheduled but that it would be April before they could see ...

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