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Ritter v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

January 18, 2017




          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellant. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          BRANDON J. HARRISON, Judge.

         Ike Ritter appeals the order of the Sebastian County Circuit Court that terminated his parental rights to his daughter, K.R.[1] Ritter argues that the Department of Human Services (DHS) failed to plead any allegations under the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1923 (ICWA) in its termination petition and that there was insufficient evidence to support a finding that active efforts were made to prevent the breakup of the Indian family. We affirm.

         In January 2015, DHS received a "health and safety request" from the Arkansas State Police in reference to the Ritter family. The police had been informed that the Ritters had recently moved to Fort Smith from Oklahoma; that in August 2014, while living in Oklahoma, two-year-old K.R. had been severely burned on her face; that an investigation had determined that the injuries were the result of maltreatment by Ritter; and that Oklahoma was in the process of filing criminal charges against him. DHS contacted K.R.'s mother, Whitney, who reported that she had been advised to keep the children away from Ritter but that she did not believe he had intentionally harmed K.R. Whitney also stated that Ritter had been the primary caregiver for K.R. and her brother, four-year-old C.S., since the family had moved to Arkansas.[2] DHS also contacted Ritter, who stated that the burns had been the result of an accident and that he had not harmed K.R.

         DHS exercised a seventy-two-hour hold on the children to ensure their safety, and an ex parte order for emergency custody was granted on January 20. On January 27, DHS filed notice that the children were eligible for membership in the Choctaw Nation of Oklahoma through their mother and that ICWA would apply to the proceedings, and on February 9, the Choctaw Nation filed a notice of intervention.

         In July 2015, the children were adjudicated dependent-neglected by reason of "physical abuse and neglect/failure to protect." The court found that K.R. had been physically abused by Ritter and that Whitney had failed to protect her from abuse. The court noted that Ritter had been charged with felony child abuse in Oklahoma and was presently incarcerated there. Ritter was ordered to obtain and maintain stable housing, income, and transportation; complete parenting classes and visit regularly; submit to a drug-and-alcohol assessment and complete recommended treatment; submit to random drug screens and hair-follicle testing; submit to a psychological evaluation; and resolve his criminal charges and comply with the terms and conditions of any criminal sentence. Finally, the court acknowledged the Choctaw Nation's intervention in the matter but noted that it had not appeared at the adjudication hearing. The court "reserve[d] any ruling on further issues related to compliance with the Indian Child Welfare Act (ICWA) until further notice from the Choctaw Nation."

         A review order entered in September 2015 noted that DHS had made reasonable efforts to provide family services and that Ritter had not complied with the case plan. The court found that Ritter remained incarcerated in Oklahoma while awaiting trial on the criminal charges involving K.R. In the permanency-planning order filed in February 2016, the court found that DHS had made reasonable efforts to finalize a permanency plan and that the goal of the case should be changed to adoption. The order noted that Ritter had been convicted of felony child abuse and sentenced to five years' imprisonment followed by five years' supervised probation. Also in February 2016, DHS filed a petition for termination of parental rights and alleged the following statutory grounds against Ritter: (1) twelve months/failure to remedy, (2) sentenced in a criminal proceeding for a period of time that constitutes a substantial period of the child's life, and (3) aggravated circumstances. See Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), (viii), and (ix)(a)(3) (Repl. 2015).

         The court conducted a termination hearing in April 2016. At the commencement of the hearing, DHS informed the court once again that this was an ICWA case, that DHS had been in contact with the Choctaw Nation, and that Angela Robinson, a Choctaw Nation representative, wished to participate in the hearing via telephone.

         Natasha Mantooth, the family caseworker, testified that referrals were provided to both parents at the case-plan staffing and that the parents signed the case plan. According to Mantooth, Ritter completed one hair-follicle test, which was positive for THC, but she had no record of him completing any other requirements of the case plan. She stated that he went to prison in Oklahoma around the time that the children were adjudicated dependent-neglected. She also testified that Ritter would be imprisoned until at least 2020 and that she did not think reunification with Ritter was a possibility. Mantooth agreed that there were no services that would make Ritter an appropriate placement for K.R. given the nature of the abuse that occurred. She described K.R. as a "sweet and beautiful" child who was readily adoptable. She also said that K.R. faced "great risk" if returned to Ritter, noting the "cruel" and "extreme" nature of the burns inflicted onto K.R.'s face.

         Mantooth confirmed that she had been in contact with the Choctaw tribe about the efforts in this case and the services provided. She explained that K.R. had been placed with two different relatives at different points in the case, but neither of those placements was long term, and K.R. was placed in a foster home. Mantooth said that there were currently no ICWA-compliant homes in Arkansas where K.R. could be placed and that DHS was currently working toward placing the child with relatives in Oklahoma.

         Angela Robinson, the Choctaw Nation representative, testified that she had reviewed the case and prepared written declarations for the court, which were admitted without objection. She testified that the Choctaw Nation recommended termination of parental rights with a goal of adoption. She agreed that DHS had provided active efforts for the family and opined that "active efforts have failed." In her written statement, Robinson stated that she had been in contact with DHS and had reviewed the juvenile-dependency petition, the probable-cause report, the adjudication order, and the permanency-planning order. In her opinion, "returning the children to the care of their parents would subject the children to suffer physical and ...

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