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Bean v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

February 8, 2017

CHRIS BEAN AND JENNIFER BEAN APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-15-500] HONORABLE THOMAS E. SMITH, JUDGE

         AFFIRMED

          Leah Lanford, Ark. Pub. Defender Comm'n, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          ROBERT J. GLADWIN, Judge.

         Appellants Chris and Jennifer Bean appeal the May 2, 2016 order of the Benton County Circuit Court terminating their parental rights to their four minor sons, C.B. 1, C.B. 2, C.B. 3, and C.B. 4, then ages five years, four years, three years, and eleven months. They argue that the trial court erred in the permanency-planning hearing for C.B. 1, C.B. 2, and C.B. 3 by changing the goal of the case to adoption without sufficient evidence to meet the statutory criteria to change the goal. They also argue that the evidence does not support the statutory grounds that the trial court relied on to terminate their parental rights and that the evidence does not demonstrate any potential harm in returning the children to their custody. We affirm.

         I. Facts

         This case began on July 22, 2014, when the Arkansas Department of Human Services (ADHS) filed a petition for emergency custody and dependency-neglect in regard to the Beans' three sons, C.B. 1, C.B. 2, and C.B. 3. ADHS had been monitoring the family for environmental neglect since December 2013. The family had moved from a trailer into a three-story duplex, but ADHS took an emergency hold on the three boys after an investigator discovered that the family had an extensive history with ADHS for environmental neglect on six previous children who were in the custody of their maternal grandmother because the Beans voluntarily signed over guardianship upon learning that ADHS had been contacted about their circumstances.

         The three boys were adjudicated dependent-neglected on September 16, 2014. Six months into the case, ADHS determined that the Beans were not in compliance with the case plan and attempted to seek termination of parental rights (TPR) on the basis that there was little likelihood that the Beans would reach full compliance. The Beans challenged ADHS's recommendation, and the trial court found that the Beans had complied with multiple aspects of the case plan, including participation in parenting classes, psychological evaluations, couples' counseling, individual counseling, and visitation, but that they had not maintained a "clean" home during the review period. Even though the case had been open for only six months, and the Beans were in partial compliance with the case plan, the trial court set the case for a March 2015 TPR hearing.

         The March 2015 TPR hearing was subsequently changed to a review hearing by agreement of the parties; after that hearing, the trial court entered an order finding that the Beans had "fully complied with the case plan and court orders." Although the primary issue was environmental neglect, which was found to be remedied at the time of that hearing, the trial court did not return the boys to the Beans; rather it ordered the Beans to develop and provide a plan for the care of the boys to ensure that their therapies would continue when they returned home. The case was set for a permanency-planning hearing on June 16, 2015.

         At the June 16, 2015 permanency-planning hearing, ADHS submitted a court report and photographs from the previous six months. The court report indicated that the Beans were complying with the case plan, yet ADHS continued to recommend TPR and adoption. At the beginning of the hearing the trial court noted that the case was an environmental one and that at the prior hearing it was close to placing the boys back with the Beans. It asked to hear from ADHS why there had been another sudden shift in ADHS's goal. At the conclusion of the hearing, the trial court found that the Beans had no stable employment and that the home had not been kept "clean enough" for the trial court to find that the Beans had resolved the environmental issues. In its permanency-planning order filed on July 1, 2015, the trial court changed the goal to adoption but kept a secondary concurrent goal of reunification and ordered ADHS to continue offering services, including Intensive Family Services (IFS) in the home. The Beans sought to appeal the order at the time it was entered by requesting a Rule 54(b) certificate for an interlocutory appeal, but that was denied.[1]

         Just before the permanency-planning hearing, on May 19, 2015, the Beans had another child, C.B. 4, who was left in the Beans' custody. Ms. Bean lied to both caseworkers and to the trial court about being pregnant again until her eighth month of pregnancy. Three months after C.B. 4 was born, ADHS filed a petition for dependency-neglect, not seeking custody of C.B. 4 but to have C.B. 4 adjudicated dependent-neglected and added to the already-open case.[2] C.B. 4's inclusion in the case took place after the permanency-planning hearing, and shortly thereafter, on September 22, 2015, ADHS filed a combined petition for TPR and a motion for no reunification services on all four of the boys. A TPR hearing was set for October 20, 2015.

         A few days before the scheduled TPR hearing, on October 12, 2015, for reasons that are unclear, the three older boys were sent home on a trial home placement where C.B. 4 remained in the Beans' custody. At the October 20, 2015 hearing, the trial court converted the hearing to another review hearing and found that the Beans were in partial compliance with the case plan and that they were partially moving toward resolving the health-and-safety issues that had caused the removal of the three older boys. Although the resulting order did not reference the trial home placement that the three boys had been on for the previous week, the order did reflect a long list of requirements for the Beans to follow. On that same date, the trial court adjudicated C.B. 4 dependent-neglected based on neglect and parental unfitness, finding that he was at substantial risk of inadequate supervision and not having his mental, physical, and emotional needs met. Although the trial court noted that the goal was reunification, C.B. 4 had not been removed from the custody of the Beans as of that time.[3]

         On December 15, 2015, at the end of the sixty-day trial home visit, the visit was extended for an additional forty-five days. However, on January 11, 2016, ADHS terminated the extended visit and removed all of the boys, including C.B. 4. During the emergency hold of C.B. 4, but before ADHS could file the formal emergency petition, the Beans filed a motion for emergency hearing stating that ADHS had made known its desire to remove the children at the time the trial visit was extended on December 15, 2015, that the Beans had been in compliance with every requirement placed on them by the court and ADHS, and that ADHS's removal of the children was opportunistic because it took advantage of the difficult situation the Beans were in-Mr. Bean had been hospitalized and their basement had flooded during a storm. The Beans requested the emergency hearing so that they could be heard on the removal of all of the boys, and the trial court set the hearing on the motion four days later. ADHS filed its formal motion for ex parte emergency change of custody on January 14, 2016, stating that the home had fallen into such disarray that the conditions posed a health-and-safety risk to the children.

         After a hearing, the trial court entered an order of emergency change of custody on C.B. 4 and a subsequent probable-cause order finding that the Beans had ultimately failed to follow the trial court's orders during the trial home placement and that their actions had put the children at substantial risk of harm. ADHS then refiled its petition for TPR on February 19, 2016, and the TPR hearing was held on March 4. Because of the highly contested nature of the entire case, the parties asked the court to incorporate into the record all prior testimony from all prior hearings, as well as exhibits from those hearings, and the trial court agreed. On May 2, 2016, the trial court entered an order terminating the Beans' parental rights to all four children. The Beans filed a notice of appeal of the May 2, 2016 TPR order, as well as the July 1, 2015 permanency-planning order, which could be taken up as an interim order with the final and appealable TPR order. See Ark. Sup. Ct. R. 6-9(a)(1)(C); Bryant v. Ark. Dep't of Human Servs., 2011 Ark.App. 390, 383 S.W.3d 901; Velazquez v. Ark. Dep't of Human Servs., 2011 Ark.App. 168.

         II. Permanency-planning Hearing Change of Goal

         The burden of proof in permanency-planning proceedings is by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(B) (Repl. 2015). The standard of review on appeal is de novo, and we will reverse only if the trial court's findings are clearly erroneous. Ark. Dep't of Human Servs. v. McDonald, 80 Ark.App. 104, 91 S.W.3d 536 (2002).

         Arkansas Code Annotated section 9-27-338(a)(1) states that a "permanency planning hearing shall be held to finalize a permanency plan for the juvenile." Subsection (c) states,

(c) At the permanency planning hearing, based upon the facts of the case, the circuit court shall enter one (1) of the following permanency goals, listed in order of preference, in accordance with the best interest, health, and safety of the juvenile:
(1) Placing custody of the juvenile with a fit parent at the permanency planning hearing;
(2) Returning the juvenile to the guardian or custodian from whom the juvenile was initially removed at the permanency planning hearing;
(3)Authorizing a plan to place custody of the juvenile with a parent, guardian, or custodian only if the court finds that:
(A)(i) The parent, guardian, or custodian is complying with the established case plan and orders of the court, making significant measurable progress toward achieving the goals established in the case plan and diligently working toward reunification or placement in the home of the parent, guardian, or custodian.
(ii) A parent's, guardian's, or custodian's resumption of contact or overtures toward participating in the case plan or following the orders of the court in the months or weeks immediately preceding the permanency planning hearing are insufficient grounds for authorizing a plan to return or be placed in the home as the permanency plan.
(iii) The burden is on the parent, guardian, or custodian to demonstrate genuine, sustainable investment in completing the requirements of the case plan and following the orders of the court in order to authorize a plan to return or be placed in the home as the permanency goal; and
(B)(i) The parent, guardian, or custodian is making significant and measurable progress toward remedying the conditions that:
(a)Caused the juvenile's removal and the juvenile's continued removal from the home; or
(b)Prohibit placement of the juvenile in the home of a parent.
(ii) Placement of the juvenile in the home of the parent, guardian, or custodian shall occur within a time frame consistent with the juvenile's developmental needs but no later than three (3) months from the date of the permanency planning hearing;
(4)Authorizing a plan for adoption with the department filing a petition for termination of parental rights . . . . [Exceptions not applicable.]

         The Beans claim that the evidence presented at the permanency-planning hearing demonstrated that they had made substantial and sustained progress on the case plan and trial court orders toward having the three older children returned to their custody. The trial-court, however, changed the goal to adoption-with a concurrent goal of reunification- finding that the Beans had only partially complied with the case plan. The trial court found that neither of the Beans had stable employment, which caused concern about their ability to maintain the home financially, and that the house had "not been kept clean enough to say the environmental neglect is resolved."

         The Beans note that some type of placement with a parent, even if it cannot be immediate, constitutes the top three preferred goals of the permanency-planning statute. Pursuant to changes in the statutory scheme in 2009 and again in 2013, parents were provided with greater ...


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