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Brandau v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

February 15, 2017




          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

          Mary Goff, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          ROBERT J. GLADWIN, Judge.

         Clarissa Brandau appeals the termination of her parental rights to her two children, G.R. (born August 29, 2006) and A.R. (born September 22, 2008). She argues that the Pulaski County Circuit Court clearly erred in finding that it was in the children's best interest to terminate her parental rights and there was insufficient evidence to support the grounds for termination alleged in the Arkansas Department of Human Service's (DHS's) termination petition. We affirm.

         I. Facts

         DHS filed a petition for ex parte emergency custody and dependency-neglect on November 17, 2014, alleging that the two children lived with their mother and had been subjected to neglect and parental unfitness.[1] The attached affidavit reflects that DHS had received a hotline call on November 3, 2014, alleging that the children had slept in their car with Brandau, who had been kicked out of a shelter where they had been staying. The children were interviewed at school on November 13, 2014, and both said that they had recently spent the nights in their mother's car when they were not at a shelter, motel, or friend's house. When DHS interviewed Brandau, she admitted living in her car, and she tested positive for methamphetamine, amphetamine, and marijuana. The children were placed on a seventy-two-hour hold by DHS on November 12, 2014, due to their inadequate housing and Brandau's drug abuse. DHS noted in the supporting affidavit that there had been three unsubstantiated reports in 2014 and a previous case that had been closed in 2009. As a result of the petition, an ex parte order for emergency custody had been filed on November 18, 2014, granting custody to DHS.

         An order filed December 16, 2014, found probable cause that the emergency conditions that had caused removal of the children from Brandau's custody continued and that it was necessary for the children to remain in DHS custody. Brandau was granted supervised visitation, and the circuit court had no objection to the children being placed with Thomas Redd, their putative uncle. Brandau was ordered to submit to random drug-and-alcohol screens and a psychological evaluation.

         An adjudication order was filed on January 27, 2015, finding that the children were dependent-neglected and that the allegations in the petition were true and correct-Brandau had subjected the children to neglect; the family was homeless; the children experienced uncertainty as to where they would be sleeping; the family mostly slept in a car; the situation resulted in bad hygiene for the children; and Brandau used meth, amphetamines, and marijuana. The circuit court found that returning the children to Brandau's custody would be contrary to their welfare. The goal of the case was reunification. Brandau had tested positive for amphetamine, methamphetamine, and THC on November 12, 2014; positive for THC on November 20, 2014; and positive for THC on December 11 and 22, 2014. Brandau was ordered to submit to a psychological evaluation and to follow the recommendations; submit to a drug-and-alcohol assessment and follow the recommendations; attend counseling; submit to random drug-and-alcohol screens; and obtain and maintain stable housing and income.

         A review order filed May 5, 2015, found that the case plan was moving toward an appropriate permanency plan, and the goal of the case continued to be reunification. The circuit court specifically held that Brandau had made an effort to comply but stated,

It remains to be seen whether any measurable progress has been made. The court is distressed that the mother thinks that no services have been provided to her and that there has been no case plan developed. The case plan was entered into evidence at the last hearing. It seems as if the mother wants to blame others. Eventually the mother acknowledged having received certain services. The court expects the mother to do certain things on her own.
Testimony indicated the following: The mother is to be assessed for medication. The mother works at Big Orange and sleeps at a male friend's house on the couch. The mother has saved about $5000 but owes at least that much, some to Forrest Place Apartments with which she is trying to work on a settlement of accrued rent due. Also the mother owes sum(s) due to traffic violations(s).

         The circuit court also found that DHS had made reasonable efforts to provide services to achieve reunification, including transportation, bus passes, drug screenings, PACE Evaluation, medical services, provisional foster home, and board payments.

         The permanency-planning order filed on October 5, 2015, found that it was in the children's best interest to remain in DHS custody, and the goal of the case continued to be reunification. The circuit court found that Brandau did not "follow through with individual counseling and that is a real setback." The circuit court noted Brandau's complaints that the therapist was "getting into her business" and advised that it was normal for a therapist to ask questions regarding the patient's life. The circuit court recognized that Brandau's cessation of therapy was due to personal conflicts with the therapist but stated that "the manner in which the mother reportedly lost her job at Big Orange raises some question about whether the mother's fundamental issues have been addressed." The circuit court noted Brandau's expenses ($870 per month rent) and income ($1400 per month plus income from doing massages). Brandau was allowed day visits if her hair-follicle drug test was negative, and if no further concerns emerged, the circuit court would entertain an agreed order for overnight visits. DHS was to make a referral for Brandau to attend individual counseling, and DHS was found to have made reasonable efforts to provide services.

         The permanency-planning order filed on January 14, 2016, found that the children should remain in DHS custody, and a court report was admitted reflecting Brandau's hair-follicle drug screen positive for marijuana on September 14, 2015, a positive urine drug screen on October 14, 2015, a negative drug screen of October 15, 2015 (obtained independently by Brandau), and a negative urine drug screen of December 10, 2015. The goal of the case continued to be reunification. The circuit court noted in its order,

The main concern with the mother is her mental health issue and whether she can stay off of nonprescription drugs, whether she can maintain mental and emotional stability, and maintain employment and appropriate housing. The court believes that the mother is capable but unsure whether she will achieve these objectives or if she did achieve them, whether she would continue to do so.
Testimony included the following: The mother continues to reside at . . . Little Rock, Arkansas. Since the last hearing, the mother has changed jobs. She now works at Teletek as a customer service representative. The mother's work schedule has caused the mother to miss some counseling appointments and visitation, but once she moves beyond the "new worker" period, this shouldn't continue to be an issue. The mother is prescribed Lithium for anxiety but has not taken it in two months and intends to inquire about a possible change of medication.

         The circuit court accepted DHS's recommendation and authorized three unsupervised day visits and, depending on whether things went well, weekend visits until the next court hearing. Brandau was ordered to take medications as prescribed. The circuit court also found that DHS had made reasonable efforts to provide services.

         A joint motion to stop weekend visits was filed on March 11, 2016, by the attorney ad litem and DHS. The motion alleged that the goal of the case had been changed to termination of parental rights at the permanency-planning hearing held on March 8, 2016. The motion recited testimony from Samantha Parsons, the family service worker, stating that Brandau had major mental-health problems and was going to therapy only because the circuit court had ordered it. The circuit court made a finding that Brandau had not benefited from therapy. There was further testimony that Brandau had stopped taking her medications prescribed for her mental health. Further, Brandau was not giving her child medication during the weekend visits, even though she had repeatedly been instructed to do so. The children advised that they had seen their mother stealing drinks in a store and had men come to her apartment and go into her bedroom for periods of time. Parsons also had received information that Brandau was using drugs and having other people give her urine to submit for drug screening.

         The permanency-planning order from the March 8, 2016 hearing was filed on March 23, 2016. The goal of the case was changed to termination of parental rights, and the order recited that Brandau had failed to appear for the hearing. The circuit court found that no material progress had been made toward reunification in that Brandau had not been consistent with taking her medication as prescribed, had not been keeping up with her therapy appointments, and had little insight as to the need to attend treatment.

         DHS filed a petition for termination of parental rights on April 27, 2016, alleging five grounds for termination under Arkansas Code Annotated section 9-27-341 (Repl. 2015):

1.) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. (See Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a));
2.) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent placement of the juvenile in the custody of the parent (See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a));
3.) That the parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to have subjected any juvenile to aggravated circumstances (Aggravated circumstances means a juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification) (See Ark. Code Ann. § 9-27-34l(b)(3)(B)(ix)(a)(3)(A) and (B)(i));
4.) That a parent has abandoned a juvenile. (See Ark. Code Ann. § 9-27-341(b)(3)(B)(iv)); and
5.) That the juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with ...

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