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Ekberg v. Arkansas Department of Human Services & Minor Children

Court of Appeals of Arkansas, Division I

February 22, 2017



          Law Office of Kathryn L. Hudson, by: Kathryn L. Hudson, for appellants.

          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.

         In this termination-of-parental-rights case, Alyssa Ekberg and Jerry Ashmore (the parents) appeal the Pulaski County Circuit Court's order filed April 8, 2016, terminating their parental rights to their two children, E.H. (born October 26, 2007) and H.A. (born December 18, 2013).[1] On appeal, the parents argue that there was insufficient evidence to support the allegation of abuse at adjudication, that termination was in the best interest of the children, or that the statutory grounds existed. Relying, as we must, on the circuit court's credibility determinations, we find no clear error and affirm.

         I. Facts

         Appellee Arkansas Department of Human Services (DHS) filed a petition for dependency-neglect on July 16, 2014, alleging that E.H. and H.A. were subjected to neglect and parental unfitness. The attached affidavit signed by Toni Hansberry, a social-work specialist for DHS, contained statements that DHS received a maltreatment report on May 9, 2014, alleging that E.H. had "major" deep, bluish-red bruises that covered his whole bottom; that the parents whipped E.H. with a board; that Jerry "hangs E.H. upside down by both feet in the closet"; and that when this occurred, E.H. could not "bend up" to untie himself.

         The affidavit stated that Betty Banks was assigned to the investigation, that Banks observed bruising on E.H.'s bottom, and that E.H. had told Banks that his stepdad, Jerry, spanked him with his hand and a big piece of wood, described as rectangular and kept by his parents in a box. The affidavit alleged that E.H.'s school staff observed the bruises and that E.H. was consistent with his story. Further, E.H.'s mother, Alyssa, was shown the pictures of the bruising and blamed it on a chair that the child had used. Alyssa also told Banks that it had been a while since she had "busted [E.H.'s] butt, " then changed it to "two weeks ago."

         The affidavit stated that Banks completed her investigation and found a preponderance of evidence to support the allegation of physical abuse. She found that the parents, who were not married, and Jerry's mother, Katrina Ashmore, were or had physically abused E.H. Banks learned that the family had a "maltreatment finding in Texas alleging physical abuse" of E.H. by the parents but that they had moved to Arkansas before participating in and completing services.

         The affidavit alleged that DHS opened a protective-services case on the family. Nicky Baker and Hansberry went to the parents' home on June 25, 2014, to make the initial contact, and no one was home, so they left a note for the parents to call Baker. On that same day, Alyssa phoned a county supervisor and complained that someone had come to her home, and she "indicated" that she was not going to participate in services without a judge's order. Baker called Alyssa on June 26, 2014, and there was no answer or return call. Hansberry called Alyssa on June 27, 2014, and there was no answer, so a message was left for Alyssa to call Baker. Alyssa called Baker and advised that E.H. was in residential care, and that she was not going to tell Baker where and was not going to participate in services without a court order.

         The affidavit described that Baker and Hansberry obtained assistance from the Pulaski County Sheriff's Office on July 1, 2014, to conduct a welfare check. When they arrived, Jerry was in front of the home with H.A., Jerry's mother, and another man. Alyssa was at work. Jerry told them that E.H. was in Pinnacle Pointe Hospital in a residential program and had been there for two weeks. He was told to have Alyssa call Baker when she returned. Alyssa called to "resolve the issues." She was told by Hansberry that the issues could not be resolved due to the allegations and a case having been opened. When the workers returned to the home, Alyssa would not allow them inside, but they stood outside and talked. The affidavit described Alyssa as hesitant about participating in services, cooperative in providing information about E.H.'s biological father, and "acknowledging the situation that warranted the agency's becoming involvement [sic] with their family."

         Finally, the affidavit stated that Hansberry contacted "Texas CPS, " and it "stated that there had been an open case on the family as a result of Mr. Ashmore physically abusing E.H. and that it closed its case after the family moved to Arkansas." Robbie Harper, E.H.'s biological father, told Hansberry that the Texas case required that Jerry "not be around E.H. until he received parenting classes and anger management."

         An order removing the children from their parents' custody on a seventy-two-hour hold was filed on July 17, 2014. The circuit court found that it was contrary to the children's welfare to remain in their home and that removal was in their best interest. The order states:

These findings are based on the affidavit presented with the Petition, which outline a small child that has been the victim of severe abuse. His mother is in denial about the nature and extent of his injuries. The adults in the home have been uncooperative with DHS thus far. The Affidavit notes that there was a true finding of physical abuse against [E.H.] in Texas, but the family moved to Arkansas before participating in services. DHS has been attempting to work with this family for almost a month, investigation time notwithstanding, and the adults have been entirely unresponsive to DHS requests. There is no information presented to lead this Court to believe mother or any putative fathers will be more receptive this time if maintained as a "thirty day" petition. The Court likewise finds that these reasons for removal are necessary to protect the health and safety of both juveniles.

         A probable-cause hearing was held on July 21, 2014, and the order from that hearing sets forth Hansberry's testimony that Robbie Harper had contacted her and said that there was a case in Texas and that he had temporary custody of E.H. while Alyssa and Jerry participated in services there. Harper told her that Alyssa had checked E.H. out of school and moved to Arkansas. Hansberry testified that Alyssa was participating in therapy with E.H. at the residential-treatment center. The circuit court found that probable cause existed based on the affidavit, and it continued to exist because "DHS has not yet had time or opportunity to fully investigate the matter such that this Court would be comfortable returning either of the children to the home." The circuit court ordered that Alyssa's visitation would be supervised twice a week; Jerry would have supervised visitation with H.A. twice a week; visitation was contingent on negative drug screens; both parents were to participate in random drug screens; and both parents were to complete a drug-and-alcohol assessment, counseling, psychological evaluation, and parenting classes. Further, the parents were ordered to establish paternity; maintain stable housing, employment, and income; keep DHS informed of their address, telephone numbers, and employment; and Alyssa was to participate in E.H.'s therapy as deemed appropriate by his therapist.

         The adjudication order filed on September 15, 2014, recites the testimony by Betty Banks that E.H. had told her he had been in trouble at school so he got a whipping with a rectangular board by Jerry, who kept the board in a box. She took pictures of the bruises, and Alyssa had told her that she did not know how he got the bruises. She testified that there was a true finding that Jerry was the offender of physical abuse against E.H. She also testified that she had "called Texas" and learned that a case had been opened on Jerry for physical abuse. That case was closed when the parents moved to Arkansas without completing services. Banks, referring to Texas, testified that "they only said there was a case open involving physical abuse and Jerry." She stated that Jerry's mother and grandmother may have been involved in the abuse, but "there is no finding against mother."

         The adjudication order also summarizes Alyssa's testimony that she had been living with Jerry for two years, and she did not believe that he had abused E.H. in Texas because it was an accident. She was at home when Jerry had spanked E.H. with a belt. She said, "E.H. ducked out and went to leave, punched Jerry, and went out of the room." Jerry did not go after him, and Texas DCFS got involved. She went to parenting classes and counseling, and E.H. stayed with Robbie Harper, his biological father. When Jerry moved to Arkansas to help his grandmother, who was fighting cancer, Alyssa later moved to help him. She stated that she did not believe that child abuse had occurred in Arkansas. She believed Jerry when he denied spanking E.H. The order states, "She understands that if Mr. Ashmore does not comply, her future is tied to his if she is with him. If he did not finish, she would 'remove herself from the situation.'" E.H. has ADHD, bipolar disorder, and anxiety. He went to Bridgeway, Rivendell, and Pinnacle Pointe treatment facilities. Alyssa testified that she participated in counseling with E.H. and enjoyed it. She stated that part of the Texas order was that Jerry was not supposed to be around her son. She said that E.H. had undergone behavioral treatment in Texas before the Texas case was opened, and Texas DCFS gave E.H. back to her when Jerry moved to Arkansas.

         The order also reflects that Jerry admitted that he had spanked E.H. in Texas, and he said that he had been aware of Texas's restriction on him being around E.H. He did not complete anger-management classes in Texas, and he was told that he could not see E.H. if he did not complete those classes; but he was told that he could complete them in Arkansas if he paid for them. He said that he did not know how E.H. got the bruises this time, and he denied doing it. He said that he could benefit from parenting classes and that he had no criminal history. He had been involved with E.H.'s therapy in Texas, and the therapist there told them that spanking with the belt was the last means necessary. He said when he spanked E.H. in Texas that day, he was not angry, and he had not used excessive force. He had talked to E.H. beforehand, E.H. had his clothes on, and they had checked on E.H. after he had run out of the room. He said that he first saw the bruise when the pictures were sent from Alyssa's sister's phone to Alyssa's phone. He said that he planned to remain with Alyssa, and he said that he had been "buffaloed" by Texas CPS. He thought that E.H. had gotten the bruises this time from a child-sized outdoor lawn chair. He testified that E.H. had been spanked in Arkansas a month or two weeks before the incident.

         The adjudication order also reflects that Toni Hansberry testified that the parents had been cooperative and had made the scheduled visits with H.A. She said that the Texas case was not a foster-care case. She recommended that Jerry needed a stand-alone anger-management course and that it should be "incorporated into therapy." She said that, even though the original court report recommended that H.A. go home, DHS now wanted more services in place before moving him home. She said that Alyssa believed Jerry over her child.

         The order states that Robbie Harper testified that he had been arrested for assault August 23, 2014, for chasing and beating a man who had stalked his wife, and he said that those charges were "all dismissed so far." He also said that E.H. had accused him of sexual abuse, but he was found not guilty. He insisted that the parents were found by Texas CPS to have committed physical abuse of E.H.

         The circuit court found by a preponderance of the evidence that the children were dependent-neglected, having been subjected to neglect and parental unfitness. The goal of the case was reunification or placement with an appropriate relative with a concurrent goal of adoption. The court found that Alyssa failed to protect E.H. from abuse by Jerry when she had reasonable cause to know that the child had been abused by him in the past. The circuit court found:

The family had an open case in Texas for the exact same reasons we are here today, yet she still allowed Jerry to physically discipline E.H. It is the court's belief that Jerry Ashmore caused the injuries to E.H. that caused the current case to be opened, and the court agrees with DHS's true finding of abuse against Jerry Ashmore with regard to E.H. . . . Although H.A. has not yet been abused, to this Court's knowledge, it does not have to wait until harm befalls him to extend protections to him as well. [The parents] circumvented the DCFS case in Texas and its rules, and there is no comfort level that they would not just pay lip service to this court's orders as well. E.H. has a lot of problems that children are not born with; these are environmental problems. . . . .
The court advises all parents that they must show a sustained improvement and demonstrate benefit from services received to be viable placement options. Checking off boxes, jumping through hoops, and lip service is insufficient to sustain a goal of placement or reunification. E.H. has been victimized at least twice; this Court [is] going to ensure as best it can that he will not suffer such abuse, neglect, or parental unfitness in any other placement over which this court has control. The court cannot ignore that E.H.'s behavioral counseling and issues seem to coincide with the time Mr. Ashmore became involved with the mother.
If the parents would have complied with services initially, these parents would not be in this courtroom. It was only when a thirty-day petition was filed, it was [sic] this court took the hold. The parents now have what they wished for, and a judge will tell them what to do and what services they will complete.

         The permanency-planning order, filed May 27, 2015, contains another lengthy synopsis of the testimony of each witness at the hearing. Baker testified that Alyssa had completed her psychological testing, had attended counseling, and had submitted to drug screens, and that DHS's goal remained reunification with Alyssa. She also said that E.H. had been in inpatient treatment at Pinnacle Pointe from June 11, 2014, until March 24, 2015. Lynn Hemphill testified that he is the therapist who had seen the parents twice a week since April 14, 2015. He also had met with E.H. in his foster home on two occasions. Hemphill stated that he did not know that Jerry was not supposed to have contact with E.H. when they came from Texas, and he had been told that there had been an allegation in Texas that was investigated, and that during that time, E.H. had stayed with his mother's sister until they went through classes, and he was then reunified with his parents.

         Jerry testified that H.A. was his biological child, and they had good visits during which he used some parenting techniques he had learned through his classes. He said that he had learned to express himself more effectively, they had discussed that Alyssa would be the primary disciplinarian for E.H., and they would consult with each other before any decisions were made involving E.H. He said that corporal punishment would not be used, and it had no effect on E.H. He said he had enjoyed the therapy sessions with Mr. Hemphill, and he had high hopes that continued therapy would work. He said that he had spoken with Texas CPS and was told that he could not stay in the apartment in Texas as long as Alyssa and E.H. were there but that Texas would have no control over what happened if they were to move to Arkansas. He said that he knowingly had Alyssa come to Arkansas instead of going back to Texas. He said that he had participated ...

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