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Salazar v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

April 5, 2017



          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          WAYMOND M. BROWN, Judge

         Appellant appeals from the circuit court's termination of her parental rights to A.M., born 8/15/14. On appeal, appellant argues that (1) the circuit court erred in abdicating its duty to evaluate the evidence and make its own findings as to the issue of A.M.'s placement across state lines with appellant, and (2) there was insufficient evidence to support a finding that termination was either in A.M.'s best interest or that the alleged grounds were proven or relevant to the circumstances of appellant and her boyfriend, Jeffrey McCollum.[1]

         On November 3, 2014, though they lived in Killeen, Texas, appellant and McCollum were driving through Arkansas on their way to Missouri when they were subjected to a routine traffic stop. Finding K2 (synthetic marijuana) and an infant in the car "covered by a blanket" that had "K2 smoke trapped" underneath it, appellant was arrested for possession of a controlled substance and endangering the welfare of a minor in the second degree. McCollum was arrested for possession of a controlled substance, possession of drug paraphernalia, and endangering the welfare of a minor in the first degree. The Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on November 6, 2014. The circuit court entered an ex parte order granting the petition on the same date.

         A probable-cause order was entered on December 11, 2014, stating that appellant had waived the necessity for a probable-cause hearing and finding that probable cause existed-and continued to exist-for A.M.'s removal. An adjudication order was entered on January 23, 2015, adjudicating A.M. dependent-neglected due to neglect and parental unfitness. Appellant stipulated that DHS would prove the facts stated in the affidavit and the circuit court found the same. In the order, the circuit court stated that it would transfer the case to State of Texas "if the Court in the resident county of the mother will accept transfer." The goal of the case was reunification.

         In the circuit court's April 16, 2015 review order, it stated that appellant had not yet received the case plan and therefore extended her time to complete her case plan by one month. It specifically stated that it "would not transfer [the] case to Texas at this time."[2]The goal of the case continued to be reunification.

          The circuit court's July 16, 2015 review order restated that the goal of the case was reunification and that the case would not be transferred to Texas. It stated that appellant "needs to comply with the case plan" for she had "minimally complied" in that she attended visits with A.M., but had "not provided proof that she had stable housing, attended counseling, completed a drug and alcohol assessment, completed a psychological evaluation or obtained employment." It noted that appellant had informed DHS that she would obtain services in Texas instead of Arkansas "through the Department" there. Appellant was advised that said services would need to meet Arkansas's DHS requirements and that she would be financially responsible for services she obtained outside of Arkansas.

         The circuit court entered an order on September 30, 2015, seeking an expedited placement decision under the Interstate Compact on the Placement of Children (ICPC) finding that under "Article III(d) of the [ICPC] codified as Arkansas Code Annotated section 9-29-201 et seq., this court may only authorize the Arkansas Department of Human Services ("DHS") to place each of the above juvenile [sic] in a receiving state, including provisional placement . . . after receipt of written notification from the receiving state that the proposed placement does not appear to be contrary to the best interest of the juvenile."[3]

         In its November 4, 2015 review order, the circuit court found that appellant had "complied with the case plan in that she has attended visits with the juvenile, attended counseling, completed a drug and alcohol assessment, attended drug treatment, completed parenting classes, [and] completed a psychological evaluation." However, appellant still needed to complete an ICPC home study, have her employment verified by DHS, and have McCollum's Social Security benefits verified by DHS. Its order also noted that McCollum had attended visits with A.M., attended counseling, completed a drug and alcohol assessment, attended drug treatment, and completed parenting classes. Finally, a Court-Appointed Special Advocate (CASA) was appointed and the circuit court stated that it would order an ICPC home study of appellant's residence in a separate order.

         A permanency-planning order was entered on January 15, 2016, stating that "[t]he Court, mindful of the available permanency-planning dispositions, does hereby determine that it is in the best interest of the juvenile that the goal of the case shall be: To authorize a plan to return the juvenile to the parent, [appellant]." It went on to state:

The Court finds [appellant] 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. Specifically, the conditions that caused the juvenile's removal and the juvenile's continued removal from the home; and the return of the juvenile to [appellant] shall occur within a time frame that is consistent with the juvenile's developmental needs but no later than three (3) months from the date of the permanency planning hearing[.]

         The circuit court stated that appellant still needed to complete an ICPC home study. The order stated that the circuit court would await the results of the ICPC home study "to determine the issue of custody of the juvenile with [appellant] and for monitoring purposes if the child is placed with [appellant]." If approved, A.M. was to be placed with appellant, noting that the circuit court "[wanted] to move as quickly as possible closing the case."

         On February 12, 2016, DHS noted that Texas had denied placement of A.M. with appellant and closed its file. The attached December 27, 2015 home study stated that it had been determined that the conditions in appellant's home were "Favorable" and that placement was "recommended" in appellant's family home based on the strengths determined during the assessment. However, it also stated that the "decision to verify or approve a home lies with the Foster and Adoptive Home Development Program" and that there was "no guarantee" that the home would be verified or approved based on the recommendation. A December 29, 2015 Kinship and Disposition Summary detailed that appellant's home had not been selected as a placement option due to a safety concern and a well-being concern. It stated that before reconsideration could be made, McCollum had to begin treatment for his schizophrenia, appellant and McCollum needed to complete drug and alcohol screenings or obtain recommendations from their therapist that they were drug free with the tools to remain so, and background checks needed to be completed in any state they had resided in the last five years, including Arkansas and Missouri.

         In the circuit court's fifteen-month-review order entered March 14, 2016, it changed the goal of the case to termination of appellant's parental rights and adoption. It stated that while appellant had complied with the case plan and McCollum had sought services as well as attended visits with A.M., the ICPC home study on their home was denied. It ordered that concerns raised in the home study "shall be addressed prior to placement of the juvenile with" appellant in Texas. DHS was ordered to request a follow up with the ICPC home study and prepare an addendum to the ICPC home study to be sent to Texas. The circuit court specifically noted that while the goal of the case had been changed to adoption, prior to the termination of parental rights (TPR) hearing, it "shall consider placement of the juvenile with the [appellant] in the State of Texas through ICPC if the issues raised by the State of Texas can be resolved."

         Appellant filed a motion to show cause on May 12, 2016, stating that "at the February 23, 2016 hearing, it was discovered that the original home study, " which was denied on December 29, 2015 by Texas, "did not contain the updated material that showed the compliance of the Defendant, with the bulk of the issues review [sic] by DCFC in Texas" and DHS "represented to the court that it would send an addendum." Appellant had determined that DHS had not requested the addendum as of May 11, 2016, thereby prejudicing her, and sought a contempt citation. An order to show cause was entered on May 20, 2016.

         On June 12, 2016, appellant's and McCollum's counselor since April 22, 2016, forwarded a letter stating that appellant had "made progress in regarding [sic] issues previously thought to be concerns in such a manner that [she did] not believe they [were] concerns at the time." She stated that appellant had "appropriately addressed concerns" about her father's contact with A.M. However, while noting McCollum's "potential to be more independent with support around learning tools to manage his symptoms appropriately[, ]" she stated that his "need for intensive support and his not being open to receiving support from anyone but [appellant made] her hesitant to recommend the child be placed in the couple's home at this time." She suggested that three to four months of additional time be given for appellant and McCollum to "learn how to act in a manner where [A.M.] is a priority consistently."

         Also on June 12, 2016, the counselor forwarded a letter stating that McCollum had made an appointment with a psychiatrist for the middle of July, but was seeking to be seen earlier through cancellations. She noted that McCollum had shown "a tendency to avoid taking appropriate responsibility necessary for a person with the mental and physical conditions";[4] however, she thought he had "the potential to parent appropriately if he takes proper self-care and follows professional recommendations from everyone on his treatment team." While she thought he had the potential to be an "effective parent[, ]" he needed more time to "actualize that potential." McCollum simply needed more time "[d]espite his recent increased compliance[.]"

         In its July 11, 2016 order, the circuit court granted appellant's motion to dismiss her motion to show cause, and the TPR hearing was continued for a period of a little under a month with "[g]ood cause being that the ICPC home study has not been completed on the mother's home and it is anticipated that it will not be completed prior to June 28, 2016." Despite the continuation of the TPR hearing, DHS filed a petition to terminate appellant's parental rights on July 14, 2016, citing the grounds of failure to remedy cause for removal, [5]that other factors arose subsequent to the petition and appellant had manifested and incapacity or inability to remedy the subsequent issue, [6] and that A.M. had been subjected to aggravated circumstances where a determination had been made that there was little likelihood that services to the family would result in successful reunification.[7]

          In the petition, DHS stated that it had completed background checks on appellant and McCollum as requested by Texas and had provided all pertinent information in its possession to address Texas's concerns, however, Texas responded upon receipt that "the information provided did not elevate the concerns addressed in the original home study and the home would not be reevaluated." Because appellant's current home had not passed the ICPC home study, A.M. could not be returned to appellant's custody.[8] It listed A.M.'s potential harm as appellant's "inability to provide a safe and appropriate housing[.]"

         Appellant responded to DHS's petition on August 1, 2016, in pertinent part, stating that DHS had failed to exercise reasonable efforts in obtaining the home study as required by the ICPC. She also stated that of the three concerns upon which denial was made- failure to treat McCollum's schizophrenia properly, no proof of treatment for drug use and completion of required drug and alcohol screenings, and failure to complete background checks-two, namely the background check and proof of drug treatment and screening, were DHS's responsibility. She noted that both she and McCollum had completed drug and alcohol screenings and treatment and that DHS did not seek criminal background checks until months after the ICPC home study had been completed.[9]

          Attached also to the response was a detailed list of when she and McCollum received and completed services as well as two August 18, 2016 letters from their counselor. In her letter regarding McCollum, she stated that he had had an "observable shift in his ability to take more responsibility for appropriate self-care" and had "made progress quicker than [she] had expected." She felt at that time that he had the support and the "ability to interact with this support appropriately enough to be a healthy parent." In her letter regarding appellant, she stated that appellant's "ability to set boundaries with all individuals she loves in regards to what she views as acceptable and unacceptable leads [her] to feel confident in stating that she has the ability to stay mentally healthy enough to parent with excellence."

         A hearing on appellant's TPR petition was held on August 20, 2016. A DHS supervisor on the case testified that DHS had no knowledge of appellant being released from counseling; though she had contacted appellant's new employer and obtained her potential start date, DHS had no "verification of employment" and did not know if appellant still had the job; and McCollum had not submitted an update on his Social Security benefit amount, which DHS showed as being $488.67 per month. The supervisor testified that one reason for denial of appellant's Texas ICPC home study was McCollum's untreated schizophrenia, a concern which DHS concurred with and a diagnosis of which DHS had not been informed. McCollum had begun treating with a psychiatrist in June 2016, but DHS had not received anything from the psychiatrist.

         He supervisor spoke of DHS's concern that appellant's father-who sexually abused appellant's sister-would be around A.M. given appellant's continued partial financial support from her parents and appellant's still being around her father. She stated that an ICPC home study was first done on appellant's parent's home and was denied based on appellant's father's conviction for sexually abusing his daughter. The ICPC home study is how DHS learned of the conviction; appellant "was not forthcoming about the previous conviction" and "[a]t one point had even denied that it existed." It was after the denied home study of her parent's home that appellant requested a home study on her home.

         The supervisor testified that DHS submitted the requested addendum information to Texas twice, but the home study was still denied, so there was not an approved ICPC home study from Texas on appellant's home. She admitted that DHS had not initially submitted material to Texas showing that appellant and McCollum had completed drug testing or submitted to any drug screening, but explained that "[w]hen you request an ICPC home study you give the information requesting [sic] the home environment" and requested information; "[y]ou don't give case plan completions." Furthermore, she stated that appellant's financial situation had been an issue from "day one" and that appellant's "reliance on her parents for financial income" was connected to that issue. She testified to informing appellant that her reliance on her parents financially "would not be appropriate" after learning of her father's sexual ...

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