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Adkins v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

April 12, 2017

ERNEST ADKINS APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE MARION COUNTY CIRCUIT COURT [NO. 45JV-15-9] HONORABLE DEANNA SUE LAYTON, JUDGE

          Worlow Law, LLC, by: Jacob Worlow, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          KENNETH S. HIXSON, Judge

         Appellant Ernest Adkins (Ernest) appeals from the Marion County Circuit Court's permanency-planning order. In the order, the trial court changed the goal of the case to termination of parental rights and adoption. On appeal, appellant generally contends that the trial court erred in changing the goal of the case. We reverse and remand.

         On May 1, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of I.A. (DOB 12-22-2006) and D.A. (DOB 9-5-2012). In the affidavit attached to the petition, DHS stated that it removed the children from the home after it received a referral that the children's parents, Alisha Adkins (Alisha)[1]and Ernest, were using drugs while caring for the children. During an investigation, DHS discovered that the children lived with both parents and with their maternal grandmother, Pearl Zimmerman (Pearl). Pearl stated that the family had moved into her home to take care of her because she had breast cancer; yet, she stated that she was unable to proceed with chemotherapy treatments because she had to take care of the children. Pearl suspected that Alisha and Ernest were using drugs. I.A. confirmed that her parents used drugs and that her parents got "really mean" when using drugs. Alisha admitted to the investigator that she had used drugs. The trial court found probable cause existed for the removal. An adjudication hearing was held on June 30, 2015, and the trial court found that the children were dependent-neglected. The trial court set the goal of the case at that time to reunification with a concurrent plan for relative placement.

         A review hearing was held on August 12, 2015, and the trial court found that the case plan was moving toward an appropriate permanency plan. However, the trial court additionally found that the parents had not been complying with the case plan at that time and ordered that Pearl be considered for placement. In the October 28, 2015 review hearing, the trial court found that Alisha still had not complied with the case plan, other than to attend visitation and submit to drug screens, and that Ernest still had not complied with the case plan, other than to attend visitation, submit to drug screens, and obtain employment. Then, at the February 2016 review hearing, the trial court again found that the parents had only minimally complied with the case plan.

         A permanency-planning hearing was held on April 20, 2016. Only Jennifer Matney, the family-service-worker supervisor, testified at the hearing. The children were nine years old and three years old at the time of the hearing. She explained that they were currently placed together with their aunt in a provisional foster home. She testified that the children were doing well and that their needs were being met.[2] Although the goal of the case had been reunification, Matney requested that the goal be changed to termination of parental rights because the parents had made only minimal progress in their case plan. Matney testified that the maternal grandmother, Pearl, had been exercising visitation with the children and that supervised visitation would take place at Pearl's home when the children's parents visited. Although Pearl tested positive for drugs during her drug screens, Matney explained that Pearl was undergoing treatment for cancer and that the treatment would "trip her drug screens." Therefore, Matney explained that DHS verified that Pearl had prescriptions for the drugs found in her system and that she did not have any concerns that Pearl was using illicit drugs at that time. Matney testified that Pearl had just begun to have extended visitation with the children and that Pearl was a potential candidate for adoption or relative placement. Matney further acknowledged that the children had a strong bond with their parents and with their grandmother.

         After Matney's testimony, both parents joined in asking for a directed verdict and orally argued why the goal of the case should remain as reunification. Alisha specifically argued that the permanency-planning statute listed relatives as a preference. She argued that she did not understand why there was any reason to "employ a termination because permanency can actually, indeed, be achieved faster for a child with relatives rather than termination. Because we have relatives sitting right in the courtroom today." Alternatively, she requested that a separate placement hearing be held to consider placement with Pearl if the goal was changed to termination. The attorney ad litem acknowledged that the children had been placed with their aunt and uncle in provisional foster care. However, the attorney ad litem opined that termination would be in the best interest of the children. The trial court denied the motions for directed verdict and changed the goal of the case to termination and adoption.

         In the amended permanency-planning order filed on October 11, 2016, the trial court made the following relevant findings:

3. The Court, mindful of the available permanency planning dispositions and in accordance with the best interest, health and safety of the juvenile, does hereby determine the goal of the case shall be:
Authorizing a plan for adoption with the department filing a petition for termination of parental rights because:
(A) The juvenile is not being cared for by a relative and termination of parental rights is in the best interest of the juvenile;
(B) The Department has not documented in the case plan a compelling reason why a petition for termination of parental rights is not in the best interest of the juvenile;
(C) The Department has provided to the family of the juvenile, consistent with the time period in the case plan, such services as the Department deemed necessary for the safe return of the juvenile to the juvenile's home if ...

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