FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-15-583]
HONORABLE STACEY ZIMMERMAN, JUDGE.
Standridge, for appellant Roderick Choate.
Lanford, Arkansas Public Defender Commission, for appellant
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
M. GLOVER, Judge.
order entered October 14, 2016, the trial court terminated
the parental rights of Roderick (Rod) and Lisa Michelle
Choate to their two minor children, I.C. and K.C. Both
parents appeal from that decision, presenting separate
briefs. We reverse the termination of parental rights with
respect to each.
this case in context, we have gleaned the following facts
from a confusing record. On September 25, 2011, Lisa and Rod
were married in Tulsa, Oklahoma. In August 2014, they
separated, and Lisa and the children went to live with
Lisa's parents, the Hebards, in Fayetteville, Arkansas,
where she filed for divorce. On February 13, 2015, the
divorce decree was entered. It gave Lisa custody of the
children and provided strictly supervised visitation to Rod.
In March 2015, Lisa and the children left the Hebards'
house and went to live with Rod's parents in Tulsa. Rod
was not living in the same house at the time. By June 12,
2015, however, the couple was living together again in
Oklahoma with the children when Oklahoma authorities applied
to take the minor children into emergency custody. The
Oklahoma application was accompanied by a "Declaration
in Support of Verbal Application and Verbal Emergency Custody
Order, " which provided in part:
2. Pursuant to an assessment of child safety conducted by the
Department pursuant to a referral, the Department determined
the children to be unsafe and in need of immediate protection
due to the following imminent safety threat: OKDHS was
involved due [to] concern of Threat of Harm due to [K.C. and
I.C.] regarding Mr. Choate's admission of having an
erection while holding his daughter, [K.C.], walking around
naked in front of his daughters and him admitting to watching
child pornography. Ms. Choate has expressed to several
people, including Arkansas CPS and law enforcement that she
has had concern of him molesting their daughters.
the children were taken into emergency custody by Oklahoma
officials, by June 15, 2015, they had been placed with the
maternal grandparents in Arkansas pending transfer of the
case to Arkansas. On the record before us, a criminal
investigation seems to have arisen, but there is no evidence
of any criminal charges ever having been pursued regarding
any sexual-abuse allegation or child pornography.
to an order entered July 9, 2015, by the Arkansas trial
court, a telephonic hearing was held that date between it and
the Oklahoma judge who had first exercised emergency
jurisdiction over the children. As a result of the hearing,
jurisdiction was found to lie in Washington County, Arkansas,
and a date was set for the adjudication hearing.
probable-cause order was entered July 15, 2015, in which the
trial court found probable cause existed to enter the ex
parte order for emergency custody; it still existed to
protect the children, necessitating placement with the
maternal grandparents, "because the court has concerns
that mother violated the [divorce decree] and allowed the
children to be [alone] with the father in Tulsa rather than
August 24, 2015, the trial court entered an adjudication
order finding the children dependent-neglected. The
adjudication order is a typical form document and in
paragraph 3, the finding of dependency-neglect was found to
be a result of "neglect" and "parental
unfitness" (designated by check marks next to those
terms). No check marks appeared next to "abandonment,
" "abuse, " "sexual abuse, " or
"sexual exploitation, " which were the remaining
options available on the form. The form adjudication order
further provided in paragraph 3 that the finding was based on
"the parties' agreement to a finding of
dependency-neglect because the allegations in the petition
and affidavit are true and correct, based on mother's
lack of stability in housing and employment and failure to
protect by violating the visitation order [apparently
referencing the visitation order contained in the
parties' divorce decree requiring supervised visitation
with the children for Rod] and father's prior addiction
to pornography and lack of stability in employment and
housing." The court ordered Rod's visitation with
the children to be supervised by DHS. Lisa was allowed to
continue living in the Hebards' house, along with the
children; her "visitation" with the children was to
be supervised by the Hebards; and she was not to be left
alone with the children. By order entered October 30, 2015,
the trial court found Lisa had "made material progress
through counseling, working with Children's House, and is
now employed, " and she "may be left alone with the
children [for short periods per day, not to exceed three
hours] so that the grandparents may have some respite
January 13, 2016 review order, the trial court found Lisa had
not complied with all the court orders and the case plan;
specifically, that she needed to address her mental-health
issues and obtain appropriate housing if she did not choose
to continue living with her parents; that she had completed
her parenting classes; that she had attended some IFS and
family counseling; and that she had made some progress toward
alleviating or mitigating the causes of the juveniles'
removal from the home and completing the court orders and
requirements of the case plan. In the same review order, the
trial court found Rod had complied with all the court orders
and the case plan; specifically, that he had maintained
housing and employment in the Tulsa area; he was attending
counseling to address his addiction to pornography; he was
taking his medications as prescribed; he had completed his
parenting classes; he had been consistent in his visitation
with the children twice monthly, and he had made much
progress toward alleviating or mitigating the causes of the
juveniles' removal from the home and completing the court
orders and requirements of the case plan. Rod's
visitation was to remain supervised by DHS. Lisa was allowed
to have unsupervised visitation at the Hebards'
6, 2016, the permanency-planning-hearing order was entered.
In it, the trial court authorized a plan for adoption with
DHS filing a petition for termination of parental rights
because "[n]either parent has made significant,
measurable progress toward achieving the goals established in
the case plan, " "[n]either parent has diligently
worked toward reunification, " and "[t]he girls
need a consistent, structured home life, " which the
trial court found the parents had demonstrated they could not
September 9, 2016, the termination hearing was held in
Washington County, Arkansas. Numerous witnesses testified in
a lengthy hearing. Melissa Bedford, who was a counselor at
Dayspring Behavioral Healthcare (Children's House), was
among the witnesses who testified. She stated she had served
as K.C.'s counselor from September 21, 2015, to the date
of the hearing, and as I.C.'s counselor since August 2,
2016. She explained K.C.'s diagnosis was posttraumatic
stress disorder; suspected child sexual abuse; parent-child
relational problem; child neglect; and developmental
disorders. Bedford testified that K.C., who turned four in
June before the September hearing, had engaged in play that
caused her concern, e.g., she had put dolls in the sand and
said they weren't supposed to see, with a male figure
standing over saying they weren't supposed to see or
know; she put a 3-D puzzle figure in the bathtub and wanted
it to be naked; she became upset when she couldn't get
the clothes off; and she played with baby dolls and wanted
them to be naked. After discussing modesty with her, Bedford
said K.C. made progress and wanted her dolls dressed.
observed K.C. never mentions Rod, and never says "my
dad, " but does ask when she's going to see her mom.
She said Rod never participated in family therapy; she also
acknowledged it was never ordered.
testified Lisa had been more cooperative since the last
hearing; before then, Lisa showed up about 75 percent of the
time; on two occasions, in meetings, Lisa had become upset
with her mother, Linda Hebard, and said she could not meet
with the girls and left; Lisa had made some progress; Lisa
was starting to use conscious discipline techniques and they
had engaged in family-play therapy.
recommendation was for K.C. to either remain with the Hebards
(grandparents) or be placed in an adoptive family. She did
not feel as if Lisa had worked through enough of her
parenting issues; and Lisa had made comments about Rod's
being suicidal, and that concerned Bedford about the
acknowledged: I.C. had been her patient for only about a
month, since August; I.C. had a new development in the last
couple of weeks going from very oppositional and aggressive
to being very concerned about noises in the hallway; and I.C.
had become very agitated a couple of days ago at the school,
wanting the teachers to sit between her and the
doorway-concerned a monster was going to get her.
Bedford's recommendation for I.C. was that she remain
with K.C. and either live with the maternal grandparents or
an adoptive family.
explained that sexual abuse was suspected with both children.
She stated, however, the only thing that concerned her about
I.C. was "last year" the teachers contacted her to
come observe I.C. during nap time, and I.C. was touching
herself and "moaning inappropriately." Regarding
K.C., the suspected sexual abuse had to do with the
"sexual acting out in her play, " which Bedford
said she has not been doing lately.
stated neither K.C. nor I.C. appeared to be afraid of Lisa or
Rod, although K.C. pretended to put on some wings one time
and said she needed to get away from dad. Bedford
acknowledged Linda Hebard could be overbearing and that it