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Choate v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

May 17, 2017



          Dusti Standridge, for appellant Roderick Choate.

          Leah Lanford, Arkansas Public Defender Commission, for appellant Lisa Choate.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          DAVID M. GLOVER, Judge.

         By 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.

         To put 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.

         Though 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.

         According 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.

         A 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 supervised."

         On 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 time."

         In the 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' discretion.

         On June 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 provide.

         On 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.

         Bedford 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.

         Bedford 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.

         Bedford's 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 children's safety.

         Bedford 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.

         Bedford 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.

         Bedford 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 ...

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