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Smith v. Arkansas Department of Human Services and Minor Child

Court of Appeals of Arkansas, Division III

June 7, 2017



          Tabitha McNulty, 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.

          ROBERT J. GLADWIN, Judge

         Appellant Britney Smith appeals the October 19, 2016 order of the Madison County Circuit Court terminating her parental rights to her minor child, A.S. She argues that the circuit court erred in granting the termination-of-parental-rights (TPR) petition because appellee Arkansas Department of Human Services (ADHS) failed to present sufficient evidence that TPR was in the child's best interest, specifically challenging the potential-harm element of the best-interest analysis. We affirm.

         I. Facts

         On August 17, 2015, ADHS went to the home of appellant and her husband, Fletcher Smith, [1] to investigate allegations of drug use, environmental neglect, and striking a child with a closed fist. When arriving at the home, ADHS encountered the parents and A.S. The ADHS worker observed that A.S. did not have any bruises but that the home was dirty. The parents were also unable to produce samples for the ADHS worker to perform drug tests. While the ADHS worker was at the home, the maternal grandmother and great-grandmother arrived and removed A.S. from the home over the objection of the ADHS worker. The ADHS worker, with the assistance of the police, was able to retrieve A.S. ADHS exercised a seventy-two-hour hold on A.S. based on the family's prior history with ADHS, the family's refusal to comply with the investigation, and the family members' absconding with A.S.

         On August 20, 2015, ADHS filed a petition for emergency custody and dependency-neglect, alleging detailed concerns of drug use, environmental neglect, and that A.S. had been hit with a closed fist. Also on August 20, 2015, the circuit court entered an ex parte order for emergency custody granting ADHS custody of A.S. A probable-cause hearing was held on August 25, 2015, after which the circuit court entered an order finding that probable cause existed, based on (1) the home being unsafe, (2) the parents refusing drug screens, (3) a family member fleeing with A.S., and (4) the extensive history between ADHS and the family, such that continued custody of A.S. should remain with ADHS. The circuit court entered a supervised visitation schedule and ordered certain services. Specifically, appellant was ordered to cooperate with ADHS; call the caseworker once a week; attend the case-plan staffing; keep ADHS informed of her contact information; refrain from using illegal drugs; submit to random weekly drug screens; maintain stable, clean, and safe housing; maintain stable, adequate employment; demonstrate an ability to keep the juvenile safe; submit to a hair-follicle drug screen; and follow the case plan and court orders.

         A court report was submitted on September 18, 2015, that detailed that A.S. was healthy and "on track for his age." Following the adjudication hearing held on September 21, 2015, the circuit court entered an order adjudicating A.S. dependent-neglected based on the finding that A.S. was at a risk of harm due to neglect and parental unfitness and finding that the previous allegations in the petition were true and correct-the poor environmental conditions of the home, the failure of the parents to submit to a drug screen during the investigation, and the great-grandmother running off with A.S. The circuit court noted that since A.S. had been removed, appellant had failed a drug screen for methamphetamine and amphetamine and that they had moved and reportedly were staying with friends in Fayetteville. Appellant had attended only two of four scheduled visits and had not submitted to weekly drug screens. The goal of the case was set for reunification, and A.S. was placed in the home of relatives at the time of the hearing. The circuit court continued its prior orders, adding that appellant was to participate in individual counseling and complete twenty hours of parenting classes.

         The circuit court found that appellant had complied with the prior orders from the probable-cause hearing in that she was working, that she had attended the case-plan staffing, and that she had scheduled an appointment with Ozark Guidance Center so that she could resume her mental-health medications. ADHS had made referrals for individual counseling and hair-follicle exams but had not yet received approval for those services. The circuit court allowed visitation for the extended family.

         A Court Appointed Special Advocate (CASA) report was submitted on January 14, 2016, that indicated that A.S. "enjoys the visits with his mother, smiles when he sees her and becomes fussy if she leaves the room." CASA detailed that appellant's family had helped her obtain an apartment that was clean and furnished. A.S. had remained with appellant's relatives, even though the placement was planned to be only temporary. Appellant's family was committed to help support her in a manner that was best for appellant and A.S. ADHS submitted a court report on January 20, 2016, that recommended continued foster care, work with the family, and a review.

         On January 25, 2016, a review hearing was held. The circuit court found that the parents had not made sufficient progress to have A.S. returned to their custody. Appellant had not complied with all court orders or case-planned services. Although she was employed and was participating in therapy at Ozark Guidance Center, the circuit court found that her progress had been only minimal. The prior orders continued in the review order filed on the same date.

         Another CASA report was filed on May 4, 2016, and ADHS filed a court report on May 11, 2016, and a case plan on May 12, 2016. The permanency-planning hearing was held on May 16, 2016, at which time the circuit court changed the goal of the case to adoption. The circuit court found that appellant had not complied with most of the court orders and case-planned services and had made only minimal progress. Approximately three months prior to this ...

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