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McKinney v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

September 20, 2017

MAX MCKINNEY, SR. APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DIVISION [NO. 16JV-15-410] HONORABLE CINDY THYER, JUDGE.

          Dusti Standridge, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee Arkansas Department of Human Services.

          WAYMOND M. BROWN, Judge.

         Appellant appeals from the circuit court's termination of his parental rights to B.M., born 2/18/02; and A.M., born 10/5/12, in its January 25, 2017 order.[1] Because the circuit court's findings supporting termination are not clearly erroneous, we affirm.

         I. Facts

         An emergency hold was taken on B.M. and A.M. on November 10, 2015, by order of the circuit court, due to allegations involving inadequate supervision due to drug use by the children's mother, Natasha Furnish, and appellant.[2] Appellant tested positive for methamphetamine.

         Appellee Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on November 15, 2015. The circuit court entered an ex parte order for emergency custody on the same date. A probable-cause order was entered on November 16, 2015, in which the circuit court found that there was probable cause that emergency conditions existed which necessitated removal of the children from the "custody of their mother" and continued to exist, thereby necessitating that the children remain in the custody of DHS. It found appellant to be the legal and biological father of B.M. and A.M. Appellant was ordered to comply with a list of standard orders.

         The children were adjudicated dependent-neglected on account of "[p]arental unfitness due to drug use of the mother" in the circuit court's adjudication order entered on December 11, 2015. However, the circuit court found that appellant "did contribute to the dependency-neglect of the herein juvenile, [sic] specifically, [he] tested positive for Methamphetamine[, ]" that appellant was not a fit parent for purposes of custody, and that the children could not be safely placed with appellant. It explicitly stated that appellant must follow the case plan and court orders. The goal of the case was reunification with a concurrent plan of relative placement, permanency, and adoption.

         A review order was entered on May 6, 2016, in which the circuit court stated that appellant had participated in the case by visiting the children on a regular basis, submitting to random drug screens, submitting to a drug-and-alcohol assessment, and by "very partial" [sic] cooperating with DHS and complying with the case and all court orders. It also stated that appellant had not participated in and completed parenting classes; remained drug free, testing positive most recently for THC on March 23, 2016; obtained and maintained clean, safe, and stable housing, with utilities turned on; obtained and maintained stable employment; or prepared and submitted a budget indicating sufficient income. Finally, it stated that appellant had started "the 12-out-patient drug sessions, completing 4 so far" while noting that appellant "needs to consider whether outpatient is sufficient or whether [he] needs more treatment."

         A review hearing was held on July 27, 2016; appellant did not appear. A review order was entered on July 28, 2016, in which the circuit court stated that appellant had only participated in the case plan by viewing "The Clock is Ticking" video and submitting to a drug-and-alcohol assessment. It found that appellant had not participated in the case with regard to any of its other orders, specifically noting that appellant stated he had taken methamphetamine on July 8, 2016; appellant had been incarcerated from May to July 2016, with an arrest warrant for him in Cleburne County; and appellant had had "[n]o contact since July 8, 2016." In each review order, the circuit court found that DHS had made reasonable efforts to provide family services and the case plan remained the same.

         DHS filed its petition for termination of appellant's parental rights on September 9, 2016. It alleged that termination of appellant's parental rights was in the children's best interest, taking into consideration the likelihood that the they would be adopted if the termination petition was granted and that there was the potential harm to their health and safety caused by returning them to the custody of the appellant.[3] DHS alleged the following grounds against appellant pursuant to Arkansas Code Annotated section 9-27-341:

1. That appellant had abandoned the children, specifically noting that appellant had failed to visit them since June 2016, had several active warrants for his arrest, and had several criminal charges;[4] and
2. That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent, specifically noting that appellant did not compete rehab, was still using illegal drugs, and had several active criminal warrants and charges, including an assault on a woman at St. Bernards Hospital.[5]

         A hearing on DHS's termination petition was held on January 5 and 12, 2017. Appellant was initially in court, according to his attorney, but he left and did not return. At the beginning of the hearing, appellant's attorney argued that a permanency-planning hearing should be held before a termination-of-parental-rights (TPR) hearing on DHS's petition. Given that B.M. had been placed with a married, paternal aunt in North Dakota, appellant moved that the home study of the aunt be considered for placement of A.M.[6]

         Noting that Arkansas Code Annotated section 9-27-341(b)(1)(B) states that a permanency-planning hearing is not a prerequisite to filing a TPR petition or to a circuit court hearing the same, the circuit court found that it "[did] not believe that there had been an error or a significant omission in not having a Permanency Planning Hearing because the Department was entitled to file a Petition for Termination of Parental Rights according to that Statute without a Permanency Planning Hearing having been held." Finding it to be "premature for the Court to consider a hearing about the placement of the children when the Court has not decided as to whether Mr. McKinney does or does not have parental rights to these children intact[, ]" the circuit court found it appropriate to proceed with the TPR hearing, which followed immediately thereafter.

         Tina Green, foster-care worker and the latest caseworker assigned to the case, [7]testified that appellant missed his initial drug-and-alcohol assessment, though he completed the rescheduled assessment. He was recommended for outpatient treatment but failed to complete treatment; he was discharged for noncompliance after four sessions. He eventually completed another drug-and-alcohol assessment on December 30, 2016, which recommended a 21-day inpatient program. He was currently in an inpatient rehab as of January 3, 2017, which he was scheduled to complete on or around January 24, 2017; he had left another rehab-Project New Start-voluntarily on November 21, 2016.

         Green testified that there were periods where appellant was not in contact with DHS, leaving it with no ability to drug screen him. The longest period was approximately seven months, during which DHS had only two drug screens for appellant, the latest being on January 3, 2017, when he tested positive for "methamphetamine, MPA, and oxy." Green did not believe appellant's drug issue had been "rectified satisfactorily." She opined that "at least six months of some sort of sobriety" would have been helpful; "a minimum of three" months.

         Green testified that appellant did not have stable housing, as he was living with relatives in Mississippi, and she had not been able to check the home for appropriateness. Appellant never asked for services to be provided in Mississippi, stating that he was willing to travel to Jonesboro to complete the services if DHS set them up; he did not tell her that he was completing parenting classes or any other services in Mississippi. Green had provided appellant with the information for parenting classes, but he had not provided proof of completion. Appellant had provided no proof of employment or income, and though he had been complying with visitation, it had not been consistent due to his different rehab entries and periods of incarceration.

         Appellant had told Green that he and Furnish were still married and living together in December 2016; appellant had not told her that their relationship status had changed. Appellant brought Furnish to his January 3, 2017 visit with the children though she remained in the car; Green saw that as evidence that the two "remained together."[8] Green had concerns with appellant's continued relationship with Furnish, whom she described as unstable as well because "she had admitted out of her own mouth" that she still had current drug-use issues, and the circuit court had terminated her parental rights to the children, a decision after which appellant married her.

         Green believed termination to be in the children's best interest based upon appellant's "instability, the current drug use"; his lack of proof of income; his noncompliance with court orders; and his lack of adequate housing. She believed the above-referenced factors posed a danger to the children and believed the children were adoptable-even if there were currently no families interested-though she testified that there were currently families interested in adopting the children.

         Gretchen Lackey, the caseworker immediately preceding Green from March 2016, testified by phone.[9] She stated that appellant had at least three visits prior to being arrested on May 24, 2016, and that she received a certified letter that appellant had gone to rehab in North Dakota. She had a meeting with appellant, while visiting Furnish who was pregnant at the time, but did not have a drug screen during that meeting because appellant stated he would fail for methamphetamine.[10] She had no direct contact with appellant from that conversation until she left on September 23, 2016, and he had no visits with the children between his May 24, 2016 arrest and when she left. She also stated that appellant had been made aware of parenting classes as of the July 27, 2016 order, which stated that he had not completed classes, but he was not in contact with her "at one point" in the case, so she did not know if he completed parenting classes.

         Where not duplicative of other testimony, appellant testified that he owed about $4, 000 total in fines between Cleburne and Craighead Counties and had payment arrangements on both fines, neither of which was in good standing. He said he went to rehab in North Dakota on July 19, 2016, and returned on August 23, 2016, when he left rehab after M.M. was born prematurely. He asserted that he had been in Arkansas since M.M.'s birth, though he later testified that he was in Mississippi between August 24, 2016, and September 14, 2016. When he returned to Arkansas, he started the Project New Start rehab, but quit at the end of November because he alleged that they had him working without providing any services; he has been in Mississippi since he quit Project New Start and considers it home. He planned to complete a 12-week outpatient program after his current program. He claimed to have participated in parenting classes, but admitted that he had provided no proof to DHS.

         Appellant testified to being incarcerated for two days in April 2016; from May 24, 2016, to June 29, 2016; and from September 14, 2016, to October 14, 2016. He denied having any arrests or having returned to jail since his October 14, 2016 release. He currently had arrest warrants and had been told to turn himself in when he completed rehab; he did not turn himself in between leaving rehab in November and starting a new program in January because he had not completed rehab.

         Appellant asserted that he was last employed two weeks prior to the hearing, working for his father-in-law; he admitted providing no proof of employment. Though he worked for one month, he did not use any of the income to pay his fines. He asserted that he used some of the money toward rehab, though he admitted that he did not have to pay for the rehab he was currently in.

         Appellant asserted that "the problem that [he'd] had since this case began [had] been [his] drug use" and he "[hadn't] been able to get that under control." He missed visitation between May 24, 2016, and September 2016 not "for no reason" as he wanted to visit his children, but because "[i]t was just the situations [he] got [himself] in prohibited that."

         Regarding his October 24, 2016, post-termination-of-her-rights marriage to Furnish, appellant stated that Project New Start was the only program-a six-month inpatient program-that would accept him without insurance, but he could not go there while Furnish was a patient unless they were married, so he married her. He admitted that he was not asking the court to place the children with him at that time as he wanted to complete rehab since he had "never had the tools to utilize to be able to stay sober[.]" He was asking the court to place the children with his sister. He felt like "six months would be a good time" for him to get it together. Appellant admitted that he had had a drug problem for fifteen years. When asked what efforts he had taken to enter a rehab or some sort of counseling, appellant maintained that he had had a "three-and-a-half-years sobriety" from 2008 to 2010 when he worked for a fire department. He went on to maintain that he did not start back using until 2012 and admitted that he did not seek rehab or try to maintain his sobriety; he "didn't realize that [he] had a problem" because he was able to provide for his children, kept a job, and took care of his "everyday responsibilities."

         The court bailiff then testified to contacting dispatch and learning that appellant had four failure-to-appear warrants and three contempt-of-court warrants in Jonesboro. He and a warrants officer from the Jonesboro Police Department discussed appellant's situation with appellant. The officer told appellant to contact him after he finished rehab on January 23, 2017.[11]

         Following the bailiff's testimony, appellant moved to dismiss the petition due to lack of sufficiency of evidence to support either ground asserted by DHS. The circuit court granted the motion on the abandonment ground, noting that the appellant had visited the children since the petition, as testified to by Green. The motion was denied as to the other subsequent-factors ground.

         Appellant's sister, Jennifer Alber, testified by phone to having B.M., who had no concerns that she knew of, and wanting A.M. From February 2015 to July 2015 when appellant was incarcerated and Furnish was not allowed to have the children in her care, B.M. and A.M. had lived with Alber under a guardianship. Her guardianship ended right after appellant got out of jail. She asserted that she had talked to DHS "for over a year" about getting custody of the children, but there were three different caseworkers. If she received custody, as far as their interaction with appellant, she "will do whatever the Court asks [her] to do." She was willing to follow any safety plan put in place regarding B.M. She stated that appellant had "always had an issue on and off" with drugs, but it was not her understanding when she got the guardianship that Furnish had an issue with drugs.

         Additionally, the circuit court sought testimony regarding a delinquency charge against B.M., which was implicitly spoken about. Testimony revealed that the charge was unsubstantiated and converted to a FINS petition, but B.M. was required to go through sex-offender-specific counseling. The allegation arose after the children entered care; A.M. was the alleged victim. Alber testified she did not know about the court-ordered therapy and so B.M. had not completed it. B.M.'s counsel, Ms. Jones, [12] testified that this deal was made to keep B.M. from being labeled as a sex offender, thereby limiting their options for placement. Accordingly, B.M. does not have a delinquency finding against her. Jones could not recall if there were any restrictions on B.M.'s being placed with younger children.[13] But given that B.M. had not undergone the court-ordered therapy, Jones admitted that it would cause her concern about placing B.M. in a home with other younger children, particularly the alleged victim in the matter. Jones advised that the reason for placing B.M. in the therapy was to have a professional weigh in on the risk and on whether any restrictions need to be placed on B.M.[14]

         Appellant then renewed his motion to dismiss; it was denied. The ad litem then recommended that appellant's rights to the children be terminated. The circuit court orally granted DHS's petition and made a number of findings, specifically ...


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