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McNeer v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

October 4, 2017

JOHNA McNEER APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN APPELLEES

         APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10JV-15-28] HONORABLE ROBERT E. McCALLUM, JUDGE

          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

          PHILLIP T. WHITEAKER, Judge

         Appellant Johna McNeer appeals from the decision of the Clark County Circuit Court to terminate her parental rights to her twin children, M.T.M.1 and M.T.M.2 (d/o/b 3/22/07). On appeal, she does not contest the circuit court's finding that sufficient statutory grounds supported the termination. Instead, she challenges the best-interest prong, arguing that there was insufficient proof regarding the adoptability of the children and the potential harm they faced if returned to her custody. For the reasons set forth below, we affirm.

         I. Background

         The Arkansas Department of Human Services (DHS) has a significant history with McNeer and her twin children. DHS opened a preventive-services case when the children were born with cocaine in their systems. DHS later filed a petition for emergency custody and for a finding of dependency-neglect in April 2015, alleging neglect and parental unfitness.

          McNeer had been involved in a hit-and-run accident and was being placed under arrest when officers found possible cocaine in her car within reach of the children. McNeer also had a warrant out of Little Rock and another out of Searcy. McNeer refused to take a drug screen for DHS but admitted that she would be positive for marijuana and crack cocaine. Because McNeer had no family who could take the twins, DHS took custody of the children.

         The children were subsequently adjudicated dependent-neglected due to neglect and parental unfitness. Specifically, the court found that McNeer had used cocaine immediately prior to the removal of the children and had left cocaine within reach of the children. McNeer stipulated to these findings. The court set the goal of the case as reunification and directed DHS to develop a case plan.

         In June 2015, the circuit court entered an order returning custody of the children to McNeer. In July 2015 and October 2015, the court entered review orders continuing custody with McNeer, finding that she had substantially complied with the case plan and that she had completed a drug-treatment program. The return of custody, however, was short lived. In November 2015, DHS filed another motion for ex parte emergency change of custody. The affidavit accompanying this motion noted that since the children had been returned to McNeer's custody in June, McNeer had experienced some mental-health problems that necessitated treatment at a dual-diagnosis treatment facility. McNeer was released from treatment in September with a plan to complete three drug screens per week and attend a twelve-step program. Despite that plan, McNeer attended only two drug screens in the week after she had been discharged and one the following week, and she failed to appear for any other drug screens after that time. In addition, McNeer failed to meet with DHS staff despite repeated requests that she do so, and her children missed multiple days of school after she had been discharged from treatment. When DHS was finally able to contact her, McNeer texted her caseworker to say that she was going to give custody of her children to an aunt in Mississippi.

         The court once more adjudicated the children dependent-neglected in March 2016 due to neglect and parental unfitness as a result of McNeer's drug use.[1] The goal of the case remained reunification at that time. By the time of an August 2016 review order, however, the court found that the case plan was not moving toward an appropriate permanency plan for the children. The court found that McNeer had not complied with the case plan because she had been incarcerated since March 2016. Following a permanency-planning hearing in September 2016, the court changed the goal of the case to adoption and authorized DHS to file a petition for termination of parental rights. In its order, the court noted that McNeer was serving a four-year prison sentence related to a revocation of her probation stemming from the March 2015 hit-and-run accident and her guilty plea to possession of drugs and drug paraphernalia.

          DHS subsequently filed a petition for termination of McNeer's parental rights alleging four statutory grounds for termination[2] and that termination was in the best interest of the children. After a hearing, the circuit court entered an order terminating McNeer's parental rights, specifically finding that the termination was in the best interest of the children.

         McNeer filed a timely notice of appeal and now argues to this court that the circuit court erred in finding that termination was in the children's best interest. Specifically, McNeer argues that there was a "complete lack of evidence . . . establishing the adoptability of the children" and that the evidence was insufficient to show that returning the children to her posed a risk of potential harm.

         II. Stand ...


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