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Ross v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

October 4, 2017



          Leah Lanford, Arkansas Public Defender Commission, for appellant Jessie Ross. Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant Krista Jameson.

          Jerald A. Sharum, Office of Chief Counsel, for appellee.

          N. MARK KLAPPENBACH, Judge

         This is an appeal following the order entered on February 21, 2017, by the Crawford County Circuit Court terminating the parental rights of appellants Krista Denise Jameson and Jessie Bill Ross. Krista is the biological mother of a daughter, MR, born in September 2009, and a son, JR, born in October 2008. Jessie had parental rights only as to MR, not JR. Both parents timely appealed the termination of their parental rights. Krista's attorney filed a merit-based brief, asserting that the trial court clearly erred in failing to follow the preferential goals in the permanency-planning statute prior to terminating her parental rights.[1] Jessie's attorney filed a no-merit brief and a motion to be relieved as counsel pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i) (2016). Jessie's attorney asserts that there are no issues of arguable merit to support an appeal of the decision to terminate his parental rights. We affirm the termination of Krista's parental rights to MR and JR. We also affirm the termination of Jessie's parental rights to MR, and his counsel's motion to be relieved is granted.

         Factual History

         MR and JR came into emergency custody of the Department of Human Services (DHS) in April 2015 while the children were residing with their paternal grandmother, Tawana Mitchell, in a trailer in Chester, Arkansas. Officers were present to arrest the grandmother and her boyfriend, Ricky Shaffer. Mitchell had been using methamphetamine, and Shaffer was a felon in possession of a firearm and drugs. The trailer was old, filthy, and had no running water. Five-year-old MR was present, and she was noted to be dirty. Six-year-old JR was at school.

         When Krista was called, she told the caseworker that she had put her children with her mother until she could get back on her feet. Krista was living in a small trailer with her boyfriend, but there was not any room for her children. Krista said that she knew her mother used marijuana, but she was unaware of the methamphetamine use. Krista tested positive for marijuana. Krista stated that she had bipolar disorder, depression, and anxiety issues but that she was not on any medication. She admitted having used methamphetamine in the past but said she no longer used it. The children told the caseworker that they did not really see their mother very much; she would visit if she had gas money. Jessie was imprisoned.

         In the probable-cause order, the trial court found that Krista had placed her children in an unsafe environment and was unable to properly care for them due to lack of stability. The children were adjudicated dependent-neglected in a June 2015 adjudication hearing, where Krista was found to be unfit and neglectful, having failed to provide stable, safe housing and having inadequately supervised her children. Krista was ordered to obtain safe and appropriate housing, provide proof of sufficient income, attend visitations, attend parenting classes and demonstrate proper parenting skills, comply with random drug screens, submit to a drug/alcohol assessment, cooperate with the case plan, and request any needed transportation from DHS a week in advance.

         The matter was reviewed in September 2015. At that point, DNA testing eliminated Jessie as the father of JR, but he was ordered to comply with the case plan as to MR. He remained incarcerated. Krista had partially complied with the case plan by visiting regularly, completing her drug/alcohol assessment, testing negative for drugs, obtaining housing although it needed some work, and cooperating with DHS. She was ordered to complete any recommendations that came from the drug/alcohol assessment, visit regularly, complete parenting classes, obtain sufficient income to support her children, keep DHS informed of her address and phone number, and follow recommendations about housing.

         Another review hearing was conducted in January 2016, and reunification remained the goal. MR and JR were not in the same foster placement because there were no foster homes to take both of them. DHS was found to have made reasonable efforts to provide reunification services. Krista had again partially complied by completing the drug/alcohol assessment and psychological evaluation, testing negative for drugs, obtaining housing, and cooperating with DHS. She was living with David Locklin, but he had a history of a true finding in a child-abuse investigation. If Krista intended to continue living with David, he was ordered to submit to a psychosexual evaluation and follow the recommendations of a therapist. Jessie was incarcerated and had made no contact with DHS in recent months. Both parents were ordered to comply with the case-plan directives.

         In April 2016, the first permanency-planning hearing was conducted. Krista was partially complying with the case plan and orders, making some measurable progress, and diligently working toward reunification. The trial court decided to continue the matter for approximately ninety days and advised Krista that she had to make significant, measurable progress during that time or the court would change the goal to adoption by authorizing a petition to terminate parental rights. Although she had completed many services, there remained concerns about the children's safety if placed in her custody, with emphasis on particular concerns about David, the man she was living with. Jessie was incarcerated, but the court ordered that he be brought to the next hearing. MR and JR were not placed together in foster care, although DHS was trying to make that happen.

         A second permanency-planning hearing was conducted in September 2016. Krista and Jessie were present. The goal was changed to adoption. The children were still not able to live in the same foster placement because JR was in therapeutic foster care. Evidence revealed that Krista's home was not appropriate for her children due to its condition, its lack of enough space, and its lack of interior doors. A psychological evaluation on David recommended that he have supervised contact with children and that he participate in a sexual-behaviors program. Jessie was noted to be in prison, where he had been for the entire case, and he did not have a definite parole date. Continued compliance with the case plan was ordered.

         DHS petitioned to terminate parental rights in November 2016, alleging three statutory grounds against Krista (twelve months out of custody and failure to remedy, subsequent other factors showing inability or indifference to remedy, and aggravated circumstances showing little likelihood of reunification with provision of more services). DHS asserted that Krista had chosen to reside with a sex offender, knowing that it presented a barrier to the safe return of her children. DHS alleged two statutory grounds against Jessie (sentenced to a period of time constituting a substantial period of juvenile's life and aggravated circumstances showing little likelihood of reunification with provision of more services). DHS alleged that Jessie had been incarcerated the entire case, having been convicted of commercial burglary (twenty-year sentence), arson (ten-year sentence with an additional six years suspended), and theft ...

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