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Johnston v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

November 15, 2017

KRISTINA JOHNSTON APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43JV-16-17] HONORABLE BARBARA ELMORE, JUDGE

          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.

          Jerald A. Sharum, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          BRANDON J. HARRISON, Judge

         Kristina Johnston appeals a permanency-planning-hearing order of the Lonoke County Circuit Court based on Ark. R. Civ. P. 54(b) and Ark. Sup. Ct. R. 6-9(a)(1)(B). This case presents a very close decision on the merits, but we are not left with a firm and definite conviction that a mistake was made. We therefore affirm the circuit court.

         I. Overview

         This case[1] began in February 2016 when Johnston was arrested for fraudulent use of a credit card, and her children D.J., L.J., and B.M. did not have a caregiver. Johnston stipulated that her three children were dependent-neglected in March 2016 "due to her parental unfitness, specifically the mother had inadequate housing." She was ordered to cooperate with the Arkansas Department of Human Services (DHS), follow the case plan, not use controlled substances, submit to random drug screens, undergo a drug-and-alcohol assessment and follow its recommendations, successfully complete a drug-treatment program, and submit to a hair-follicle test. In April 2016, in addition to the previous orders, the circuit court ordered Johnston to complete parenting classes, individual counseling and family counseling (if recommended by the children's therapist), maintain stable housing and employment, submit to a forensic psychological evaluation, attend visitations, and demonstrate improved parenting.

         Following a June 2016 review hearing, the court found that Johnston was in partial compliance but that she had "not proven stability. This must be done." Following an August 2016 review, the court wrote:

The mother is in partial compliance. She has attended counseling weekly, completed her drug and alcohol assessment, psychological evaluation and parenting classes. She needs to follow the recommendations of both the drug and alcohol assessment and the psychological evaluation. A copy of her psychological evaluation shall be provided to her therapist. The mother does not have stable housing or employment at this time. These children need stability.

         Notwithstanding the court's finding above, Johnston was ordered to participate in and complete parenting classes, individual counseling, family counseling (if recommended by the children's therapist), anger-management classes, random drug screens, remain drug free, complete drug-and-alcohol assessment (and follow any recommendations from it), attend outpatient drug treatment, attend AA/NA two times a week, maintain stable housing and employment, submit to a forensic evaluation, comply with the terms of case plan, cooperate with DHS, maintain contact with DHS, attend visitation, and demonstrate improved parenting.

         The circuit court reviewed the case again in November 2016, but it made no specific findings on Johnston's compliance with the court's previous order. In the November 2016 order, the court removed anger-management classes, family counseling, outpatient drug treatment, and AA/NA attendance from its requirements of Johnston.

         The court conducted a hearing in March 2017 to determine a permanency plan for the children.

         II. March 2017 Permanency-Planning-Hearing Testimony

         DHS caseworker Sharese Handie testified during the permanency-planning hearing that she had been assigned the case since September 2016, and that, from that time, Johnston had four different short-term living arrangements. Caseworker Handie said that she had visited the trailer home Johnston obtained in February 2017, approximately a month before the hearing, and that it was appropriate. According to Handie, DHS did not consider Johnston to have stable housing because she had the trailer only for a month. When asked if she knew whether Johnston had income "at this time, " Handie answered, "She doesn't." Yet when asked if Johnston "had employment throughout the case, " Handie replied, "She has."

         Handie further testified that Johnston had completed her psychological evaluation in June 2016 and had followed up on the recommendations. Johnston also finished a drug-and-alcohol assessment and was referred to outpatient drug-and-alcohol treatment, which she completed. Johnston also completed parenting classes. She had been visiting the children twice a week but had recently missed because of the flu. Johnston had started a new round of counseling, but Handie didn't know the reason. When asked to explain why Johnston had not made substantial measurable progress, she replied, "Because she just got another home, and that's unstable housing. She still doesn't have a job." According to Handie, those were the same issues that started the case.

         Handie also testified that Johnston had just texted her that she had gotten married a few days before the permanency-planning hearing. Handie had not had the opportunity to do a background check on the person Johnston had married, and that caused her concern. Handie agreed that Johnston "has diligently worked towards reunifying with the children" but it would take Johnston another "six months to a year" to get stable enough for the children to return to her.

         On cross-examination, Handie admitted that she did not know the name of Johnston's therapist but was aware that the target completion date for the therapy was 17 April 2017. She also admitted several inaccuracies in her court report, including that it was inaccurate because it did not show that Johnston had completed outpatient therapy. Handie maintained that Johnston did not have stable housing because she had just moved in. She conceded that Johnston could complete her counseling and the three additional parenting classes the court ordered within three months.

         DHS called Johnston as a witness. Johnston testified that her husband is Chad Buckner and admitted that he is a felon. She said that they had permission from their probation officers to marry and that they chose to get married because they had been best friends for two years. DHS asked Johnston many questions about her housing throughout the case. The testimony is not entirely clear but it appears that Johnston was homeless for a while, that she lived in Sherwood for four months, that she lived in a place in Ward that had bed bugs, and that she has a trailer home at her current address in Cabot.

         Johnston testified that she has babysitting jobs and sold things online stating, "I know that's not considered a job to the courts, I guess, but I have made plenty of money to support my family. And I have a savings account that I've saved up. . . . I've been saving every penny I've had while I was homeless." When asked about her new husband Chad, she said that he has a felony conviction for theft by receiving in 2014 and spent six months in jail. She also testified that she fraudulently used a credit card and got a $500 fine and a day of community service. There was also some questioning related to a misdemeanor terroristic-threatening charge, for which Johnston said she received one year probation and a large fine, which had been paid off and the probation "dismissed."

         DHS then questioned Johnston about her health. She testified that she takes Cymbalta for depression, irritable bowel, and fibromyalgia. She also takes gabapentin, oxycodone, and tizanidine for pain and Klonopin for severe anxiety. She said that she does not take the medications when she needs to drive and that she has a husband who can drive.

         She testified that she needs $1, 440 a month to pay all bills and that she has an additional $1, 060 leftover each month to use for the children. When asked about "being homeless for a lot of the case was not making it appropriately, correct?, " she replied, "No, but I was trying to save enough money to be able to come up here and tell you I have money." She thought her children could come home "today" even though the children had been out of her care for over twelve months.

         When DHS asked Johnston about "the grandmother" having custody of B.M., she expressed concern that all three of the grandmother's children had "been in trouble with the law, " that the eldest daughter is a felon, and that B.M. told her during visitation that her "Nana and PaPa cussed in front of her and scream a lot." She expressed that "I would rather [B.M.] come home to me where she belongs and where she wants" but conceded that if the only choice were between B.M.'s grandmother or a stranger, she would choose the grandmother. As far as L.J., Johnston testified that she preferred a "Christian foster home" if given the choice between her current placement with an aunt and uncle and a stranger and that she wanted L.J. "out of that home." Related to D.J., she said that he had a "great Christian family" and that she wished there were more openings in that home.

         On cross-examination by the attorney ad litem, Johnston stated that she had been charged with obstructing government operations and resisting arrest but that those charges had been dismissed. She also admitted to a felony theft-of-property conviction from 2014 (before this case started). She stated that she had switched primary-care providers because the judge wanted her to, that she was also being treated at Arkansas Pain Management, and that her disability application was pending.

         On cross-examination by her counsel, Johnston testified about the six-month lease on the home where she currently resided. The lease was entered into evidence. She clarified that she had no pending criminal issues, that she had completed her outpatient treatment, and that she had completed one round of parenting classes and had three classes left on the second round of parenting classes. She testified about what she had learned from the parenting classes and that she had missed only one visit with her children because of a bowel obstruction yet had made it to recent visits despite having the flu. She said that the counseling had been beneficial. On further cross- and recross examination it appeared that Johnston had seen many different therapists in the case.

         Chad Buckner, Johnston's husband, testified that before the marriage he lived with his parents. He said that he had never been involved in a DHS case before, had no true findings on the child-maltreatment list, and had visitation with his son from a previous marriage. He testified that he was on probation for four years for theft by receiving but would complete probation in November. He said that Johnston would make $150 to $200 from selling things on Facebook and that she made more than him some days. When asked what would happen if she ran out of things to sell, he said that she had applied for disability and he has a friend who is a manager at Domino's Pizza. He said that he graduated high school with Johnston, that they had not seen each other for a long time, that they are best friends, and that he proposed about two weeks before they got married. Before that, he had a relationship with Johnston and her children and had provided money to Johnston. He denied illegal drug use except as a teenager and was willing to undergo a drug screen and a hair-follicle test.

         Brett Collins testified for DHS. He said that all three children had been placed with him and his wife (Johnston's sister Lindsey) at the beginning of the case. He said that the children were doing "fairly well" but that there was a lot of resentment and discontent. In his view, D.J. was being deceitful by contacting his mom (Johnston), that things boiled over at a staffing, and he thought it best that D.J. move to a new home, which he did. Things with L.J. had been smoother once she realized that the Collinses were not "the monsters that we were made out to be" but that B.M. still has "outbursts." Collins thought B.M. might do better ...


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