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Horton v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

November 15, 2017



          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          Virden and Klappenbach, JJ., agree.


         Appellant appeals from the termination of her parental rights to E.H., born 09/01/2015.[1] On appeal, she argues that the circuit court erred in (1) terminating her parental rights based on the failure-to-remedy ground, (2) finding that DHS had shown the subsequent-factor ground, and (3) denying her motion for a second psychological evaluation as untimely. We affirm.

         I. Facts

         The hotline was called on October 7, 2015, due to concerns that E.H. was not being fed properly. According to family service worker (FSW) Laura Case, appellant could explain how to mix E.H.'s formula, but "could not do it in practice." Appellant reported that she fed E.H. four ounces of formula every two hours, which was appropriate. However, FSW Jennifer Williams reported "major concerns" regarding whether E.H. was being properly fed because she was being weighed regularly with no weight gain.

         Dr. Sara Robinson admitted E.H. to the hospital on October 14, 2015, for failure to thrive due to not being fed properly; she wanted to observe appellant feeding E.H. and wanted E.H. to be weighed daily.[2] There was "concern for [appellant's] mental capacity as it relates to her ability to care for E.H." Appellant was "on SSI for learning disabilities" that reportedly affected her ability to read and write. A seventy-two-hour hold was taken on E.H. on October 14, 2015, due to her failure-to-thrive diagnosis. Appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on October 19, 2015, which was granted by the circuit court's ex parte order for emergency custody entered on the same date.

         A probable-cause order was entered on October 21, 2015, finding probable cause that emergency conditions existed that necessitated E.H.'s removal and that those conditions continued. In its December 8, 2015 adjudication and disposition order, the circuit court adjudicated E.H. dependent-neglected "as defined in the Arkansas Juvenile Code" and made specific findings. Appellant was ordered to complete a number of standard duties, including submitting to a psychological evaluation and following any recommendations. DHS was ordered to provide "specialized parenting classes to [appellant] to focus on raising a baby." Tammy Tolleson, appellant's mother, was added to the case plan "since [appellant] lives with her and [Tolleson] participated in caretaking for [E.H.] before the hold was taken." The goal of the case was reunification.

         In its February 24, 2016 and August 12, 2016 review orders, the goal of the case remained reunification. In the latter review order, the circuit court found:

That [appellant] has complied with the caseplan in that she has submitted to a psychological evaluation, completed specialized parenting classes and attended counseling. The psychological evaluation determined that [appellant] is functionally illiterate, that she cannot live independently and requires supervision of her child care. The maternal grandmother has agreed to act as a supervisor of [appellant's] child care[.]

         DHS agreed to allow appellant to have visitation with E.H. "during the week, with the child to return to the foster home on weekends." The circuit court gave DHS the authority to begin a trial placement if the visitation went well.

         On December 6, 2016, appellant filed a motion for a second psychological evaluation and a motion for a continuance. She requested that a second and independent psychological evaluation be performed as a reasonable accommodation pursuant to the Americans with Disabilities Act.[3] She asserted that the first psychological evaluation had been completed before she submitted to services and provided "little flexibility for [appellant] and DHS to achieve a form of reunification." She asserted that it would be prejudicial to her to use only the initial psychological examination "[g]iven that [she] has submitted to services; given that she is a disabled individual entitled to a reasonable accommodation pursuant to the ADA; and given that the State has a policy that mental incapacity is a basis for termination of parental rights."

         On December 8, 2016, DHS filed a petition for termination of appellant's parental rights, citing two grounds. The first ground was failure to remedy the cause for removal.[4]DHS stated that "[a]lthough [appellant] completed the tasks in the case plan, she ha[d] not successfully utilized the skills she learned the parenting classes, counseling or from homemaker services." It also noted that E.H. had a "continuous problem" with diaper rash that was "constant and worsening" and that appellant gave incorrect instructions on the application of the prescription provided for the rash, after DHS suggested-and she went- to the doctor. DHS's second asserted ground was the other-factors ground.[5] It went on to state that during the trial home placement, appellant "did not provide the most basic care for her child resulting in circumstances that were contrary to the juvenile's health, safety or welfare."

         On December 9, 2016, the circuit court entered its permanency-planning order in which it changed the goal of the case plan to adoption. It noted testimony from Nancy Mondragon, employed by First Kids Daycare, that (1) E.H. would be brought to daycare "dirty"; (2) E.H. would "exude an odor" requiring workers to "wipe down her whole body with baby wipes"; and (3) appellant would bring bottles of "regular milk"-before E.H. turned one-in a bottle that would be "dirty and crusted with milk." Mondragon stated that workers had spoken with appellant "several times about the cleanliness of the bottle and the fact that they could not give a child regular milk before the child's first birthday, " yet appellant "continued to bring a dirty bottle with regular milk." The circuit court found Mondragon's testimony "very credible."

         It also noted testimony from FSW Carol Harp that appellant had complied with the case plan and court orders, leading to a trial home placement, but E.H. was removed from the placement on September 23, 2016. She noted visiting appellant's home on that day- which was "very hot"-and seeing various safety hazards including a fan without a cover blowing on E.H. Appellant had claimed that the cover was only missing because she had washed it and it was drying, but FSW Bridget Warren had reported seeing the same safety hazard during her visit the previous day. Appellant had obtained a prescription-strength diaper cream for E.H. and had advised daycare workers-and stated to Harp-that it was to be applied at "every" diaper change, but the bottle said twice per day. Furthermore, she testified that appellant intended to give E.H. baby Orajel without consulting doctor, though the box advised not doing so for a child under two; and that she was concerned about Tolleson's ability to supervise appellant's parenting because Tolleson has a prescription for and was taking "multiple hydrocodone pills per day."[6]

         In the permanency-planning order, the circuit court found that appellant had complied with the case plan and its orders, stating specifically that she had done "everything" DHS or the circuit court had asked her to do, but went on to state:

[E.H.] is not safe with her at this time. [Appellant] does not understand when medication should be administered. She is either not bathing [E.H.] or not bathing her properly. She was not properly cleaning the bottle she was taking to day care. She either does not understand or is ambivalent to the fact that piles of clothing, a very hot home, electrical wires, and exposed fan blades could be dangerous to a baby.

         Despite these findings, and its order setting a termination hearing, it ordered DHS to continue to offer reunification services to appellant, "including looking for someone or some institution that would appropriately supervise [appellant's] parenting." It maintained that it was "very concerned about the condition of the home[.]"

         DHS responded in opposition to appellant's motions for a second psychological evaluation and for a continuance on December 12, 2016, asserting that appellant's requests had "no basis on law or in fact, " specifically arguing that "to the extent that [appellant] attempts to characterize her request for a continuance as reasonable accommodation, a second psychological examination is not a "reasonable accommodation as contemplated by the ADA" since appellant "ha[d] not argued that a second psychological evaluation would allow her meaningful access to services" and did not list any services that should be offered. DHS denied that the initial psychological evaluation limited its flexibility, but averred that DHS used the recommendations therein to develop further services for appellant, which it detailed therein.

         A status hearing was held on December 13, 2016, initially scheduled for purposes not pertinent to this appeal; however, the circuit court addressed appellant's motions at the start of the hearing. Appellant argued that she was entitled to reasonable accommodations under the ADA and that she was seeking a second psychological evaluation because she did not have the "financial ability or the resources to provide [one] for herself in her defense." She argued that a statement in the initial evaluation that appellant "cannot parent the child alone" was a limit that DHS relied on in providing services, visitation, and trial home placement to appellant. In pertinent and nonduplicative part, DHS argued that the motions were untimely; the ad litem agreed. From the bench, the circuit court made the following findings:

Well, I tend to agree with [DHS] and the ad litem. I think one thing we're forgetting is about permanency for this child. We're now, the best I can tell, this case was filed October 19, 2015. The child would've been taken a few days prior to that. We're almost now 14 months into this case. The psychological that we're talking about, as Mr. Landon said, was November 2015. I appreciate Ms. Standridge and she's vigorously representing her client, but I don't think it's timely. It's filed about 13 months after the psychological. I think [DHS]-I'm certainly not-made up my mind what I would do on the termination hearing, but [DHS], I assume, is still continuing to provide services to the mother as I've ordered and they'll do so. And I don't know that there's any prejudice under the ADA. I'd have to consider the best interest of this child and this child deserves permanency. So I am going to deny your motion. I don't know if a second psychological would not say the same as the first. I don't know. I don't think it's timely[.]

         The termination-of-parental-rights hearing was held on January 10, 2017. Where not duplicative of facts already given, pertinent testimony was as follows.

         Dr. Robert Spray, Jr., testified that he conducted appellant's psychological evaluation. He diagnosed her with intellectual disability-based on her "low level of cognitive functioning"-and unspecified anxiety disorder-due to his inability to tell the nature of her self-reported "ongoing chronic anxiety." He stated that appellant's "ability to independently care for herself in that the low intellectual functioning in and of itself by itself does not suggest a problem[, ]" but appellant "has some difficulty in carrying out"; "she could give strategies for doing things but she couldn't explain how she could carry those strategies out in situations." He recommended counseling as far as her ability to improve and understood that appellant had some parenting classes, but he stated that "there was no way for him to know based on [that] what the outcome would be."

         As far as parenting E.H., Dr. Spray recommended that appellant "would need supervision by a competent adult living in the home" and he did not know for how long into the future. The supervising adult would have to be "competent and capable and be able to see to the child, because that adult will have to be as much of a caretaker" as appellant.[7] He would have concerns for E.H.'s safety if she was returned to appellant without adult supervision, including, but not limited to (1) appellant being able to pay attention consistently to what was going on with the child and what the child was doing, (2) issues with dosing medications because appellant has low math and verbal reasoning skills, and (3) appellant's anxiety disorder, which he did not know the status of treatment for, but which "would play a role in being able to pay attention enough to [E.H.]" He believed appellant would know what a danger was, but would "maybe have difficulty following through with any plans that she would have to protect the child."

         Dr. Spray did not have enough information available to him to give a prognosis for appellant in being able to improve to the point where she could independently care for her child. He stated that a second psychological evaluation "would not provide better insight as to whether she benefited from services" because the "issue is parenting and the parenting part of the evaluation was difficult" because of appellant's low cognitive functioning. However, he admitted that "[i]t's possible, [he] guess[ed]" that if appellant could comprehend and improve through more education and training, the psychological evaluation "might" be different, but the "only way to know that is, in fact, a second psychological evaluation is conducted."

         Mondragon testified that appellant or Tolleson would bring E.H. into daycare dirty "almost daily." E.H. had dirt under her fingernails which "wasn't normal for a child [E.H.'s] age"; she was not walking. She noted that when the facility told appellant it could not give whole milk to a child under one-year old, appellant "was bringing her own cup with whole milk" because she "thought if she brought the whole milk that would be okay." She testified that she "never thought it necessary to call DHS or the hotline that [sic] E.H. wasn't being cared for"; she was "never concerned that [E.H.] was unsafe in [appellant's] home." However, she admitted that the problems seen at the facility "were there since [they] started seeing E.H." and they "lasted quite a while."

         Holly Laird testified that appellant was bringing E.H. in for weight checks with the WIC program, which gives parents information on how to feed their baby for the first year of life. Though she was concerned about E.H., who was "very underweight, " she did not make a hotline call. The program was not sure if there was a medical issue or ...

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