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Walker v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

November 15, 2017

NASHIRA WALKER APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-17-186] HONORABLE STACEY ZIMMERMAN, JUDGE

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          KENNETH S. HIXSON, Judge

         Nashira Walker appeals after the Washington County Circuit Court filed an adjudication and disposition order finding her children, S.H. (M) (DOB 9-22-2011) and S.H. (F) (DOB 10-11-2013), dependent-neglected. On appeal, appellant argues that (1) the trial court erred in continuing custody of S.H. (M) and S.H. (F) with the Arkansas Department of Human Services (DHS) because DHS failed to prove that it made reasonable efforts to prevent the children's removal, and (2) the trial court erred in finding that returning custody of the children was contrary to the children's welfare and that continuing custody with DHS was in their best interests and necessary to protect their health and safety based on the evidence introduced at the adjudication hearing. We affirm.

         I. Facts

         DHS has had a long history of involvement with these children and appellant. A protective-services case was opened on August 9, 2016. At that time, DHS offered parenting classes and a bus pass to appellant to prevent removal of the children. On March 6, 2017, DHS filed a petition for dependency-neglect as to S.H. (M) and S.H. (F). In the attached affidavit, DHS alleged that appellant had not been in compliance with a protective-services case in that appellant had failed to complete twelve hours of parenting classes, obtain counseling, and undergo a psychological evaluation. DHS additionally outlined a series of physical-abuse claims with appellant listed as the alleged perpetrator dating back to 2006.

         Approximately a week later, DHS filed a petition for emergency custody and dependency-neglect. In the attached affidavit, DHS additionally alleged that during a March 3, 2017 home visit, appellant admitted that she had not attended parenting classes and that she had used marijuana and cocaine. DHS received yet another referral that appellant was physically abusing S.H. (M) with a deadly weapon on March 9, 2017. During the investigation of that referral, DHS observed a fresh cut on the back of S.H. (M)'s neck, and S.H. (M) stated that appellant had caused it. Appellant stated that she was unsure whether she had caused it, but she admitted that she could have "accidently" scratched him while she was helping him put on his clothes. Therefore, DHS placed a seventy-two-hour hold on the children. The trial court granted the ex parte petition for emergency custody, finding that probable cause existed for the removal, and the trial court subsequently filed a probable-cause order.

         An adjudication hearing was held on April 21, 2017. At the hearing, Miranda Collins testified that she was the family-service worker assigned to the case. Collins testified that she had personally seen scarring present on S.H. (M)'s body, and photographs depicting the scars and bruises were admitted into evidence. Collins further testified that appellant had admitted using cocaine and that she had a positive drug screen in March 2017. Collins indicated that she had concerns about returning custody of the children to appellant after there had been a "true finding" that appellant had physically abused S.H. (M), leading to the protective-services case being opened. Collins testified that the children had been referred to Children's House and that appellant was referred to complete twelve hours of parenting classes and given a bus pass. Collins explained that the purpose of the parenting classes is to help parents learn better parenting and discipline skills, including teaching safe and appropriate discipline techniques. However, appellant attended only two of the twelve scheduled classes. Collins opined that appellant's completion of the parenting classes could have prevented the children's removal. Collins further testified that the children had been doing very well both at home and in school since their removal. However, S.H. (M) still cries and becomes very upset on the way to the supervised visitations with appellant.

         Melissa Bedford, a licensed professional counselor, testified that she was seeing S.H. (M) and S.H. (F) for individual and family therapy. Bedford testified that S.H. (M) had been diagnosed with posttraumatic stress disorder; unspecified depressive disorder; child-psychological abuse, confirmed, subsequent encounter; child psychological abuse, confirmed, initial encounter; and parent-child relational problem. Bedford additionally testified that S.H. (F) had been diagnosed with posttraumatic stress disorder; unspecified disruptive-impulse-control-and-conduct disorder; child-physical abuse, suspected, initial encounter; child psychological abuse, confirmed, initial encounter; and child sexual abuse, suspected, initial encounter. S.H. (M) had disclosed to Bedford that he does not feel safe with appellant and that appellant had cut the back of his neck with a knife. S.H. (M) further disclosed to Bedford that appellant had hurt him but that he felt safe with his "new mom and new dad, " referring to his foster parents. Bedford testified that S.H. (F) was very closed off and that S.H. (F) had witnessed appellant physically abusing S.H. (M).

         Bedford testified that her personal interactions with appellant were disheartening. Bedford explained that appellant was very abrupt and that she would say very hurtful things in front of her children. For example, appellant told Bedford in front of her children that she did not think that S.H. (M) was a good human being. Therefore, Bedford recommended that the children continue to receive treatment and expressed severe concerns about the children being returned to appellant.

         Michelle Rodarte, a family advocate at Children's House, testified that she had worked closely with the family and the teachers since they had begun attending. Rodarte testified that the children had improved since their removal. S.H. (M) was receiving services at Dayspring Behavioral Health and receiving forty-five minutes of speech therapy and forty-five minutes of developmental instruction a week, and S.H. (F) was receiving services at Dayspring Behavioral Health and receiving forty-five minutes of developmental instruction. Since the children's removal, they had not missed a day of attendance. Before their removal, S.H. (F) had 75 percent attendance, and S.H. (M) had 78 percent attendance. Rodarte recommended that the children continue to attend Children's House.

         Appellant testified that she is thirty-seven years old; has a total of eight children and four grandchildren; is on disability; and has diabetes, high cholesterol, depression, and ADHD. She testified that although Collins had told her that she needed to go to parenting classes, she denied that Collins had provided any referrals or bus passes to her. Appellant admitted using cocaine to treat a toothache and that she had also used marijuana in the past, but she denied being a habitual drug user. Appellant further admitted that she had "whooped" S.H. (M) with a phone cord in 2014. However, appellant indicated that the pictures introduced into evidence of the scars and bruises were worse than the actual injuries. She further indicated that she did not know how he received the ...


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