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Elliott v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

December 6, 2017

LORI ELLIOTT APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-15-757] HONORABLE STACEY ZIMMERMAN, JUDGE.

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          LARRYD. VAUGHT, JUDGE.

         Lori Elliott appeals the Washington County Circuit Court's permanency-planning order changing the goal of her dependency-neglect case from reunification to termination and adoption and the court's subsequent order terminating her parental rights to her three children, A.G., C.G., and K.G. We affirm both orders.

         In September 2015, the Arkansas Department of Human Services (DHS) exercised an emergency seventy-two-hour hold on Elliott's three youngest children[1] after receiving a call alleging that they had been physically abused by Lori's boyfriend, Jerry Glass. The children had bruises and reported physical abuse, and the affidavit of facts attached to the petition indicated that Lori denied the abuse, blamed the children, and was unlikely to protect them from future abuse. Lori's daughter K.G. also revealed that, when Lori was working nights, K.G. and Jerry Glass slept in the same bed.[2] In its order awarding DHS emergency custody, the court noted that DHS had been involved with the family and had provided services since 2007. On DHS's recommendation, the children were immediately placed in the custody of their maternal grandparents, Robert and Margaret Elliott.

         Once it was discovered that the children's father, Rocky Graham, was a member of the Cherokee Nation, and that the children were therefore eligible to become members of the tribe, a Cherokee representative intervened in the case, and it proceeded under the federal Indian Child Welfare Act (ICWA).

         As the case progressed, A.G. was placed with her sister, Katherine Lammers, who is one of Lori's three adult children. K.G. and C.G. remained with their maternal grandparents through the permanency-planning hearing, but Robert Elliott testified that he and his wife were "too old" to adopt any of the children. Instead, at the time of the permanency-planning hearing, DHS was looking into placing the two youngest children with other relatives.

         The evidence at the permanency-planning hearing revealed that, although Lori had been working the case plan and her counselor had testified that she no longer had any concerns that Lori would not protect her children, a DHS caseworker, the Cherokee Nation representative, and Lori's father all expressed serious concerns about Lori's current truthfulness regarding her relationships with men and her ability to protect her children. They testified that they were concerned that Lori was continuing a long pattern of relationships with inappropriate men, some of whom had previously harmed her children, and that she would continue to prioritize these relationships over her children's well-being. Specifically, they noted that a week before the hearing Lori was dishonest and evasive about her current romantic relationships with two men, stating that they were only "friends" but then later describing the sexual dysfunction of one of these men and the fact that she regularly spent the night at their houses when she was too tired to drive home from work. The tribe representative, Nicole Alison, also testified that Lori had become extremely angry and had yelled at her over the phone for almost an hour upon learning that the tribe's recommendation was to change the case goal to termination of parental rights and adoption. Lori testified that she was not romantically involved with any men, had learned a lot through counseling, and believed that she could now protect her children. Following the hearing, the court changed the case goal from reunification to termination and adoption.

         DHS then filed a motion for termination of parental rights on January 10, 2017. A few months later (but before the termination hearing), the court entered an amended adjudication order that contained the findings required under the ICWA (which the court had not known was applicable when the first adjudication order was entered approximately seventeen months earlier). Two days later, the termination hearing was held, and the evidence presented was substantially the same as at the permanency-planning hearing. Following the hearing, the court entered an order terminating Lori's parental rights, finding beyond a reasonable doubt (pursuant to the ICWA) that returning the children to Lori would put them at a serious risk of emotional or physical harm, that termination was in their best interest, and that termination was appropriate under two statutory grounds: failure to remedy the conditions causing removal and other subsequent factors.[3] Lori filed a timely notice of appeal, designating both the termination order and the permanency-planning order.

         We review findings in dependency-neglect proceedings de novo, but the trial court's findings will not be reversed unless the findings are clearly erroneous.[4] Adkins v. Ark. Dep't of Human Servs., 2017 Ark.App. 229, at 5, 518 S.W.3d 746, 750 (citing Ellis v. Ark. Dep't of Human Servs., 2016 Ark. 441, 505 S.W.3d 678). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); Hopkins v. Ark. Dep't of Human Servs., 79 Ark.App. 1, 83 S.W.3d 418 (2002).

         This case is governed by the Indian Child Welfare Act of 1978, codified at 25 U.S.C. sections 1901 through 1963. The ICWA was enacted to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" and provides "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." Allen v. Ark. Dep't of Human Servs., 2010 Ark.App. 608, at 8, 377 S.W.3d 491, 496 (citing 25 U.S.C. § 1902). The ICWA provides that no termination of parental rights may be ordered in the absence of a determination, supported by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. Id. at 8, 377 S.W.3d at 496. The "beyond a reasonable doubt" burden required by the ICWA is more stringent than the one imposed by the Arkansas Code. Id.

         Lori's first point on appeal is that the court erred in changing the case goal from reunification to termination and adoption at the permanency-planning stage.[5] Specifically, she argues that the court should have considered relative placement as a preference over termination and adoption when the evidence showed that the children were currently living with relatives. Lori relies on Cranford v. Arkansas Department of Human Services, 2011 Ark.App. 211, 378 S.W.3d 851, in which we reversed the termination of both parents' rights because the child had already achieved permanency in the custody of maternal grandparents and there was specific evidence that continued contact and visitation with the parents was in the child's best interest. In Cranford, we acknowledged the important need for stability, certainty, and permanency in a child's life and recognized that the continued uncertainty of languishing in the foster-care system is potentially harmful to children, but we noted that the child in Cranford was, had been, and would continue to be in the permanent custody of his grandparents, who were willing to adopt him. We specifically noted that termination did not provide additional stability and permanency for the child in Cranford because he would remain with his grandparents regardless of whether the court terminated his father's parental rights. Moreover, in Cranf ...


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