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Donham v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

December 13, 2017

RHONDA ANN DONHAM APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40JV-16-43] HONORABLE EARNEST E. BROWN, JR., JUDGE

          Leah Lanford, 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 child.

          KENNETH S. HIXSON, JUDGE.

         Appellant Rhonda Donham appeals from an order placing permanent custody of her daughter with Danny and Helen Carrington. On appeal, she argues that there was insufficient evidence presented at the permanency-planning hearing to support an award of permanent custody to a third party. Rhonda alternatively argues that the trial court erred in declining to award her unsupervised visitation or set a visitation schedule. We affirm.

         This dependency case involves Rhonda Donham and her only child, fifteen-year-old R.D. Rhonda had custody of R.D.[1] A family-in-need-of-services case was opened in February 2016 at Rhonda's request. Rhonda was on a fixed income ($1700 per month in Social Security disability benefits) and asked for assistance with getting her water reconnected and having adequate food in the house. Arkansas Department of Human Services (DHS) provided supportive services to Rhonda to help with food and utilities and to assist with her budgeting skills.

         On August 8, 2016, emergency custody of the child was taken and R.D. was placed in the custody of Danny and Helen Carrington.[2] The emergency custody was based on Rhonda's failure to keep food in the home, failure to set up a budget with DHS, and failure to attend counseling. On August 12, 2016, DHS filed a petition for emergency custody and dependency-neglect, and the trial court entered an ex parte order for emergency custody on August 15, 2016. The trial court entered a probable-cause order on August 23, 2016.

         On October 11, 2016, the trial court entered an adjudication order of a dependent juvenile. In that order, the trial court found that R.D. was a dependent juvenile as defined by Arkansas Code Annotated section 9-27-303(17)(B) (Repl. 2015).[3] The trial court found that, despite receiving adequate income, Rhonda did not budget properly to provide for R.D., that the water was shut off for a period of time, and that there was not adequate food in the home. The trial court also found that Rhonda suffered from mental disorders for which she takes medication.[4] The trial court set the case goal as reunification.

         A review order was entered on January 23, 2017. In the review order, the trial court continued the case goal as reunification. The trial court found that Rhonda had partially complied with the case plan, maintained contact with R.D., maintained stable housing, and completed a psychological evaluation. However, Rhonda had refused to participate in budgeting-assistance services and had missed some counseling appointments.

         After a permanency-planning hearing held on March 27, 2017, the trial court entered a permanency-planning and permanent-custody order on April 21, 2017. In that order, the trial court found that the return of R.D. to the custody of her mother was contrary to the welfare of the child. In accordance with the best interest of the child, the trial court placed R.D. in the permanent custody of the Carringtons. The trial court found that Rhonda had not complied with the case plan or orders of the court in that she had failed to (1) attend two court-ordered psychological evaluations; (2) maintain stable housing; (3) maintain reliable transportation; (4) participate in individual counseling; (5) properly complete budgeting sheets; and (6) cooperate with DHS. The trial court further found that R.D. was fearful for her safety while in her mother's care, and that R.D. was "a different child than the one who initially entered DHS custody in that said juvenile is now well-adjusted, happy, and unafraid." The trial court ordered that Rhonda have no unsupervised contact with R.D., but stated that the Carringtons were willing to arrange, at their discretion, supervised visits between Rhonda and R.D. The order of permanent custody was to remain in effect until further orders of the court, and the matter was subject to being reopened for modification.

         Maxine Sterrate, the caseworker for this case, testified at the permanency-planning hearing. Ms. Sterrate stated that, despite DHS efforts, Rhonda had not been cooperative or compliant with the case plan. Ms. Sterrate indicated that one of Rhonda's problems was budgeting, and that she could never budget properly or comply with the budgeting plan. Ms. Sterrate further testified that Rhonda was bipolar and was no longer attending mental-health counseling sessions. Ms. Sterrate testified that Rhonda did have weekly supervised visits with R.D., but said that there was little communication during the visits. Ms. Sterrate also stated that during her home visits there was not much food in Rhonda's house. In Ms. Sterrate's opinion, R.D. could not be returned to Rhonda's custody at that time.

         Ms. Sterrate testified that R.D. was doing well, making good grades, and had no behavioral problems while in the Carringtons' custody. She stated that the Carringtons' home was clean and suitable and that they had received an approved home study. Ms. Sterrate stated that R.D. wished to remain with the Carringtons and that the Carringtons wanted permanent custody of her. Ms. Sterrate recommended that permanent custody be awarded to the Carringtons. With respect to Rhonda's visitation with R.D., she hoped it could be worked out between Rhonda and the Carringtons, but she did not think it should be unsupervised.

         Danny Carrington testified that he and his wife, Helen, wanted permanent custody of R.D. He stated that they were trying to help R.D. in any way they could, and he indicated that R.D. had become part of their family. If granted permanent custody, Mr. Carrington said he would not have any problem with Rhonda having visits if they were supervised. He thought that unsupervised visits with Rhonda might be unsafe.

         R.D. testified that she had been to court several times, that each time her testimony was that she did not wish to return home to her mother, and that was still true today. R.D. did not feel like her mother could adequately care for her at this time. R.D. stated that her life has changed dramatically since she has been with the Carringtons. She receives support she had never received before, and she enjoys having meals cooked for her, as well as being helped with school and extracurricular activities. R.D. stated that, when she was with her mother, she could not be a typical teenager, and she was always worried about whether the water would be disconnected or if they had enough food. However, in the Carringtons' care she no longer has such worries. Her life with her mother was stressful, and her life in her present placement is not. If the trial court granted permanent custody to the Carringtons, R.D. still wanted visitation with her mother, but she thought it would be good if the visits were supervised because she and her mother are known for conflict and do not have the best relationship.

         Rhonda testified on her own behalf, and she stated that she had been attending counseling and had been doing her best to budget her finances. However, Rhonda acknowledged that things had fallen apart financially for her and that her car had been repossessed. Rhonda stated that her house was for sale, and that if it sold she would move to an apartment. Rhonda thought she could adequately take care of R.D., and asked the trial court to send R.D. home with her. Rhonda testified that she suffers from bipolar schizophrenia and depression, and that when unmedicated she has hallucinations. She stated that she was diagnosed with mental-health conditions in 1998 and has been on medication ever since.

         On appeal from the trial court's order placing permanent custody of R.D. with the Carringtons, Rhonda argues that there was insufficient evidence that the custody placement was in the child's best interest. She further contends that the order must be reversed because the trial court did not explicitly find her to be unfit in its order. Rhonda cites Devine v. Martens, 371 Ark. 60, 263 S.W.3d 515 (2007), where the supreme court stated that the law prefers permanent custody with a parent over a third party unless the parent is proved to be incompetent or unfit. Finally, Rhonda argues that, even if we affirm the permanent placement with the Carringtons, the trial ...


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