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Benson v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

January 31, 2018

CAROLYN JADE BENSON APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV-16-963] HONORABLE WILEY A. BRANTON, JR., JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Anna Imbeau, Office of Chief Counsel, for appellee.

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

          DAVID M. GLOVER, Judge

         Carolyn Benson appeals the Pulaski County Circuit Court's order terminating her parental rights to her son, T.M., who was born on March 24, 2015.[1] On appeal, Benson argues this decision was in error because the Arkansas Department of Human Services (DHS) failed to prove it was in T.M.'s best interest for her parental rights to be terminated. Specifically, Benson contends it was error to find T.M. would suffer potential harm if returned to her custody. We affirm the termination.

         DHS filed a petition for ex parte emergency custody on August 17, 2016. According to the affidavit attached to the petition, Benson was incarcerated in the Drew County Detention Center awaiting transfer to a Regional Punishment Facility to serve a nine- month sentence; T.M. had been living with Benson's mother, Jerry Benson, during Benson's incarceration until Jerry Benson passed away; and Benson's sister, Abigail Benson, began to care for T.M. after Jerry Benson's death. DHS became involved on August 14, 2016, when the Little Rock Police Department called for assistance after receiving a call from Michael Grimmer, a level 3 sex offender, who advised the police he needed assistance because "dead kids" were in his home. DHS found Grimmer, Wesley Benson (T.M.'s uncle), and sixteen-month-old T.M. in the home. Grimmer and Wesley Benson appeared to be under the influence of intoxicants and unable to care for T.M., who had what appeared to be a cigarette burn on the back of his hand allegedly caused by Wesley Benson. Grimmer advised the officers that Wesley Benson was keeping T.M. for his sister, who was in prison. Grimmer was concerned about T.M.'s safety because Wesley Benson took a lot of pills, drank, and smoked around T.M. The officers found a pack of diapers, but no baby food or baby clothing; the clothes T.M. was wearing were dirty; and T.M. had black dirt in the creases of his neck. DHS removed T.M. due to the living conditions and the lack of a person who could properly care for him. Abigail Benson contacted DHS on August 15, 2016, stating T.M. had been with Wesley Benson for only one day, and she had planned to pick T.M. up from Wesley Benson the following day.

         An ex parte order of emergency custody was entered the same day. That order noted Benson's prior contact with DHS in October 2013 in Chicot County for allegations of newborn illegal-substance exposure concerning another child of Benson's, A.M.; that case concluded with the termination of Benson's parental rights and A.M.'s adoption.

         Benson was present at the probable-cause hearing held on August 23, 2016. In an order entered September 9, 2016, the circuit court found probable cause to continue T.M. in DHS custody. The order again referenced the termination of Benson's parental rights to A.M. and the fact Benson was currently incarcerated.

         Benson was not present at the adjudication hearing held on October 6, 2016, due to the failure to file a transport order to have her brought to court. The circuit court adjudicated T.M. dependent-neglected in an order filed October 31 and continued his custody with DHS, but left reunification as the goal of the case. The circuit court again made reference to the prior termination of Benson's parental rights and noted Benson remained incarcerated.

         In a permanency-planning order filed February 3, 2017, the circuit court changed the goal of the case from reunification to termination of parental rights, finding T.M. had been subjected to aggravated circumstances because it was unlikely any services to the family would result in successful reunification within a reasonable period of time as measured from the child's perspective and consistent with his developmental needs. In making this decision, the circuit court relied on the fact Benson had been incarcerated since June 2016; she was currently serving a six-year sentence in the Arkansas Department of Correction (ADC), with a transfer eligibility date of July 2017; and even if she were released at that time, she would still need six to nine months to receive services and demonstrate to the court she is a fit and appropriate parent. The circuit court noted Benson asserted that the termination of her parental rights in A.M.'s case was a voluntary surrender. The circuit court stated termination of parental rights in the present case was not a foregone conclusion and ordered that if Benson was released prior to the next hearing, she was to contact DHS so that services could be provided to her. The circuit court denied Benson's request for T.M. to visit her while she was incarcerated, finding it was not in T.M.'s best interest due to his age and his not knowing Benson.

         DHS filed a petition to terminate Benson's parental rights on February 27, 2017. The grounds alleged by DHS for termination were Benson had previously had her parental rights involuntarily terminated as to T.M.'s sibling; subsequent factors; aggravated circumstances; abandonment; and Benson had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of T.M.'s life. After a hearing, the circuit court terminated Benson's parental rights to T.M. in an order filed May 4, 2017, finding DHS had proved all grounds for termination against Benson except the abandonment ground, which it dismissed, and that it was in T.M.'s best interest for Benson's parental rights to be terminated.

         At the termination hearing, Treasure Golden, the DHS caseworker, testified she was asking the circuit court to terminate Benson's parental rights because Benson had been incarcerated not only the entire time T.M. had been in foster care, but even before T.M. entered foster care; Benson had no contact with T.M. during the case; Benson had been unable to participate in any court-ordered services; Benson was still incarcerated at the time of the termination hearing; T.M. needed permanency and a stable life; the circuit court had made a finding of aggravated circumstances; there had been a previous involuntary termination of Benson's parental rights to another child; and Benson had been sentenced in a criminal proceeding for a period of time that constituted a substantial period of T.M.'s life. Golden said T.M., who was two at the time of the termination hearing, was doing well and was playing with other children more. Golden stated she had had no correspondence with Benson other than court hearings and a letter from Benson's attorney.

         Angela Brown, an adoption specialist, testified that based on T.M.'s race, age, and medical history, he is adoptable. She stated there were 585 matches to families interested in ...


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