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McLemore v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

January 31, 2018



          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 child.

          BART F. VIRDEN, JUDGE.

         The Pulaski County Circuit Court terminated the parental rights of appellant Tiffany McLemore to her child, L.S. (DOB: 8-16-2015).[1] McLemore argues on appeal that there was insufficient evidence of grounds to support termination and that the trial court erred in determining that termination was in L.S.'s best interest. We affirm.

         I. Procedural History

         On July 14, 2016, the Arkansas Department of Human Services (DHS) filed a petition for ex parte emergency custody and dependency-neglect as to L.S.[2] In an affidavit, family-service-worker specialist with DHS, Toni Hansberry, averred that DHS had first become involved with McLemore's family in September 2015 based on a report of maltreatment. An allegation of inadequate supervision and "substance misuse" was substantiated against McLemore. A hair-follicle test performed on L.S. indicated that she was positive for amphetamines, methamphetamine, and marijuana. McLemore admitted having used methamphetamine, Xanax, and Klonopin the week before the investigation. A protective-services case was opened, and DHS offered services, including worker visits to the home, random drug screens, individual counseling, referrals for parenting classes, a drug-and-alcohol assessment, and inpatient drug treatment.

         Hansberry stated in her affidavit that McLemore had participated in individual counseling; however, McLemore had failed to attend parenting classes, had not gone to any AA/NA meetings, and had been unavailable for random drug screens on multiple occasions. On April 27, 2016, Hansberry discovered that McLemore had been admitted to Recovery Centers of Arkansas (RCA) and that L.S. had been living with her maternal grandfather. The grandfather was instructed by DHS caseworkers not to permit McLemore to take the child. On May 24, 2016, Hansberry went to visit the grandfather's home to check on L.S. and learned that McLemore had been "kicked out" of rehab two weeks prior and had come and taken L.S.

         Hansberry further averred that she had attempted to contact McLemore to no avail in that McLemore had moved three times without informing DHS of her whereabouts, had not returned phone calls, and had several warrants out for her arrest. Hansberry thus sought the trial court's assistance in exercising a hold on L.S. to ensure her safety, noting that McLemore's drug use and instability put L.S. at substantial risk of harm. The petition alleged that L.S. was dependent-neglected based on neglect and parental unfitness. L.S. was eventually located and removed from McLemore's custody between July 25 and July 28, 2016.

         An ex parte order for emergency custody was entered, and the trial court later found that probable cause existed for issuance of the order based on McLemore's stipulation dated July 28, 2016. The stipulation provided that a protective-services case had been opened based on a true finding of inadequate supervision and substance misuse; that L.S. tested positive for drugs; that McLemore had been involuntarily discharged from inpatient drug treatment; and that the caseworker had not been able to locate McLemore to provide additional services.

         On August 24, 2016, L.S. was adjudicated dependent-neglected due to parental unfitness based on a similar stipulation by McLemore, which was attached to the order. McLemore stipulated that a hair-follicle drug screen on October 2, 2015, had revealed that L.S. was positive for methamphetamine and marijuana; that a protective-services case had been opened but that McLemore had failed to participate in services and failed to cooperate with DHS; and that McLemore had tested positive for methamphetamine, amphetamines, and methylenedioxymethamphetamine (MDMA or "ecstasy") on August 5, 2016. Another exhibit attached to the adjudication order was a lab follow-up from the results of L.S.'s October 2, 2015 drug screen. It was noted that the confirmation amount of methamphetamine was more than 360 times over the minimum amount needed to confirm the presence of methamphetamine-"so it was not a subtle exposure"-and that the marijuana level was eighteen times over the minimum cutoff level for confirmation testing.

         In the adjudication order, McLemore was ordered to visit L.S. and to cooperate with DHS. She was also ordered to, among other things, submit to a drug-and-alcohol assessment; enter a residential-treatment program for substance abuse, complete the program, and follow any recommendations; submit to random drug screens; and attend AA/NA meetings at least three times a week.

         A review order was entered on November 16, 2016, in which the trial court found that McLemore had not complied with the case plan and court orders because she had been incarcerated since August 24, 2016, and that DHS had made reasonable efforts to provide family services toward the case-plan goal of reunification. Another review order was entered on February 21, 2017, finding that McLemore had complied with the case plan and court orders to the extent possible due to her incarceration. Specifically, the trial court found that McLemore had appropriate visits with L.S., had participated in substance-abuse counseling, would soon begin parenting classes, and had started ...

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