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Whitaker v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

January 31, 2018



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

          Huffman Butler, PLLC, by: Brian A. Butler, for appellant Martin Ramirez.

          Mary Goff, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          BRANDON J. HARRISON, Judge

         Natasha Whitaker and Martin Ramirez appeal the termination of their parental rights to their three children, L.R., A.R., and J.R. Whitaker also appeals the termination of her parental rights to her child C.W. Whitaker challenges the statutory grounds for termination as well as the circuit court's finding that termination of her parental rights was in the children's best interest; Ramirez challenges the statutory grounds for termination and asserts that the Arkansas Department of Human Services (DHS) failed to provide services to him in a timely manner. We affirm.

         On 15 January 2016, DHS filed a petition for ex parte emergency custody of nine-year-old C.W., five-year-old J.R., three-year-old A.R., and one-year-old L.R. The accompanying affidavit explained that on January 10, the hotline had received a report that Whitaker was smoking methamphetamine around the children and keeping drug paraphernalia under the children's beds. The report also stated that the children were often hit in the head, that Whitaker had previously lost custody of her children due to drug abuse, and that Whitaker had no milk or diapers for the baby. After locating the family, a family service worker (FSW) spoke to Whitaker on January 13, and Whitaker denied abusing or neglecting the children. Whitaker stated that she received Social Security income due to epilepsy, that she smoked marijuana off and on, and that she had recently had too much to drink and smoked methamphetamine. Whitaker also told the FSW that she was bipolar but had not taken her medication in two weeks. Whitaker submitted to a drug screen and was positive for methamphetamine, amphetamines, marijuana, benzos, and oxycodone. The FSW also spoke to Ramirez, who stated that the children were not abused but that Whitaker needed help. He was asked to submit to a drug screen but was unable to provide a urine sample, even after drinking several glasses of water.

         DHS placed a hold on the children on January 13 based on concerns of inadequate supervision. The affidavit noted that Whitaker's drug use, coupled with her bipolar diagnosis and failure to take her medication, created a substantial risk of harm to the children. The affidavit also noted a lengthy history with DHS dating back to 1998, including a true finding of newborn illegal exposure in 2006 and a true finding of inadequate supervision in 2012.

         The court entered an order for emergency custody on January 15, and on February 8, entered a probable-cause order that found "by stipulation of the parties that there is probable cause that the emergency conditions which necessitated removal of the juveniles from the mother continue so that it is necessary that the juveniles continue in the custody of [DHS]." Whitaker and Ramirez were granted supervised visitation and ordered to submit to random drug-and-alcohol screens. The court also ordered that the children be drug screened as soon as possible.

         On April 5, the circuit court adjudicated the children dependent-neglected by stipulation of the parties. The court also noted that the children's drug screens had revealed that three of the four children tested positive for methamphetamine and/or amphetamine based on a hair-follicle test and that recent treatment for lice may have caused the fourth child to not test positive. Whitaker claimed that the children may have been exposed to a neighbor's use of methamphetamine, but the court found that she was responsible for her children testing positive. The court also noted that Ramirez had tested positive for methamphetamine and had been left alone with the children. The court found that both C.W. and J.R. had been born with drugs in their systems (cocaine and opiates, respectively) and that Whitaker had received services both times and should have learned how not to expose her children to drugs.

         The court also found that the children had been subjected to aggravated circumstances within both meanings of the term: (1) the children had been subjected to extreme risk of harm due to drug exposure, and (2) it was unlikely that services to the family would result in successful reunification within a reasonable period of time. Despite this finding and the additional finding that Whitaker had an outstanding warrant from Lonoke County, the court set the goal as reunification and ordered DHS to provide reunification services. The court noted that based on its aggravated-circumstances finding, it was not required to wait a full year before changing the goal to termination; the court found "the parents must step up quickly and properly to correct the barriers to reunification." Both parents were ordered to submit to a psychological evaluation and follow recommendations, attend individual counseling, submit to a drug-and-alcohol assessment and follow recommendations, submit to random drug-and-alcohol screens, and resolve any outstanding legal issues.

         On July 8, the court entered a permanency-planning order that continued the goal of the case as reunification. The order noted that the parents had made an effort to comply with court orders but that Whitaker had tested positive for opiates, benzos, and Oxycontin on April 18 and positive for oxycontin on June 17.

         On December 2, the court entered a second permanency-planning order that authorized the filing of a petition for termination of parental rights after finding that no material progress had been made toward the goal of reunification. The court found that Whitaker lacked any credibility, that she had lied several times while testifying, and that she had tested positive for amphetamine and also refused two drug screens in September 2016. The court described Whitaker as "low functioning" and "not a very good liar." The court also noted that Ramirez had tested positive for amphetamine and methamphetamine on July 25 and that drug abuse was an "ongoing issue." The court ordered that both parents be drug screened before leaving court, that they submit to at least two random drug screens each month, and that they be referred to drug rehabilitation. The court also reiterated that Ramirez must submit to a psychological evaluation.

         Also on December 2, DHS petitioned for termination of the parental rights of Whitaker and Ramirez. The petition alleged failure to remedy (custodial parent) as to Whitaker and failure to remedy (noncustodial parent) as to Ramirez. The petition also alleged the subsequent-factors ground and aggravated-circumstances ground as to both parents. However, after a hearing on 17 January 2017, the circuit court dismissed the petition because a Spanish-language interpreter had not been provided for Ramirez's psychological evaluation. In its February 8 order, the court found:

The court does not know whether there are compelling reasons not to terminate Mr. Ramirez's parental rights, but does not do so at this time due to concerns about services to Mr. Ramirez. The Agency should have provide[d] a Spanish-language interpreter for Mr. Ramirez's psychological evaluation. Although there was sufficient proof to terminate the mother's parental rights, the court did not consider doing so solely because she and Mr. Ramirez reportedly continue to be in a relationship. The mother is not credible, and she has not remedied the conditions that caused removal. The mother has chronic mental health issues.

         The court reiterated its previous aggravated-circumstances finding and found that "[n]either parent is fit and appropriate at this time. The children would be at risk of harm, instability, and risk of drug exposure if returned to either parent today."

         On March 7, DHS again petitioned for termination of both parents' parental rights based on the same grounds previously alleged. The circuit court convened a termination hearing on 11 April 2017. Dewight Merritt, Ramirez's counselor, testified that he had begun seeing Ramirez in January 2017, that Ramirez had not missed any of their nine appointments, and that Ramirez was currently in residential drug treatment. Merritt opined that Ramirez had made excellent progress. On cross-examination, Merritt stated that the referral for counseling had been received in August 2016 but his first meeting with Ramirez was not scheduled until January 2017. He also said that he conducted his sessions with Ramirez in English and did not feel a need for a translator.

          Kaylon Turner, a DHS caseworker, testified that she had been assigned to the case approximately two weeks before the hearing because the previous caseworker, Joann Darton, was placed on medical leave. Turner explained that since the January 17 hearing, Whitaker had completed inpatient drug treatment and had been given one drug screen, which was negative. She stated that Whitaker was now living in a three-bedroom apartment and was attending counseling at New Hope. Turner also said that since the January 17 hearing, both parents had completed psychological evaluations. She explained that Ramirez had been living with his brother before he entered drug treatment and that she had not drug tested Ramirez since the January 17 hearing. ...

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