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Allen v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

February 21, 2018



          Leah Lanford, Arkansas Public Defender Commission, for appellant James Thomas Allen.

          Dusti Standridge, for appellant Aleisha Marie Bankston.

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

          BART F. VIRDEN, Judge

         Appellants James Allen and Aleisha Bankston bring separate appeals from the Sebastian County Circuit Court's termination of their parental rights to their son, H.A. (DOB: 3-4-2013). They argue that there was insufficient evidence to establish grounds and that the trial court erred in determining that termination of their parental rights was in H.A.'s best interest. We affirm.

         I. Procedural History

         On June 17, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect concerning H.A. Attached to the petition was the affidavit of Brooke Harrell, an investigator with DHS, in which she attested that on June 14 the Fort Smith Police Department had been called for a welfare check on the parents' home and had requested DHS's assistance. Harrell was told that there was no electricity in the home, but she saw that there were electrical cords running throughout the home and over to a neighbor's residence. The investigator saw trash and roaches, smelled garbage, and noted that it was "extremely hot" inside the home. The investigator was told that H.A. was not potty trained, that he mostly crawled, and that he could not speak. When asked why she had not enrolled H.A. in developmental classes, Bankston responded that she had not gotten around to it. Allen and Bankston were both arrested for third-degree child endangerment. DHS took a seventy-two-hour hold on H.A. A "CHRIS search" revealed that in 2013 Bankston and then newborn H.A. had tested positive for marijuana. A protective-services case had been opened but was closed approximately one month later after both parents tested negative for all substances.

         An ex parte order for emergency custody was entered, and the trial court later found probable cause to issue the order based on the parents' stipulation. On August 24, 2015, H.A. was adjudicated dependent-neglected based on neglect and parental unfitness as to both Allen and Bankston. The trial court ordered DHS to develop a case plan, and the parents were ordered to obtain and maintain stable and appropriate housing, income, and transportation; complete parenting classes; submit to a drug-and-alcohol assessment and follow all recommendations; submit to drug testing; and visit H.A. regularly. Allen was ordered to submit to genetic testing to determine paternity.

         A review order was entered on January 4, 2016, in which the trial court found that DHS had complied with the case plan and court orders and that the parents had minimally complied. The trial court found that Allen had produced a certificate of completion for the parenting classes; that the parents' visits with the child were inconsistent; and that the parents had submitted to drug testing, the results of which were positive. Also, the parents had failed to obtain stable housing, employment, and transportation and had failed to submit to a drug-and-alcohol assessment. The trial court found that DHS had made reasonable efforts to provide family services to achieve the goal of reunification.

         On October 6, 2016, another review order was entered, and later amended, based on hearings held in May, June, and July 2016. The trial court established a concurrent goal of reunification and adoption following termination of parental rights. The trial court found that DHS had complied with the case plan and court orders and had made reasonable efforts to provide family services. The trial court found that Allen is the biological father of H.A. The trial court found that the parents have housing and had recently signed a lease for a new residence; that the mother draws disability and that the father is employed; that the mother had completed parenting classes; and that both parents had submitted to a drug-and-alcohol assessment. The trial court noted, however, that the parents had not started the recommended treatment following their assessments and that they still had criminal issues pending.

         In the fifteen-months review order entered on October 17, 2016, the trial court found that the parents had completed drug treatment but that they had not resolved their criminal issues and did not have driver's licenses.

         On November 28, 2016, DHS filed a petition for termination of parental rights. A hearing was held on January 26 and February 24, 2017.

         II. Hearing Testimony

         Bankston testified that H.A. had a complicated birth in that he had gotten stuck in the birth canal and now has a misshapen head. She said that she had been taking H.A. for therapy but then missed a couple of appointments because of her poor health. She testified that the helmet that H.A. was supposed to wear caused too much pressure on his head and had even caused "blood bruises" around the back of his head. She admitted that she had stopped using the helmet against medical advice. She said that H.A.'s doctor had tried to force the helmet back on H.A.'s head but had eventually given up and instructed her to rotate his head from side to side. She said that she had attended only one doctor's appointment for H.A. but that it was the only one that she had been notified to attend. Allen stated that, although a doctor had instructed them to have H.A. wear a helmet, he and Bankston had deemed it harmful to the child and discontinued using it. He said he understood that the child needed another helmet but that his insurance would not cover it and that they did not have $5, 000 to pay for it. Robbie McKay, a DHS caseworker, testified that there was a discussion early on that H.A. needed surgery to reshape his head but that it was later determined that there will be no surgery and that H.A.'s head will be monitored every six months and then every year.

         Kayla James, a special-education teacher at Forrester Davis Development Center in Clarksville, testified that H.A. receives physical, occupational, and speech therapy and day habilitation services. She said that, compared to a typical four-year-old child, H.A. was operating as a child of approximately two and a half years. She stated that H.A. will likely continue to need the therapies until he transitions to public school. James described H.A. as a "very, very active" child and said that he has behavioral issues, including aggression, that he needs very close, "if not one-on-one, " supervision at all times, and that he has "a very rough time" with change. She said, "[T]here is no rest for a caregiver with this young man." James said that H.A. does not observe nap time at the facility and that he must be given "busy work" or toys so that he does not wake the other children. She testified that, if a parent had a dizzy spell or needed to be in bed, that would be "an issue." James said that the center's disciplinary team had recommended that H.A. be evaluated for autism and ADHD. James said that whoever cared for H.A. outside of class needed to follow the same behavior plan at home. She said that the foster parents had stayed in daily contact with the center. James testified that it was the center's policy not to speak with the biological parents when a child is in foster care.

         Linda Butler, a court appointed special advocate (CASA), testified that H.A. is a special-needs child who "did not get the best start in this world." She said that she was concerned that if H.A. is returned to his parents, he will not get the care he needs to meet his full potential. She said that H.A. will have problems most of his life. A CASA court report was entered into evidence. The background information included the following:

[H.A.] was born prematurely at 7 months at Sparks Regional Medical Center then transferred to Mercy NICU unit. [H.A.'s] birth was complicated by the lack of prenatal care and the presence of drugs in both mother and child. At five (5) months old he was taken to Arkansas Children's Hospital Pediatric and Reconstructive Craneo Maxillo-Facial surgery clinic. It was recommended to have physical therapy and a helmet for the treatment of Plagiocephaly and Torticolis. This recommendation was not followed through by the mother. After several visits, [H.A.] did not arrive at his appointments.
[H.A.] was enrolled in several programs to help his condition. Bost, AHEC, and Gregory Kistler Center, all at the local level, reported that he was dropped from the program because excessive no-shows.
A PACE evaluation given on July 8, 2015, when [H.A.] was 2 years and 4 months old showed him to be at a ...

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