FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FJV-15-357] HONORABLE LEIGH ZUERKER, JUDGE
Lanford, Arkansas Public Defender Commission, for appellant
James Thomas Allen.
Standridge, for appellant Aleisha Marie Bankston.
Firth, Office of Chief Counsel, for appellee. Chrestman
Group, PLLC, by: Keith L. Chrestman, attorney ad litem for
F. VIRDEN, Judge
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.
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.
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
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.
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
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.
November 28, 2016, DHS filed a petition for termination of
parental rights. A hearing was held on January 26 and
February 24, 2017.
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
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.
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
[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 ...