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McKinney v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

February 21, 2018



          Janet Lawrence, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

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


         Kyle McKinney appeals the termination of his parental rights to his three children. He generally challenges the circuit court's best-interest finding and asserts that the Arkansas Department of Human Services (DHS) did not prove a lack of compliance with the case plan. We affirm.

         On 17 June 2016, DHS exercised a 72-hour hold on three-month-old A.M. after a medical examination at Arkansas Children's Hospital revealed bone fractures, head trauma, brain damage, and a subdural hematoma. See Mercado v. Ark. Dep't of Human Servs., 2017 Ark.App. 232, 519 S.W.3d 715. A.M. is the daughter of Francesca Mercado, who was McKinney's girlfriend at the time.[1] McKinney and Mercado also lived together. As part of DHS's investigation, it learned that McKinney's three children, seven-year-old J.M., four-year-old K.M.1, and three-year-old K.M.2, either visited or resided in his and Mercado's home.[2] Due to the physical abuse by an unknown offender and the magnitude of A.M.'s injuries, DHS placed a 72-hour hold on K.M.1 and K.M.2. J.M. was returned to her mother's custody, and DHS requested that McKinney have no contact with her.

         On 20 June 2016, DHS petitioned for and was granted an order of emergency custody and order of protection for J.M., K.M.1, and K.M.2. In August 2016, the circuit court found probable cause to continue DHS's custody of K.M.1 and K.M.2 and to continue the order of protection for J.M. In September 2016, the court adjudicated the children dependent-neglected. The court noted that Mercado and McKinney had married[3] and found that the "juveniles are at substantial risk of serious harm as a result of physical abuse of the juveniles' step-sibling, [A.M.], by Kyle McKinney." McKinney was ordered to obtain and maintain stable and appropriate housing, income, and transportation; complete parenting-without-violence classes; submit to a psychological evaluation and comply with the recommendations; submit to random drug-and-alcohol screens; and if a positive test occurs, undergo a drug-and-alcohol assessment.

         In November 2016, DHS petitioned to terminate McKinney's parental rights pursuant to Ark. Code Ann. § 9-27-341(c)(2), which provides that a court may terminate the rights of one parent and not the other parent if the court finds that it is in the best interest of the child. See Ark. Code Ann. § 9-27-341(c)(2)(B) (Supp. 2017). As grounds, DHS alleged that a sibling of the children had been adjudicated dependent-neglected as a result of neglect or abuse that could endanger the lives of the children, subsequent factors, and aggravated circumstances. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vi), (vii), and (ix).

         In December 2016, the circuit court entered a review and custody order. That order placed K.M.1 and K.M.2 in the custody of their mother, Katessa Mayner, and ordered McKinney to pay child support. The order also continued custody of J.M. with her mother, Taryn Price, and ordered McKinney to pay child support.

         The court conducted a lengthy termination hearing over several days in April and May 2017 and also received posttrial briefs in lieu of closing arguments from the children's ad litem, DHS, and McKinney. The majority of the testimony presented at the termination hearing focused on the nature and extent of A.M.'s injuries and who was responsible for those injuries. In a letter opinion dated 12 June 2017, the circuit court specifically found both McKinney and Mercado not credible. Turning to the day of A.M.'s injuries, the court found that when A.M. was first presented to the emergency room,

no one had any plausible explanation as to what might have caused the injuries. The story was that one of the other children had fallen on the baby or that a thrown toy had struck her. These theories were discounted by Dr. Farst and by common sense. The opinion of Dr. Farst was that if the baby was fine at breakfast and at noon the injury had to have occurred when the child was in the care of McKinney that afternoon.
On June 17, DHS placed a hold and obtained an ex parte order of custody on two of his children and an order of protection for the one of which he did not have custody. At this time the staff at ACH told McKinney that he could not stay there, as he was not related to [A.M.]. To solve that probem he married Francesca [Mercado] on June 27, eleven days after [A.M.] was admitted. He is then the stepfather. It is the opinion of this court, based on the psychological diagnosis, that this was in order for him ...

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