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Gann v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

May 2, 2018

HEATHER GANN APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23JV-16-107] HONORABLE DAVID M. CLARK, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

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

          BART F. VIRDEN, Judge

         Heather Gann appeals the order of the Faulkner County Circuit Court terminating her parental rights to A.G. (born 5/2/04), Q.G. (born 9/12/07), and D.G. (born 8/29/15).[1] We affirm.

         On March 16, 2016, a 72-hour emergency hold was taken on Heather and Jacen Gann's three children, and the Arkansas Department of Human Services ("the Department") filed a petition for emergency custody and dependency-neglect. The attached affidavit of facts set forth that the Damascus Police Department received a call that Heather was walking with D.G. in and out of traffic on Highway 65. Chief of Police Rick Perry responded and reported that when he talked to Heather, she seemed "out of her mind" and that she told him that she needed help because a terrorist was "going to get her." Heather was arrested for endangering the welfare of a minor, and she refused a drug screen. Family service worker Cynthia Thompson met with Heather that day and noted that Heather appeared to be under the influence of drugs and that she was "antsy, anxious, and agitated." It was noted in the affidavit that Heather had a prior history with the Department: in November 2010 and in April 2015 the court had made true findings of inadequate supervision, and in August 2015 D.G. was found to have been born with drugs in his system. The circuit court entered an ex parte order for emergency custody. On March 24, 2016, the circuit court entered an order finding probable cause to remove the children from Heather's custody existed at the time of removal and continued to exist.

         On May 12, 2016, the circuit court entered an adjudication order following a hearing. The circuit court based its decision in part on Heather's testimony that while she was walking along Highway 65, she had an anxiety attack and had given D.G. to a man named "Russell." D.G. was located at a veterinary clinic across the highway. Heather testified that she could not remember the last time she had taken drugs but that she had not wanted to take a test on the day of removal because she was afraid she had been given methamphetamine without her knowledge. The circuit court also heard the testimony of Chief Perry and family service worker Thompson that reflected their statements found in the affidavit of facts.

         The circuit court entered an order finding by a preponderance of the evidence that Heather's children were dependent-neglected and were at substantial risk of harm as a result of neglect due to inadequate supervision and parental unfitness due to Jacen's drug use. The circuit court found that Heather had prior contact with the Department going back to 2010 for true findings of inadequate supervision and for D.G. having been born with drugs in his system and that she was currently incarcerated in the Faulkner County jail for endangering the welfare of a minor.

         Heather was ordered to keep in contact with the Department and inform the Department of any changes in address or contact information, submit to psychological testing and drug-and-alcohol assessment and follow any resulting recommendations, maintain sobriety, submit to drug screens, complete parenting classes and demonstrate appropriate parenting skills after completing the classes, participate in individual counseling, maintain stable housing and employment, and demonstrate the ability to protect and keep juveniles safe. Heather was ordered to watch the video "The Clock is Ticking, " and the court advised Heather that there was a limited amount of time to comply with the case plan and effect the return of the children. The circuit court informed Heather that a permanency- planning hearing would take place on March 16, 2017, and that failure to make appropriate progress during the statutory time frame and failure to correct the conditions could result in the termination of her parental rights. Heather was allowed to have two hours of supervised visitation per week. The circuit court ordered the Department to develop a case plan, offer services, set up hair-follicle testing, and provide a drug-assessment referral.

         On July 12, 2016, after a review hearing, the circuit court entered an order finding that the children should remain in the Department's custody, that the concurrent goals were reunification and adoption, and that visitation between the parents and children was appropriate. The circuit court found that Heather had failed to comply with the case plan and orders, specifically, she had not maintained contact with the Department after she was released from the Faulkner County Detention Center. The circuit court found that the Department had complied with the case plan and court orders and had made reasonable efforts to provide family services toward reunification.

         On October 25, 2016, the circuit court entered a review order pursuant to a hearing. Again, the circuit court found that Heather had not complied with the case plan, and it found that Heather had spent the majority of the case in jail, [2] she had failed to attend NA/AA meetings, she had not been active in the ordered services, and she had made no progress toward alleviating the causes of removal. The circuit court found that the Department had complied with the case plan.

         On January 24, 2017, the circuit court entered a review order in which it found that visitation between the parents and the children was appropriate, and it increased visitation to four hours of unsupervised visitation per week. The court found that Heather had partially complied with the case plan: she was employed part time, she was scheduled to have a psychological evaluation in March, she would complete parenting classes in one week, and she had been in her current address for two months; however, her hair-follicle test in October had been positive for methamphetamine, she had missed some visitation, she had been in police custody for several months after the removal, she had tested positive for THC two weeks before the hearing, and she had made minimal progress toward alleviating the conditions that caused removal. The Department was found to have complied with the case plan.

         Heather's situation had improved by the next hearing on March 7, 2017. Pursuant to that hearing, the circuit court entered a permanency-planning order setting forth that reunification was still the goal and that visitation was expanded to allow visitation at the treatment facility. The circuit court found that Heather had complied with the court orders. Namely, she had completed parenting classes, and she had completed drug assessment and was ready to begin the thirty-day inpatient-treatment program. Heather had completed her psychological assessment and had begun counseling, and she had "made much progress toward alleviating or mitigating the causes of the juveniles' removal from the home."

         On June 12, 2017, the Department filed a petition to terminate Heather's parental rights. The Department alleged three statutory grounds for termination. First, the Department alleged that the juveniles had been adjudicated by the court to be dependent-neglected and had continued out of the custody of the mother for twelve months, and despite a meaningful effort by the Department to rehabilitate Heather, she had failed to correct the conditions that caused removal. Specifically, the Department alleged that after the children had been removed on March 16, 2016, Heather had been absent for much of the case due to her incarceration, and she had been jailed again from September 10 to October 10. The Department stated that Heather had begun participating in services right before the permanency-planning hearing and that she entered drug treatment fourteen months after the case began. The ...


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