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Brown v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

June 6, 2018



          Janet Lawrence, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          DAVID M. GLOVER, Judge

         Jessica Brown appeals the Saline County Circuit Court's decision to award permanent custody of her daughters, J.K.1 and J.K.2, to their father (Jessica's ex-husband), Claude Kirby, and to close the Arkansas Department of Human Services (DHS) case with respect to J.K.1 and J.K.2.[1] On appeal, Jessica argues (1) she did not fail to protect her daughters and in fact took appropriate measures to keep them from harm, and (2) DHS failed to prove Claude was a fit and appropriate parent for placement of their daughters. We affirm the circuit court's award of permanent custody to Claude.

         Procedural Background

         Jessica is currently married to Jacob Brown, and together they have a son, S.B.; Jacob also has a daughter, I.B., from a previous relationship. On January 23, 2017, DHS filed a petition for emergency custody of S.B., J.K.1, and J.K.2. The affidavit attached to the petition noted Jessica and Claude shared joint custody of J.K.1 and J.K.2 pursuant to their divorce decree, with Jessica as the primary custodian; it sought an emergency order removing the girls from Jessica's custody and leaving them in Claude's custody, as he was fit and appropriate; and it asserted continuing legal custody with Jessica presented an immediate danger to the health or physical well-being of the children.

         On January 18, 2017, according to the affidavit, I.B. reported Jessica and Jacob had gotten into an altercation about selling Jacob's prescription medication; I.B. stated Jacob sold his prescription medicine and gave I.B. one of his prescription pills to "calm her down"; Jessica and Jacob both denied I.B.'s allegations; and J.K.1 and J.K.2 confirmed Jessica had dropped Jacob off to "get money, " and they had driven around the corner to wait for him.

         On January 19, Jacob reported he had been arrested the night before for assault on a family member and was currently incarcerated at the Saline County Detention Center. In an interview with a family-service worker, Jacob explained he and Jessica had a verbal altercation, and he had "accidentally" slapped her as she was trying to call the police after he threatened suicide over concerns he might lose I.B. Jacob said I.B. and S.B. were present in the home during the altercation but were sleeping, and J.K.1 and J.K.2 were with Claude at the time of the altercation. Jessica reported Jacob had brandished a gun and threatened suicide, and while I.B. and S.B. did not witness Jacob hit her, they were awake and witnessed Jacob with the gun. When asked about her plan to protect the children from Jacob, Jessica stated Jacob would go to rehabilitation, although none was court ordered. At that time, Jessica refused to obtain an order of protection, stating Jacob did not mean to hurt her, he would not hurt the children, and she could not take time off work to obtain an order of protection. DHS concluded Jessica was unable to provide for the safety of the children, noting she had previously been ordered to limit J.K.1 and J.K.2's contact with Jacob due to his history of violence and drug use. The affidavit asserted J.K.1 and J.K.2's health and safety were in danger due to the allegations involving failure to protect, substance misuse, inadequate supervision, and parental unfitness.

         Ex parte emergency orders of custody were entered on the same day, and J.K.1 and J.K.2 were ordered to remain in Claude's custody, with Jessica having only supervised visitation pending further hearings. A probable-cause order was filed on February 24, 2017, finding there was probable cause the emergency conditions that necessitated removal of all three children continued and continuing custody of S.B. with DHS and J.K.1 and J.K.2 in the custody of their father.

         All three children were adjudicated dependent-neglected in an order filed on April 24, 2017; Jessica stipulated to the finding that the children were dependent-neglected. The circuit court found by a preponderance of the evidence the allegations were true. Specifically, it found Jacob had given I.B. two of his prescription Klonipin pills; he had brandished a handgun and threatened to kill himself in front of Jessica; he had forced I.B. and S.B. into a closet; he had then broken down a door to a room where Jessica, I.B., and S.B. had fled; and he then barricaded himself in a bathroom, still threatening to kill himself, until law enforcement arrived. The adjudication order stated the goal for J.K.1 and J.K.2 was to maintain them in Claude's home, with Jessica to have supervised visitation.

         A review order, filed on July 26, 2017, found returning joint custody to Jessica was contrary to J.K.1 and J.K.2's welfare, and continuation of sole custody with Claude was in the girls' best interests. The review order noted that Claude had complied with the case plan in that he had maintained the girls in his home, seen to their needs, and was cooperating with DHS.

         An agreed order for trial placement in Jessica's home for J.K.1 and J.K.2 was filed in August 2017, but the trial placement ended two days after it began because Jacob returned to the home under the influence of drugs and frightened the girls. At the time Jacob came home, Jessica had put S.B. to bed and had fallen asleep with him; the girls were alone in the living room. Claude filed a motion for permanent custody on September 6, 2017, alleging there had been a material change in circumstances and it was in the best ...

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