FROM THE SCOTT COUNTY CIRCUIT COURT [NO. 64JV-17-27]
HONORABLE TERRY SULLIVAN, JUDGE
Bowers Lee, Arkansas Public Defender Commission, for
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
BRANDON J. HARRISON, Judge
Bales appeals the circuit court's order that adjudicated
her children dependent-neglected. On appeal, she argues that
the circuit court erred in (1) adjudicating the children
dependent-neglected, (2) continuing custody of the children
with the Department of Human Services (DHS), and (3) finding
that DHS engaged in reasonable efforts to prevent removal. We
September 2017, DHS filed for emergency custody of
two-month-old N.M. and thirteen-month-old A.S. The
accompanying affidavit explained that on September 12, the
Scott County Department of Children and Family Services
(DCFS) received a referral concerning N.M., who was
underweight. N.M. weighed 8 pounds, 11 ounces at birth, and
two months later weighed 9 pounds, 4 ounces. Bales told
medical staff that N.M. was under a doctor's care, but
N.M.'s pediatrician had not seen him since the birth.
Bales also missed a follow-up visit with a nutritionist on
September 11. The affidavit noted that DCFS had an open
protective-services (PS) case with Bales for
environmental-neglect issues. Since the PS case had been
opened, Bales, her boyfriend, and the two children had moved
in with Bales's maternal grandparents, the Skinners, but
DCFS was still conducting random drug screens and random home
visits. According to the affidavit, Bales had agreed to
notify DCFS if there were any changes in her living
morning of September 13, several family service workers
arrived at the Skinner residence to speak with Bales and
observe the children. Mr. Skinner told them that Bales and
the children were not there, he did not know where they were,
and he would have Bales call when she returned. Forty-five
minutes later, Bales called DCFS and stated that she had
relocated to Oklahoma, had been living with a friend for
several days, and had a job at Subway. Later in the
conversation, however, she said that she had moved to
Oklahoma to be with a boyfriend, that she was no longer
employed at Subway, and that she was worried about not having
a place to live. She asked DCFS to drive to Oklahoma to visit
the children, but they refused, so Bales said she would find
a ride back to Arkansas. Mr. Skinner drove to Oklahoma to
pick up Bales and the children, and they arrived at the DCFS
office at approximately 7:00 p.m. DCFS placed a
seventy-two-hour hold on the children over "concerns for
the children's health and safety due to the mother,
Katlyn Bales, not having a stable home environment, not
providing adequate food and medical neglect with
[N.M.]." The affidavit also listed a lengthy
maltreatment history involving Bales, including multiple
incidents in which Bales was the alleged victim and either
her mother (Tina Bales) or one of her grandparents (the
Skinners) were the alleged offenders. There were also reports
of inadequate food and environmental neglect from 2016 and
2017 listing Bales as the alleged offender.
circuit court ordered emergency custody of the children and,
by stipulation, found probable cause to continue custody with
DHS on September 25. The court ordered Bales to watch the
"Clock is Ticking" video, attend and complete
parenting classes, obtain stable and appropriate housing,
obtain and maintain stable and gainful employment, submit to
a psychological evaluation, attend counseling, submit to
homemaker services, and otherwise cooperate with DHS and
comply with the case plan. The court also allowed visitation
at the discretion of DHS.
circuit court convened an adjudication hearing on November 7.
Ashley Mickle, a nutritionist with the Arkansas Department of
Health WIC program, testified that she had an appointment
with Bales and N.M. on September 6. At that time, Mickle
said, the baby weighed 9 pounds, 4 ounces, "wasn't
growing very well, " and was gaining weight at an
approximate rate of 0.2 ounces per day. She said a normal
weight-gain rate would be approximately 1.0 ounce per day.
Bales told Mickle that she was feeding N.M. formula, 16
ounces a day, and Mickle told Bales that was a low amount and
asked her to keep a food log of what he was eating. Mickle
scheduled a follow-up visit for September 11, but Bales did
not appear, and Bales told a nurse that she had moved to
reviewing hospital records, Mickle said that N.M. was seen in
the Mercy Hospital emergency room on August 5 for thrush and
weighed 9 pounds at that time. The notes from that visit
state that the baby was "dirty, smells of rotten milk,
and stale urine. Mother with strong body odor as well."
The notes also state that N.M. "was breast feed [sic]
until a few days ago when she switched him to formula."
Records indicated another emergency room visit on September
13, the day N.M. was taken into DHS custody, "due to
concern about failure to thrive coupled with mother not
taking child to PCP for eval." On that day, the baby
weighed 10 pounds, 0.3 ounces. Finally, records from an
appointment at Sparks Hospital indicated that the baby
weighed 10.93 pounds on September 25. Mickle said that the
baby had been weighed the day before the hearing and that he
weighed 11 pounds, 14 ounces, which is a healthy weight gain
since September 6.
cross-examination, Mickle said she was not given any medical
diagnosis to explain why the child was not gaining weight.
She acknowledged that between September 6 and September 13,
the day that DHS took N.M. into custody, the baby had gained
approximately 12 ounces, which was an appropriate weight
gain. Mickle agreed that the weight gain occurred while N.M.
was in Bales's care and that if Bales had attended the
September 11 appointment, Mickle's concern for the baby
would have been alleviated. She also agreed that a nurse at
the WIC office had first seen N.M. on August 22, which meant
that Bales had started seeking food assistance around six
weeks after N.M.'s birth.
Kishiyama, the Scott County DCFS supervisor, testified that a
PS case was opened with the family after they received a
report that "the mother and father were not keeping the
house very clean for the child, for [A.S.] and for the
brand-new baby, and there were chickens living in the
bathroom." Caseworkers began visiting Bales weekly at
her home in the Bristol Square Apartments. At some point,
Bales moved in with her grandparents, and Kishiyama and two
caseworkers attempted to visit her there on September 13.
When Kishiyama finally saw Bales at approximately 7:00 p.m.
on September 13, Bales told her that she had been seeing Dr.
Cheshier, the baby's pediatrician, and that he had said
there were "medical issues" causing N.M. to not
gain weight. Bales did not specify what those medical issues
were. Kishiyama had already contacted Dr. Cheshier's
office and knew that the doctor had not seen N.M. since his
birth. Kishiyama accused Bales of not being honest and placed
the children on a seventy-two-hour hold.
cross-examination, Kishiyama explained that DCFS felt
comfortable with Bales and the children living with her
grandparents but that they still planned to conduct home
visits. DCFS told Bales and the grandparents that if the
living arrangement changed, DCFS should be notified.
Kishiyama acknowledged there was no court order requiring
Bales to notify DCFS if she moved. She explained that when
she exercised the hold, her biggest concern was not the
baby's weight but Bales's relocation to Poteau and
the inconsistencies in Bales's explanations for the move
and the baby's doctor's visits. She agreed that Bales
had taken N.M. to get all his medically recommended shots,
that she had taken him to WIC, that she had taken him to the
emergency room when he had thrush, and that the last week he
was with her he had gained more than the recommended amount
of weight. She also agreed that she had no reason to restrict
Bales's right to travel or move to Oklahoma. Finally, she
agreed that, as part of the PS case, DCFS could have provided
assistance for N.M.'s medical needs, but Kishiyama said
Bales never requested that type of assistance. Upon being
questioned by the court, Kishiyama said that Bales had
complied with the PS case by cleaning the home. Kishiyama
also noted an inadequate-food report made in August 2016,
after A.S. was born, and two environmental-neglect reports
made in February and April 2017.
testified that she currently lives with her mother and her
grandparents. She said that N.M. was anemic when he was born
and that she had breastfed him for his first two months until
DHS took him. She claimed that she had been harassed by DHS
since February 2017 and that she had never had chickens in
her home. She said that she had visited friends in Oklahoma
and considered staying there but had never moved there. She
acknowledged that she had ...