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Bales v. Arkansas Department of Human Services and Minor Children

Court of Appeals of Arkansas, Division II

June 6, 2018



          Tina Bowers Lee, 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.

          BRANDON J. HARRISON, Judge

         Katlyn 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 affirm.

         On 18 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 arrangements.

         On the 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.

         The 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.

         The 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 Poteau, Oklahoma.

         After 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.

         On 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.

         Julie 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.

         On 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.

         Bales 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 ...

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