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Bryant v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

June 20, 2018

RYAN BRYANT, APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD, APPELLEES

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV-15-755] HONORABLE WILEY A. BRANTON, JR., JUDGE.

          Gill Ragon Owen, P.A., by: Beth Echols, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          KENNETH S. HIXSON, JUDGE.

         Ryan Bryant appeals after the Pulaski County Circuit Court filed an order terminating his parental rights to Z.B. (DOB 11-13-2009).[1] On appeal, appellant argues that the trial court erred in terminating his parental rights because (1) there was insufficient evidence supporting the grounds asserted in the petition to terminate parental rights and (2) there was insufficient evidence that termination was in the best interest of his child. We affirm.

         I. Facts

         On May 22, 2015, the Arkansas Department of Human Services (DHS) filed a petition for ex parte emergency custody and dependency-neglect. In the affidavit attached to the petition, DHS stated that Z.B. and his siblings[2] were removed from the care of their mother, Annette Hughes, and a seventy-two-hour hold was taken due to neglect and parental unfitness. DHS initially received a report on May 13, 2015, that Hughes had been arrested for maintaining a drug premises. Law enforcement executed a warrant at her home and found methamphetamine, cocaine, marijuana, and prescription pain pills, as well as firearms within reach of the children. Z.B. was five years old at that time. After Hughes's arrest, appellant took Z.B. into his care. Appellant told the DHS-assigned caseworker that his plan was to keep Z.B. and to obtain custody. Appellant denied any knowledge about Hughes selling or using drugs. However, on May 20, 2015, the caseworker received a call from Hughes informing her that Hughes had been released from jail and that the children were returned to her care. Due to safety concerns, the children were removed at that time. The trial court granted the petition, finding that probable cause existed for the removal. Subsequently, the trial court filed a probable-cause order, noting that the parties stipulated that there was probable cause necessitating the removal.

         An adjudication hearing was held on July 14, 2015, and the trial court found Z.B. dependent-neglected as a result of neglect and parental unfitness. The trial court additionally made the following relevant findings:

The Court makes an aggravated circumstances finding against Mr. Bryant. The Court has concerns about his credibility and his testimony that he did not know about the mother's drug activity and that he had not been to her home despite having regular visitation with his children. He should have acted earlier to gain custody, and taken action to protect his children. The Court finds he is not directly responsible for the incident that caused the children to come into care.
The Court could authorize the filing of a petition to terminate parental rights because of the aggravated circumstances finding. The Court normally has up to one year to work with the family, but is not required to do so because of the findings. However, the Court is not authorizing the filing of a termination petition today.

         The trial court set the goal of the case for reunification and ordered appellant to submit to DNA testing; submit to random drug and alcohol screens by hair shaft and urine; submit to a psychological evaluation and follow any recommendations for therapy and treatment; complete parenting classes, individual counseling, and therapy; and obtain and maintain stable housing and income.

         The case progressed, and several permanency-planning hearings were held during the pendency of this case. In a permanency-planning order filed on October 29, 2015, the trial court found that appellant is Z.B.'s biological father according to DNA-testing results. The trial court continued custody with DHS and continued the goal of reunification with the mother. In the May 12, 2016 permanency-planning order, the trial court noted that it would continue the current placement but would consider future placement with appellant depending on "how things [would] go." The trial court additionally found that

[t]he available father, Ryan Bryant, inspires little confidence in the court. He claims he knew nothing about the drug dealing that was occurring at Ms. Hughes' home when the children were with her. Mr. Bryant's professed ignorance, if true, is troubling. If he was not being honest about his awareness of Ms. Hughes' activities, then this is even more troubling. The court believes he did know what was going on, and specifically finds that Mr. Bryant lacks credibility.

         On June 20, 2016, the attorney ad litem filed a petition for termination of parental rights and served the parents at the June 21, 2016 permanency-planning hearing. In the permanency-planning order, the trial court found that the children were young and "so far they have only had instability." It further found that appellant had not participated in Z.B.'s therapy as was previously court ordered, and it scheduled a termination hearing. However, the trial court filed another permanency-planning order on November 29, 2016. In that order, the trial court explained that it had dismissed the petition for termination without prejudice after appellant's counsel objected to a termination hearing being set more than ninety days after the petition had been filed. The trial court further noted that it remained unimpressed with appellant's progress and was not satisfied that he was minimally fit to parent. The trial court found that "[appellant] has participated in the ordered counseling only sparingly and though there are differing versions as to why that has not occurred, what is clear is that he must participate meaningfully now if he is to even be considered." It ordered that appellant be referred again for therapy with Z.B.

         A second petition for termination of parental rights was filed on January 9, 2017, and a termination hearing was held on February 21, 2017. The trial court terminated Hughes's parental rights; however, the trial court granted appellant more time to work toward reunification with Z.B.

As to Ryan Bryant, the Court declines to terminate parental rights as to him today with regard to his biological child, [Z.B.]. He has made an effort to comply, and of all of the parents in this case, he is the most functional. In light of the weeks Mr. Bryant missed visitations, the Court acknowledges the attorney ad litem's concern with [Z.B.'s] therapist's letter which states that Mr. Bryant "makes a high priority of spending time with his children." However, the Court nevertheless wants to give Ryan Bryant an opportunity to have [Z.B.] placed with him. The goal for [Z.B.] shall be placement with Ryan Bryant. . . . Although [Z.B.'s] goal will be placement with Mr. Bryant, the Court nevertheless feels it necessary to terminate Ms. Hughes' rights as to this child because Ms. Hughes poses a toxic influence to all of her children. . . . The Court orders DHS to schedule a staffing on this matter by March 17, 2017 to develop a transition plan in this regard. . . . Additionally, DHS shall perform a full SAFE home study on Mr. Bryant's new home, including background checks on his girlfriend. Mr. Bryant shall also participate in counseling with [Z.B.]. The Court anticipates placement of [Z.B.] . . . with Mr. Bryant . . . by April 3, 2017, assuming there are no issues with the background checks or other orders of this court in that regard. Under no circumstances shall Annette Hughes have any contact with any of these children.

         On May 16, 2017, the attorney ad litem filed a motion for ex parte relief alleging that appellant had allowed Hughes contact with Z.B. and requesting suspension of visitation between appellant and Z.B. The trial court granted the motion and further addressed the allegations at the May 30, 2017 permanency-planning hearing. At that hearing, appellant testified that he encountered Hughes at a spring festival when he had unsupervised visitation with Z.B. He stated that the encounter was less than a minute and stated that he just spoke and "kept on going." He further testified that Z.B. did not even know who she was at the time. Z.B., who was seven years old at the time of the hearing, testified that he saw his biological mother when he was with his father. He further testified that both he and his father talked with her. On cross-examination, although he could not remember where he saw his mother the last time, Z.B. explained that he remembered being inside and specifically stated that he was not at a restaurant or a park. Additionally, Brooke Pember, Z.B.'s foster mother, testified that Z.B. had told her that he had seen Hughes at his last visit. She further explained that Z.B. was very upset about the encounter. Z.B. further told her that his father had instructed him not to tell anyone about the encounter.

         In the order resulting from that permanency-planning hearing, the trial court found the following:

As to Ryan Bryant, he has again shown himself to be untrustworthy. The Court has made specific findings in the past that Mr. Bryant is not credible. The Court again today makes a specific finding that Mr. Ryan Bryant is not a credible individual and the Court can put very little weight in Mr. Bryant's testimony. This is a serious, substantial issue. The Court cannot trust what Mr. Bryant says.
To cite a specific example, Mr. Bryant was not honest about his living arrangements. The Court referred to its notes from February 21, 2017, and Mr. Bryant today directly contradicted the testimony given then. This is a material misrepresentation that involves several major issues concerning his house and others living in the home as well as the true nature of his relationship with those persons in the home and where he wants to have the child [Z.B.] placed.
He previously testified that the house he was in was leased to him, in his name, and his girlfriend was living with him in his home. The home study of that home, accepted into evidence today, revealed that the home was not leased to him but rather to the woman he claimed was his girlfriend, who is now no longer his girlfriend. Further, she said it was her intention to have him move from the home.
It is also notable that all of this information was gathered from her, not him; he was not forthcoming about any of these issues. Apparently, he would have ...

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