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Kantor v. Arkansas Department of Human Services and Minor Child

Court of Appeals of Arkansas, Division I

September 12, 2018

LINDA KATHRYN KANTOR APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. 70JV-14-280] HONORABLE EDWIN KEATON, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Callie E. Corbyn, Office of Chief Counsel, for appellee.

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

          BART F. VIRDEN, JUDGE

         Appellant Linda Kantor appeals from the Union County Circuit Court's order appointing her ex-husband, David Kantor, guardian of their disabled adult daughter, Rebecca (DOB: 4-4-1997). Linda argues that (1) the circuit court lost jurisdiction over the case when, pursuant to Ark. Code Ann. § 9-27-306(a)(1)(B) (Repl. 2015), there was no request for the circuit court to continue jurisdiction and no determination was made whether Rebecca was engaged in a course of treatment, both of which had to occur before Rebecca's eighteenth birthday and (2) the circuit court erred by appointing David guardian of Rebecca because the Arkansas Department of Human Services (DHS), which filed the petition on David's behalf, did not have party status and failed to present sufficient proof to satisfy the statutory requirements of Ark. Code Ann. §§ 28-65-211 and 28-65-203 (Repl. 2012 & Supp. 2017). We reverse and remand.

         I. Procedural History

         This case began as a dependency-neglect proceeding in December 2014. DHS filed a petition for emergency custody and dependency-neglect based on allegations of maltreatment toward then seventeen-year-old Rebecca, who was described as "severely mentally handicapped." DHS's investigation revealed that Rebecca had not been attending school because she and Linda had been passing the flu back and forth to each other; that Linda had not taken Rebecca to see a doctor; that Linda acknowledged that Rebecca had been sitting in urine since the previous day but that Linda said she had been too sick to change her; that Linda was uncertain whether she could care for Rebecca and had said at some point that Rebecca would be better off in DHS's custody; and that Linda denied wanting to commit suicide but said that she had been diagnosed with depression. Linda was asked to submit to a drug screen, but she refused. DHS then contacted David, who resides in Texas, but David said that he could not take Rebecca at that time because he needed time to find a facility for her because he works and cares for his and Linda's younger daughter. DHS took a seventy-two-hour hold on Rebecca on December 16, 2014. In the affidavit, the social worker recounted DHS's history with the family. There were seventeen allegations of abuse or neglect on twelve occasions between July 2002 and June 2014. Five of the allegations, including abuse (cuts/welts/bruises), medical neglect, and environmental neglect, were found true.

         The circuit court entered an ex parte order for emergency custody on December 22, 2014, and later found probable cause to believe that Rebecca was dependent-neglected, that the emergency conditions that necessitated Rebecca's removal from Linda's custody continued to exist, and that Rebecca should remain in DHS's custody. On March 19, 2015, the circuit court adjudicated Rebecca dependent-neglected and specifically found that Linda was not in a position to care for Rebecca's special needs. The goal was reunification. The circuit court entered review orders in June and September 2015, each time finding that it was in Rebecca's best interest to remain in DHS's custody. A permanency-planning order was entered on January 12, 2016, in which the circuit court found the following:

The Court, mindful of the available permanency planning dispositions, in accordance with the best interest, health, and safety of the juvenile . . . does hereby determine the goal of the case shall be Another Planned Permanent Living Arrangement (APPLA). The Department shall develop a plan that addresses the quality of services, including, but not limited to, independent living services, if age appropriate, and a plan for the supervision and nurturing the juvenile shall receive. The Court selects this goal because the Department documented a compelling reason, specifically Rebecca is 18-years old and requires full time care that her parents cannot provide[.] [I]t would not be in the best interest of the juvenile to follow one of the permanency plans listed in A.C.A. 9-27-338(c)(1)-(6).

         Additional review orders were entered, all of which continued the goal of APPLA.

         On September 22, 2017, DHS petitioned for the appointment of David as guardian of Rebecca. DHS alleged that Rebecca is incapacitated by reason of mental disability and further alleged that

Rebecca Kantor communicates mostly through hand gestures, is incontinent, has unsteady ambulation-requires constant monitoring to prevent falls, has Cerebral Palsy, needs assistance with all daily living requirements, understands 70% of simple clear directions, to such extent the alleged incapacitated person lacks sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for the alleged incapacitated person's health or safety.

         On September 26, 2017, Linda filed a petition to appoint herself as Rebecca's guardian. Linda agreed that Rebecca is incapacitated, and her allegations supporting that conclusion mirrored those of DHS. Further, Linda alleged that David had never taken care of Rebecca's physical or medical needs in the past and that she has provided all of Rebecca's healthcare throughout her life until DHS took custody of Rebecca.

         II. Testimony-October 16, 2017

         DHS introduced several exhibits at the beginning of the hearing. A DHS report indicated that Rebecca had entered foster care on December 16, 2014, through Arkansas Support Network (ASN), and in August 2016, she had been moved to an apartment with full-time supervision. A "Personal Care Service Plan" from ASN states that Rebecca has cerebral palsy; that she is currently living independently in her home with 24/7 staff; that she attends a day-treatment program through ASN Monday through Friday; that she communicates mostly through gestures but can say "no" and "bye"; that she is incontinent of bowel and bladder; that she understands seventy percent of simple, clear directions; and that she needs assistance with all activities of daily living (ADLs). The document lists Rebecca's disabling conditions and functional abilities and then sets forth a personal-care plan with respect to eating, bathing, and dressing; personal hygiene; bowel and bladder requirements; taking medication; laundry and incidental housekeeping; shopping for personal items; and mobility and ambulation. The "consumer goal" is to "continue to assist and provide services r/t ADLs for Rebecca so that she will be able to live as independently in the community as possible without risk of institutionalization." A second similar document was introduced by DHS called "Personal Care Assessment and Service Plan," which is signed by a physician stating, "I have examined this patient within the past 60 days. I have reviewed the assessment and I confirm its accuracy. I authorize the personal care assistance detailed in this service plan . . . ."

         David Kantor testified that he and Linda were married "two years max." He stated that he lives in Plano, Texas, and has no intention of moving because his ninety-two-year-old father is in an assisted-living facility there. He said that his home is about a six-hour drive from Rebecca's placement in Fayetteville. David admitted that he had not visited Rebecca since she had been at ASN because of the long distance but said that he was working on getting Rebecca moved to Texas. He said that he wanted Linda's visits with Rebecca to be supervised because he had caught Linda smoking marijuana with their younger, then sixteen-year-old daughter, H.K.; however, he insisted that he would never prevent Linda from seeing Rebecca. David testified that Rebecca has cerebral palsy but that "[the doctors] don't really have a syndrome for her." He said that he is aware that she has trouble walking, has an eating disorder, and is mentally retarded. He acknowledged that Rebecca can never live by herself. David conceded that Linda had taken care of Rebecca's doctors' appointments and treatments in the past and had kept him apprised of her situation. He said that Linda had changed after they split up and that "as time wore on it got to be too much for her to take care of Rebecca." With respect to DHS's history with the family, David said that Linda was the offender thirteen times and that he had been involved with reporting alleged maltreatment on two of those occasions.

         Linda Kantor testified that Rebecca is incapacitated by reason of mental disability and that in 2003 a geneticist at Arkansas Children's Hospital had diagnosed Rebecca with an "unidentified unknown syndrome with cerebral palsy like symptoms." Linda said that Rebecca is "clerical but non-verbal" and that she had been learning sign language. She agreed that Rebecca cannot do anything for herself. When she was asked who had provided most of the hands-on care for Rebecca since birth, Linda said,

We decided together that one of us needed to stop working to take care of R.K. because she required 24/7 care. Even though I made more money, it was decided that I would be the one to give up my career to care for R.K. and I've done so ever since. I've done everything for her. I've taken her to all of her doctor appointments. When we were together, I've been the one doing everything. Setting up the appointments with the specialists, the therapists, gathering information that needed to be done, dealing with the school. I've done all of that.

         Linda further testified that she believed ASN was the best place right now for Rebecca. She said that she should be appointed Rebecca's guardian because she is "experienced with her disabilities and her special needs." She said that David was "never really involved with her care" and that "he was never really interested." Linda testified that she has been diagnosed with depression, anxiety, and posttraumatic stress disorder, that she could pass a drug screen that day, that she sees a therapist twice a month, and that she did not know of any warrants for her arrest from the State of Texas but later said that she had been charged with driving without insurance and had not been able to pay the fine. Linda said that she did not own a vehicle but that she had access to two vehicles. She conceded having canceled visits with Rebecca twice in August 2017 and twice in September 2017 due to lack of transportation, but she insisted that both vehicles had mechanical problems and that one was "still dead." Linda admitted that she had had no contact with Rebecca for two years and that she had been living in Springdale for four months before she started visiting Rebecca in Fayetteville in June 2017.

         III. Circuit Court's Order

         On December 18, 2017, the circuit court entered an order appointing David guardian of Rebecca's person. The circuit court found that Rebecca is in need of a guardian and that David is suitable and capable to act as her guardian. The circuit court limited David's power in stating that Rebecca cannot be moved from her current placement without court approval, waived the requirement of bond "inasmuch as petitioner is seeking a guardianship of the person only," denied Linda's petition, and noted that Linda's visitation with Rebecca would continue to be supervised.

         IV. Discussion

         A. Jurisdiction

         Arkansas Code Annotated section 9-27-306 provides the following:

(a)(1) The circuit court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter, including without limitation . . . (B) Proceedings in which a juvenile is alleged to be dependent or dependent-neglected ...

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