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Harris v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

September 19, 2018



          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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


         Leon Harris appeals the circuit court's order terminating his parental rights to his daughter, L.W. On appeal, he argues that the circuit court erred in (1) denying him reasonable accommodations in accordance with the Americans with Disabilities Act (ADA) and (2) finding that he had not remedied his drug issues. We affirm.

         On 18 July 2016, the Arkansas Department of Human Services (DHS) petitioned for emergency custody of five-day-old L.W. DHS identified Tonia Wysong as L.W.'s mother and Harris as the putative father. The accompanying affidavit explained that when L.W. was born, both she and Wysong tested positive for cocaine and tricyclites. Wysong admitted to having used cocaine "about a month ago" but said that it was a "one-time deal." Wysong identified Harris as her fiancé and L.W.'s father. Two days after L.W. was born, Wysong tested positive for cocaine, oxycodone, and benzodiazepine. Harris was interviewed and said he was not on drugs and would like to be L.W.'s caregiver. DHS exercised an emergency seventy-two-hour hold on L.W. for neglect (newborn illegal-substance exposure) and maternal unfitness.

         The court approved emergency custody of L.W. and found probable cause to continue custody with DHS based on Wysong's written stipulation. At that time, Wysong identified a different man as the putative father, and Harris was excused from the proceedings. However, in the adjudication order, the court again identified Harris as the putative father and ordered him to take appropriate steps to resolve the issue of paternity. L.W. was adjudicated dependent-neglected due to neglect and parental unfitness by the mother.

         A November 2016 review order noted that Wysong no longer wanted to participate in the case and wished to consent to termination of her parental rights. In January 2017, the court noted that DHS had petitioned to terminate Wysong's parental rights; the court also found that Harris's paternity test results had not yet been received, but if Harris was the biological father, DHS was to conduct a home study.

         An April 2017 order terminated Wysong's parental rights and found Harris was L.W.'s biological father. The court ordered that visitation commence between Harris and L.W. The court convened a permanency-planning hearing in June 2017 and authorized a plan to place custody with Harris and a concurrent goal of adoption. The court noted that Harris had consistently exercised visitation with L.W. and had submitted to random drug screens biweekly but had tested positive for cocaine in March 2017. Harris also had a home study done and had completed parenting classes.

         In July 2017, the circuit court reviewed the case and found that Harris was in partial compliance with the case plan and court orders. The court found that

although he completed a drug and alcohol assessment, there are concerns regarding the truthfulness of the information he provided during the assessment. He tested positive for cocaine on the drug screen that was administered during a brief recess in today's hearing. However, he believes his prescription medication is making him test positive for cocaine. He has been visiting the juvenile and his interaction during visits is appropriate. He also participates in GIFT [Guided Interaction Family Therapy] Coaching, and has maintained stable housing and income.

         The court found that L.W. could not be placed with Harris at that time and that L.W. "needs to be in the custody of a parent who is not using or abusing illegal substances or medications not prescribed for that parent."

         In September 2017, the court entered another review order finding that Harris was "making very little progress in the plan to have the juvenile placed in his legal custody." The court again expressed concern with Harris's truthfulness on his drug-and-alcohol assessment and also expressed concern with Harris's continued contact with Wysong and Tammie Barnes, a former fiancée, "both of whom are drug users. There is not a plan in place for him to parent this child and keep her safe when she is with him alone. That is not good and that is scary." The court also noted that during visitation with L.W., Harris "sits on the floor with her to play with toys and to eat a snack. The juvenile is very active during visitation, and tries to leave the room throughout the visit. However, father shakes her snack bowl and tells her to come back when she runs off instead of keeping her confined." Finally, the court stated that Harris had "completed GIFT Coaching to address parenting and the development of routines around his physical limitations and the juvenile's care."

         The court convened a two-day review hearing on October 19 and 25. At the commencement of the hearing, both DHS and L.W.'s attorney ad litem requested that the court change the goal of the case to adoption and authorize DHS to file a petition to terminate parental rights. Alexandria Forte, the family service worker assigned to the case, testified that since the last hearing, Harris had been compliant with the case plan and court orders. She agreed that Harris received Social Security disability as income, that he was participating in substance-abuse counseling, and that his drug-and-alcohol assessment recommended outpatient drug treatment. Forte explained that a hair-shaft test completed on September 12 had been positive for hydrocodone, cocaine, and benzoylecgonine. A urine screen performed on October 2 was negative.

         She explained that Harris was still exercising visitation and that the visits were appropriate, although she noted Harris's habit of sometimes shaking snacks at L.W. to get her to come back to him instead of getting up to retrieve her. The program assistants in the room during visitation alerted Forte that it seemed inappropriate. Forte explained that Harris had been referred to individual counseling but that he did not feel he needed it. Finally, she agreed that Harris's home was appropriate but stated that DHS was nevertheless recommending termination because he had just recently admitted he had a drug problem. Harris had also said that he was ...

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