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King v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

October 3, 2018

JAMES KING APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-16-820] HONORABLE STACEY ZIMMERMAN, JUDGE

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

          Callie Corbyn, Office of Chief Counsel, for appellee.

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

          ROBERT J. GLADWIN, JUDGE

         Appellant James King appeals the March 30, 2018 termination of his parental rights (TPR) with respect to his minor son, T.K., entered by the Washington County Circuit Court. King argues that the circuit court (1) erred in finding statutory grounds to support TPR; (2) erred in finding that TPR was in T.K.'s best interest because it incorrectly analyzed the potential harm; and (3) committed reversible error when it did not file the TPR order until fifty-eight days after the hearing-twenty-eight days beyond the statutory requirement. We affirm.

         I. Facts and Procedural History

         The Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on eight-year-old W.K. and seven-year-old T.K. (half-brothers) on October 24, 2016, removing them from the custody of their mother, Teilor Lybrand, after she was arrested on a warrant for child neglect.[1] It is undisputed that the children were not in King's custody when they were removed, and the circuit court recognized that King was not the cause of the removal. DHS filed a petition for emergency custody, and the circuit court entered an order on October 27, 2016.

         King was identified as T.K.'s putative father at the time of removal, and it was discovered that he was incarcerated in the Arkansas Department of Correction. King's history with DHS dates to 2009 when a true finding was made against him for shaking a child age three or younger and causing internal injuries and bone fracture-the victim in that incident was T.K. DHS records indicate that King was implicated in a total of five reports to the hotline that ultimately resulted in three true findings.

         On November 2, 2016, the circuit court held a probable-cause hearing and found that probable cause to exercise emergency custody of T.K. existed and continued to exist. King was not present for that hearing. The first part of the adjudication hearing occurred on December 13, 2016, and concluded on January 20, 2017. The circuit court found T.K. dependent-neglected as a result of neglect and parental unfitness. King did not appear at the adjudication hearing although he was served with the summons, petition, and notice of the hearing.

         On May 25, 2017, the circuit court held a review hearing that King did attend. An acknowledgement of paternity of T.K. was entered into the record, and the circuit court found that King was not in compliance with the case plan and court orders. A permanency-planning hearing was held on October 5, 2017, and the goal of the case was changed to adoption. King was present at the hearing, and the circuit court appointed him an attorney. In addition, the circuit court found that King still was not in compliance with the case plan and court orders and that he was making only "minimal progress."

         DHS filed a TPR petition on December 29, 2017, collectively against Lybrand, Whittmore, and King, with respect to W.K. and T.K., alleging Ark. Code. Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017)--the subsequent-factors ground:[2]

That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in the custody of the parents is contrary to the juveniles' health, safety or welfare and that despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parents' circumstances which prevent the placement of the juveniles in the custody of the parents.

         The TPR petition also provided from the permanency-planning order, specifically with respect to King:

The Court also found that "James King has not complied with all the court orders and the case plan. Specifically-Mr. King is not in a situation where he can provide what these boys need. He cannot meet the needs of both children, or even the needs of [T.K.]. Mr. King has not demonstrated that he can maintain stability. Mr. King has not been in compliance once in this case." Mr. King did not begin to participate in any services offered by the Department until sometime after the Review Hearing, held before this Court on May 25, 2017. At that Hearing, the Court found that "Mr. King has not availed himself to this Court or the Department. He has not participated in services.'' It should be noted that Mr. King did not participate in services due to his being incarcerated at the Arkansas Department of Correction for Domestic Battery 2nd, with [T.K.] as the victim of that crime. Mr. King is currently on parole until 2020.
The juveniles could not safely be placed in the custody of a parent at any point during the life of this case, due to the parents' noncompliance and poor choices. Despite the offer of appropriate family services-including home visits, case management, foster-care services, counseling referral, drug and alcohol assessment referral, and random drug screens-Mother, James King, and Daniel Whittmore have all demonstrated either that they are either unwilling or unable to remedy the subsequent issues that prevent the juveniles from being placed in their custody. No parent in this case has shown that they can provide stability for the juveniles or protect the juveniles and keep them safe from harm.

(Emphasis in original TPR petition.)

         On January 31, 2018, the circuit court held a TPR hearing. Whitney Muller, the assigned family-service worker in this case since April 2017, testified that the children were in their fourth foster-home placement and had been there since August 2017. Muller testified that they are doing "very, very well." She described the children's progress since she was assigned, stating that at both boys were very shy and quiet. She explained that during their current placement, they had transformed and had become engaging, talkative, friendly, and excited. Their teachers told Muller that they had made great strides academically and socially after having been below grade level.

         Muller testified that DHS had not considered a trial placement with Lybrand because she had not complied at any point during this case. She also explained that DHS had not been able to place the boys with King because of his history of true findings of having shaken T.K., causing a subdural hematoma and bone fracture. She confirmed that King had been arrested, charged, and incarcerated for domestic battery due to the incident that resulted in these true findings. Although Muller acknowledged that King had been in nearly full compliance since the last hearing, she clarified that over the entirety of the case there had never been a point in which he had been in full compliance.

         With respect to T.K., Muller recommended that he remain with DHS; that at no point would it be safe for him to return to Lybrand's custody-that her rights be terminated; that due to the true findings against King, T.K. should not be placed in his custody out of concern for his safety; and that it was not in his best interest to ever be in King's custody.

         Muller explained that T.K. was placed in resource services for reading, received occupational therapy where he works on skills that he would utilize in the classroom, such as handwriting, and had been evaluated to need vision therapy. She told the court that the special services T.K. received did not, in any way, prevent him from being adoptable.

         The boys' foster mother-since their placement on August 11, 2017-testified and corroborated Muller's testimony regarding the boys' progress and changes since coming into her care. She further explained that other issues, such as day and night wetting; various fears; and explosive behaviors-which happened multiple times a day, including at school; and an inability to express emotions had greatly subsided. She acknowledged that T.K. does sometimes pout or cry but that he is able to talk through what is going on and is working with his therapist to talk about emotions and how he is feeling. She confirmed that the boys are now outgoing, happy, smiling, and making eye contact. They talk to family and friends, are engaging at school, and are making good progress in school.

         She specified that T.K. is in special education at school and that he is reading below a kindergarten grade level in the second grade. T.K. had a full psycho-educational evaluation through the school, and it found that he has special needs due to traumatic brain injury. He receives services for reading and math, resource services an hour a day, occupational therapy, individual help in the classroom, and participates in a home program for reinforcement. T.K. requires vision therapy because his eyes and brain are not able to work together to track from left to right, which is thought to also be due to the previous brain injury.

         The foster mother confirmed that if the circuit court were to terminate parental rights, it is her desire to adopt both W.K. and T.K. She assured the court that the boys had bonded not only with her but also with her husband and two biological sons. She said that they have no behavioral issues or medical needs that would prevent someone from adopting them should she, for some reason, be unable to adopt them.

         King testified, confirming his subsequent incarceration for third-degree battery from mid-June 2016 through January 2017 after a fight with Lybrand. He then attempted to explain the incident that resulted in the true findings of abuse in 2009, stating that he had shaken T.K. when he awoke to find two-month-old T.K. unresponsive in the bed with him, afraid for T.K.'s life. He did not take T.K. to the hospital until two days later. He pled guilty after being arrested and was incarcerated for ...


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