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White v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

October 3, 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.


         Deborah White appeals from the Conway County Circuit Court's order terminating her parental rights to her daughter RW, born June 2, 2011, and placing RW in the permanent custody of her father, Ricardo Martinez. On appeal, appellant contends that termination was not in RW's best interest and was in contravention of Arkansas Code Annotated section 9-27-341(a)(3) (Supp. 2017) because permanency was achieved in this case through placement with RW's father. We find no error and affirm the circuit court's order.

         The case began on November 22, 2016, when the Arkansas Department of Human Services (DHS) took emergency custody of RW after police discovered appellant intoxicated and walking down the middle of the highway at night in the rain with RW. Appellant was arrested for public intoxication and endangering the welfare of a minor. A subsequent drug test at the Conway County jail was positive for THC. In an order entered on January 27, 2017, the circuit court adjudicated RW dependent-neglected due to neglect and parental unfitness, inadequate supervision, and failure to protect. The court ordered appellant to submit to random drug screens; obtain and maintain stable and appropriate housing and employment; complete parenting classes; attend counseling; submit to a drug-and-alcohol assessment and complete any recommended treatment; submit to a psychological evaluation and comply with its recommendations; and attend NA/AA meetings twice each month. The goal was reunification with RW. The court also ordered Mr. Martinez to submit to random drug screens; submit to a drug-and-alcohol assessment and complete any recommended treatment; complete parenting classes; and pay $84 a week in child support.

         In a review order entered on May 15, 2017, the court found that appellant had continued to test positive for THC and had been discharged from parenting classes for excessive absences. The court also expressed concern with appellant's "combativeness and argumentative nature" and ordered her to participate in anger-management classes. The court found that Mr. Martinez was complying with the case plan, actively participating in visits, and bonding with RW, but the court noted that he had tested positive for THC.

         In July 2017, the court entered an order granting DHS's request to allow Mr. Martinez to have unsupervised weekend visitations. It found that he had been visiting with RW weekly, unsupervised; was gainfully employed; had maintained stable and appropriate housing; had actively and consistently participated in visitation; and had consistently tested negative for THC. A month later, after a review hearing on August 24, 2017, the court awarded temporary custody to Mr. Martinez. In the review order, the court also found that appellant was unfit and that she could not protect RW's health and safety. The court found that appellant had not complied with the case plan and orders of the court, specifically finding that she had been unwilling to complete drug-treatment recommendations and that she remained "erratic" and "uncooperative" with DHS. The court relieved DHS of providing further services to appellant and changed the goal of the case to placement of RW in the permanent custody of Mr. Martinez.

         On November 16, 2017, the court conducted a permanency-planning hearing, after which it found that it was no longer in RW's best interest to participate in visitation with appellant. The court's order set the goal as permanent custody with Mr. Martinez, and DHS filed a petition to terminate appellant's rights that same day.

         On February 15, 2018, the court held a termination hearing. Michelle Mallett, the DHS worker assigned to the case, testified that it was in RW's best interest for appellant's parental rights to be terminated due to her erratic nature and instability. She testified that appellant had threatened to take RW and "run off with her" and opined that for RW to have safety and security with her father, there needed to be a legal severing of RW's relationship with appellant. Ms. Mallett described interactions with appellant as combative and said that she regularly became agitated with persons providing services, attorneys, therapists, and other authority figures. She testified that appellant had tested positive for THC a dozen times before DHS quit testing her because she refused to be screened. She said that appellant had never received a negative drug screen when tested. Appellant completed a drug-and-alcohol assessment, but she refused the recommended residential treatment. Ms. Mallett also stated that appellant was ordered to participate in counseling but had been discharged by the therapist for noncompliance. According to Ms. Mallett, the therapist had also refused a subsequent request by DHS to work with appellant. Finally, she said that appellant never had unsupervised visitation with RW. Regarding Mr. Martinez, Ms. Mallett testified that he had completed the case plan as ordered and had changed jobs in order to be able to care for RW.

         During Ms. Mallett's testimony, DHS introduced certified court orders from New Mexico concerning appellant's three older children, who had been living with their father in Santa Fe since June 2014. In an order entered on December 7, 2016, while this case was ongoing, the New Mexico court found the following:

It appears that it is difficult for Mother to communicate with Father civilly regarding Father and the children. Father presented numerous text messages that were sent from Mother to Father that are derogatory in nature and border on violation of the Family Violence Protection Act. The text messages sent by Mother to Father also contain veiled threats regarding Mother's demise. In addition, the messages focus on Mother's concerns of having to pay Father child support.

         On March 3, 2017, the New Mexico court entered an order of protection on behalf of appellant's children and their father against appellant. In the order, the court found that appellant had called to speak to the children on December 17, 2016, stating that she was not going to exercise her visitation. According to the court, "She called one child a little s*** and a little f*****," and she sent a ...

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