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Day v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

October 17, 2018



          Tina Bowers Lee, 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 children.

          BRANDON J. HARRISON, Judge.

         Andrea Day appeals the termination of her parental rights to her three children. She argues that the circuit court erred in finding that termination was in the children's best interest because (1) the Arkansas Department of Human Services (DHS) presented insufficient evidence to support a finding of adoptability and (2) the Cherokee Nation expert witness expressed a preference that the children be placed together. We affirm.

         On 1 November 2016, the Washington County Circuit Court ordered an emergency seventy-two-hour hold of ten-year-old T.D., five-year-old D.D., and two-year-old A.D. after the children's school principal requested that a FINS (Family In Need of Services) case be opened. The children initially could not be located but were later found behind an EZ-Mart looking for food in a dumpster. On November 7, DHS petitioned for emergency custody of the children, and the attached affidavit noted five previous true findings against Day dating back to 2007 for inadequate supervision, newborn illegal-substance exposure, and inadequate food.

         The circuit court ordered the children into emergency custody and later found probable cause to continue custody with DHS. The probable-cause order also directed DHS to notify the Cherokee Nation of the proceedings, as it was believed that the children were eligible for membership in the Cherokee Nation of Oklahoma. The Cherokee Nation Indian Child Welfare program confirmed that the children qualified as "Indian children," and Nicole Allison intervened in the case on behalf of the Cherokee Nation.

         In December 2016, the circuit court adjudicated the children dependent-neglected due to neglect and parental unfitness. The goal of the case was reunification of the children with Day, and she was ordered to cooperate with DHS, participate in counseling, abstain from illegal drugs or alcohol, submit to random drug screens, and obtain and maintain stable housing and employment. The court also found that the Indian Child Welfare Act (ICWA) applied to the children and that there was good cause to deviate from ICWA's placement preferences "due to the children's special needs and behaviors and due to the current lack of ICWA-compliant placement options." AT that time, the court found that it was in the children's best interest to be placed separately.

         In April 2017, the circuit court conducted a review hearing and found that Day had not complied with most of the court orders and the case plan and that she had made minimal progress toward mitigating the causes of the children's removal. The case was reviewed again in August 2017, and the court found that Day had not complied with any of the court orders or the case plan. In October 2017, the court entered a permanency-planning order that authorized a plan for adoption with DHS filing a petition for termination of parental rights. The order noted that Day was in total noncompliance and had not contacted DHS since the last hearing. The court found that Day had not shown stability or sobriety and had not availed herself of the services provided by either DHS or the Cherokee Nation.

         In November 2017, DHS petitioned to terminate Day's parental rights. It alleged the statutory grounds of failure to remedy, failure to maintain meaningful contact, and aggravated circumstances. The circuit court convened a termination hearing on 1 February 2018.[1] Day did not attend the hearing. Nicole Allison, the Cherokee Nation child-welfare specialist, testified that Day had not taken advantage of services offered to her through the Cherokee Nation, such as transportation and housing assistance, drug treatment, counseling, and health care. Allison also said that DHS had provided active efforts to Day, but those efforts had failed. Allison opined that there was evidence beyond a reasonable doubt that continued custody with Day would likely result in serious emotional or physical damage to the children. She explained that the Cherokee Nation had no objection to the fact that the children were not currently placed together but said, "The tribe would like to see the kids be placed together once they can."

         Sarah Franklin, a therapist for therapeutic foster care (TFC), testified that she had been seeing D.D. since the fall of 2017. She said that D.D. had been diagnosed with ADHD and disruptive behavior disorder, NOS (not otherwise specified) and that he was on medication. She characterized his progress as "back and forth" but said that he had overall made progress and had decreased tantrums. She also noted that when T.D. was placed in the same home as D.D. for a short time, D.D. showed some regression. Franklin said that she would like to see D.D. transition out of TFC and either be adopted or be placed with a relative.

         Whitney Muller, the DHS caseworker for all three children, testified that D.D. was currently in TFC, A.D. was in a local foster home, and T.D. was in residential treatment in Little Rock. Muller explained that A.D. was doing very well, that she was adoptable, and that her foster family was a potentially adoptive placement. Muller said D.D. had made progress in his TFC and that he was adoptable as well. As for T.D., Muller stated that he had been struggling lately and dealing with a lot of anger surrounding his mother's abandonment. She opined that "it will take the right family" but he was adoptable.

         Muller said that Day had not been compliant at any point in the case and that she had last visited the children in April or May 2017. Day had also recently been arrested on charges of possession of methamphetamine, possession of controlled substance, and furnishing prohibited articles. Muller agreed that Day had not demonstrated an ability to keep the children ...

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