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Lopez v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

October 31, 2018

PATRICIA LOPEZ APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-16-467] HONORABLE LEIGH ZUERKER, JUDG E

          Tabitha McNulty, 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.

          WAYMOND M.BROWN, JUDGE

         Appellant appeals from the circuit court's order terminating her parental rights to K.R., born 08/26/2003; and G.L., born 05/09/2010.[1] On appeal, appellant argues that (1) the circuit court committed reversible error in terminating her parental rights on a ground that was not pled in appellee Arkansas Department of Human Services' (DHS) termination petition, and (2) the evidence was insufficient to support the circuit court's aggravated-circumstances finding. We affirm.

         The family became involved with DHS through a family-in-need-of-services (FINS) case opened on March 17, 2016, due to the poor school attendance of both K.R. and G.L. as well as that of their eldest sibling.[2] DHS filed a petition for emergency less-than-custody protections order on October 27, 2016, requesting the following protections for the juveniles:

ordering Patricia Lopez to ensure the juveniles are attending school, ensure that [G.L] attends any testing by the school for an [Individualized Education Plan] IEP, attend the medical/developmental appointments for [G.L.], cooperate with [Intensive Family Services] IFS services [sic] and recommendations by the provider, and complete a psychological evaluation along with the recommendations.

         In the affidavit in support of the petition, the family services worker (FSW) stated that DHS "requests court involvement to ensure that [appellant] follows through with services set up by [DHS] and ensure that [appellant] gets the kids to school in a timely manner, especially given the delays and needed services for [G.L.]" The circuit court entered an ex parte order for emergency less-than-custody protections on October 27, 2016.

         A probable-cause order was entered on November 5, 2016, finding-and accepting the parties' stipulation to the same-that probable cause existed at the time the circuit court signed the emergency order and still existed. The order stated:

Custody shall continue with [appellant]. The Less-Than-Custody protections shall remain in place. Specifically, [appellant] shall ensure both juveniles are attending school, [G.L.] attends any testing, [G.L.] attends any medical/developmental appointments, cooperate with IFS services, and submit to a psychological evaluation. The juveniles shall attend school unless there is a doctor's excuse.

         DHS filed a petition for emergency custody and dependency-neglect on December 14, 2016. The affidavit in support thereof stated the following, where pertinent and not duplicative:

[DHS] filed a petition to get the case before the judge. During the course of that involvement, [appellant] was informed on numerous occasions the importance of getting the kids to school and she still failed to do so. [DHS] became aware that [appellant] and the family had been evicted from where they were staying at the Motel 6 due to [appellant's] not working there anymore. [DHS] got it approved for the family to stay at the Rescue Mission and [appellant] chose to stay in a hotel with her boyfriend, Richard Kohlhaas DOB: 10/2/73. The school set up new bus transportation from the Mission to get the kids to school and [appellant] did not avail herself to those services and the kids continued to miss/be late for school.
Intensive family services also attempted to work with [appellant] on obtaining an ID from the Mexican Consulate and [appellant] has failed to get the required paperwork for the consulate. It has also been reported to [DHS] that [appellant] has chosen not to stay at the mission due to them not having room for her boyfriend then lying and saying they were married.
[G.L.] had a temporary IEP due to not being at school enough to complete the full assessment to a full IEP. [G.L.] has completed the assessment and now has a fully functional IEP in place, however, he cannot get the services provided if he is not in school.
During the course of the case [appellant] has been talked to repeatedly about the importance of getting the kids to school in a timely manner. She has repeatedly said that she would. According to the school records that has not happened. There has [sic] also been home visits made and the kids have still not left for school. On a number of occasions, the mother is waiting for a cab even though the school has provided city bus passes and school bus transportation for the juveniles. [DHS] has transported the juveniles to school several times as well.
Before the Court's involvement, the school also made several home visits to the home and talked to [appellant] repeatedly about school attendance.

         Accordingly, DHS had taken a seventy-two-hour hold on the juveniles on December 12, 2016, "due to the educational neglect, unstable housing, and lack of cooperation of services provided and recommendations given." The circuit court entered an ex parte order for emergency custody on December 14, 2016.[3]

         The circuit court entered a probable cause and adjudication order on March 13, 2017, finding that there was probable cause to remove the juveniles, whom it adjudicated as dependent-neglected as defined in the Arkansas Juvenile Code, due to educational neglect. It further found that appellant was homeless at the time of the removal. The goal of the case was reunification. Once-per-week ...


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