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
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
WAYMOND M.BROWN, JUDGE
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. 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
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. DHS filed a
petition for emergency less-than-custody protections order on
October 27, 2016, requesting the following protections for
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.
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.
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
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
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
[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
Before the Court's involvement, the school also made
several home visits to the home and talked to [appellant]
repeatedly about school attendance.
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
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 ...