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Lancaster v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

November 14, 2018

CHRISTOPHER LANCASTER, LAURA LANCASTER APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE CL AY COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 11WJV-16-17] HONORABLE MELISSA BRISTOW RICHARDSON, JUDGE

          Terry Goodwin Jones, for appellant Laura Lancaster.

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Christopher Lancaster.

          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.

         Appellants filed separate briefs appealing from the circuit court's order terminating their parental rights to W.W., born 10/11/2008; J.L., born 07/25/2013; and A.L., born 01/20/2017. On appeal, Christopher argues that the circuit court erred in (1) failing to timely appoint counsel to represent him and (2) finding that the grounds pleaded in support of termination were sufficiently proved. Laura[1] argues on appeal that the circuit court erred in terminating her rights to the children based on the (1) twelve-months-out-of-the-home-without-remedy ground and the (2) other-subsequent-factors ground. We affirm.

         Appellee Arkansas Department of Human Services (DHS) initiated contact with appellants on December 3, 2015, after receiving a hotline report of environmental neglect, drug use, domestic violence, the children being "filthy[, ]" and lack of food. Family services worker (FSW) Katie Wells made contact on the same date; she found adequate food and observed no health or safety concerns. Appellants denied drug use, domestic violence, and a lack of food. Unsuccessful attempts to visit appellants were made on January 4 and 6, 2016, but a successful attempt was made on January 11, 2016. Again, there was adequate food and no health or safety concerns were found; however, appellants both refused drug screens. Because the hotline report could not be substantiated, the case was closed on January 13, 2016.

         A second hotline report was accepted on February 9, 2016, as "Differential Response with the allegations of environmental neglect and inadequate food." The report specifically stated that "there was no heat in the home and it had been snowing in Corning for the past two days and the wind chill was 18 . . . [and W.W.] was filthy and dirty and had a body odor." When Wells made contact with appellants on February 10, 2016, she observed that the gas line had been cut-the landlord was supposed to be fixing it-so space heaters were being used and the bathroom was "very dirty." Laura refused cleaning supplies offered by Wells and said she understood that W.W. had to be bathed nightly.

         Wells returned on February 17, 2016, to a "neat and clean" home with "[n]o health or safety concerns observed"; Laura affirmed that W.W. was taking baths nightly. Despite a hiccup on February 19, 2016, that was virtually duplicative of Wells's February 10 visit but which was corrected when Wells visited a second time on the same date-the differential-response case was closed on February 19, 2016.[2]

         DHS received a third hotline report on April 6, 2016. After receiving a call from a "concerned citizen" about the family, Corporal Smith went out to the home for a probation search.[3] Upon Corporal Smith's arrival, Christopher fled and Corporal Smith found Laura in the home "severely under the influence of methamphetamine[, ]" so much so that he had to change J.L.'s diaper-which was "soiled and swinging between his legs"- after Laura "fidgeted" in her attempt to change him but was ultimately "unable to complete the task." Corporal Smith stated that "the home was not appropriate for the children due to the home being cluttered with trash and furniture and there was a roach infestation. He stated there was not food in the home and that [W.W.'s] clothing was filthy."

         When Wells met Laura and the children at the police station, Laura was "swaying her head from side to side, gagging, and fidgeting" and was "unable to carry on a conversation . . . due to being under the influence." Wells went to the home and essentially confirmed what Corporal Smith had reported, among other things such as a kitchen sink "overflowing with dirty dishes" and various types of debris obscuring the floor from view. A seventy-two-hour hold was taken on April 6, 2016. DHS filed a petition for emergency custody and dependency-neglect of W.W. and J.L. on April 8, 2016. The circuit court entered an ex parte order for emergency custody on the same date finding:

[DHS] has been involved with the family since 12/3/15, and that the following services, as outlined in the affidavit, were provided to the family: home visits, drug screens, offer of cleaning supplies, differential response case which was closed 12/19/1[5].[4] These services did not prevent removal because on 4/6/16, the mother was severely under the influence of methamphetamine and was arrested during a probation check at the home, and there was no caregiver for the children.

         The circuit court entered a probable-cause order on April 12, 2016, following a hearing on the same date for which neither Christopher nor Laura was present. Finding that probable cause existed and continued for the children's removal, the goal of the case was reunification. Both parents were awarded supervised visitation.

         The circuit court entered an adjudication order on June 10, 2016. Again, neither parent was present. The children were adjudicated dependent-neglected due to environmental neglect and parental unfitness. The goal of the case was reunification with a concurrent plan of adoption.

         The circuit court entered a review order on September 21, 2016. Christopher appeared in court for the first time at the review hearing.[5] The order noted that the circuit court accepted and approved the stipulation of the parties and made the findings and orders contained therein based on said stipulations.[6] Regarding the parties' compliance, the circuit court made the following findings:

The mother has partially completed parenting classes. The mother has completed 3 sessions of parenting classes, but has cancelled multiple sessions. The mother did not attend her psychological evaluation. The mother stated to the worker that she did not go to her psychological appointment due to feeling funny and that she just could not go. Due to her missing the appointment the mother's psychological evaluation is scheduled for December 2016. The mother missed several visits with her children. In addition, the mother tested positive for illegal substances. The parents' home continues to be cluttered and dirty.
. . . .
The father has completed one parenting class. The father has cancelled multiple parenting sessions. The father did submit to a drug and alcohol assessment. However, the father has failed to follow the recommendation of inpatient substance abuse treatment. In addition, the father continues to test positive for illegal substances. The father has missed several visits with the children. The father states he is too tired from[7] working to attend the visitation sessions. The parents continue to have a cluttered and dirt [sic] home.

         Accordingly, both parents were found to be in partial compliance with the case plan.

         DHS filed a petition for emergency custody and dependency-neglect of A.L. on January 25, 2017, following her January 20, 2017 birth. A hotline report had been made stating that Laura had given birth to A.L. at home and that Laura was lying in her bed while A.L. was on the floor when the ambulance staff arrived. The affidavit in support stated:

FSWS Howard confirmed that Laura's older children, [W.W. and J.L.] are in foster care, and the permanency planning hearing is scheduled for March of this year. FSWS Howard reported that Laura has severe schizophrenia and will not consistently take medication. FSWS Howard reported that very little progress has been made throughout the foster care case currently opened on Laura's children; and [DHS] had planned to remove [A.L.] when born.
FSW [Allison] Swann contacted [Arkansas Methodist Medical Center] and spoke with RN Jennifer Melvoy. RN Melvoy told FSW Swann that Laura had contacted the ambulance upon giving birth to [A.L.] but when medical staff arrived, Laura could not figure out why she was bleeding. . . . RN Melvoy stated that Laura was also hospitalized for monitoring and it took her several hours of being in the hospital to understand that she had a baby and for a significant period of time, did not understand why she was bleeding. RN Melvoy explained that due to [A.L.] being born at home, she will be monitored for several days in the hospital[.]

         The affidavit further noted DHS's involvement with Laura. A seventy-two-hour hold was taken on A.L. on January 20, 2017, though she remained in the hospital receiving antibiotics through January 24, 2017. An ex parte order for emergency custody was entered on January 25, 2017.

         The circuit court entered a stipulated probable-cause order as to A.L. on January 26, 2017. Neither parent was present for the hearing, which was held on the same date. In its February 8, 2017 adjudication order, the circuit court adjudicated A.L. dependent-neglected due to "Parental Unfitness and inadequate supervision as well as prior adjudication of siblings for the same grounds." Both parents were present at the adjudication hearing.[8] The goal of the case, as to A.L., was reunification with a concurrent plan of "relative placement, permanency and adoption."

         Though the order-regarding W.W. and J.L. only-was not entered until September 20, 2017, the circuit court held a permanency-planning hearing on May 11, 2017. Both parents appeared, albeit Christopher appeared again by phone. The circuit court changed the goal of the case to adoption and authorized DHS to file a petition for termination of parental rights (TPR). Noting that Christopher had not yet been appointed counsel and was requesting such an appointment at that time, it found Christopher to be ...


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