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Androff v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

December 12, 2018

MICHELLE ANDROFF APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT [NO. 12JV-16-126] HONORABLE LEE WISDOM HARROD, JUDGE

          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 child.

          RITA W. GRUBER, CHIEF JUDGE

         Michelle Androff appeals from the circuit court's order terminating her parental rights to RA, born 8/25/2008.[1] For reversal, Michelle argues (1) that the Arkansas Department of Human Services (DHS) failed to present sufficient evidence to support the grounds for termination and (2) that the circuit court erred in terminating her parental rights because DHS offered insufficient evidence that termination was in RA's best interest. We affirm.

         I. Procedural History

         This termination action began when DHS took emergency custody of RA on September 21, 2016, after learning that Jack Androff, RA's biological father and a convicted sex offender, was living in the home with Michelle and RA in violation of a no-contact order between Jack and RA. However, DHS involvement with the Androff family began in 2012.

         RA and her siblings, JA1(11/26/96) and JA2(12/03/98), [2] were adjudicated dependent-neglected on October 24, 2012, [3] based on a true finding of sexual contact between JA1 and the victim, AM, Michelle's granddaughter. The adjudication order also noted a pending investigation involving Jack as the alleged offender and AM and RA as the alleged victims. It was alleged that Jack had asked AM and RA to perform oral sex on him. The adjudication order provided that Michelle was to retain custody of RA and prohibited Jack from having any contact with RA.

         On November 1, 2012, DHS took emergency custody of RA after DHS learned that Michelle had allowed Jack to trick or treat with RA on October 31, 2012. Following a probable-cause hearing, the court found that RA should continue in the custody of DHS and that Jack have no contact with RA. During a permanency-planning hearing in January 2014, Jack admitted having sexually abused AM, as well as AM's mother MM (Michelle's daughter and Jack's stepdaughter) while she had been a minor living in the home. The court ordered that RA remain in DHS custody, Michelle have supervised visitation with RA, and Jack have no visitation with RA.

         On January 7, 2014, Jack pleaded nolo contendere to second-degree sexual assault (with the victim being five years old) and was sentenced to five years' probation and required to register as a sex offender.

         A permanency-planning order was entered on March 20, 2014, providing that custody could not be placed with Michelle and that the goal of the case plan was to place custody of RA with a parent, guardian, or custodian. The court found that Michelle was compliant with her case plan and making significant progress in remedying the condition that caused removal but had concerns about the testimony involving her family and Jack's testimony regarding the "generational curse" that is affecting his family. The court found that Jack, at the hearing, had admitted sexually abusing AM, his stepdaughter's child, when AM was living in his home, as well as AM's mother when she was a minor living in his home. The court ordered that Jack have no contact with RA.

         In a permanency-planning order filed March 9, 2015, the circuit court continued custody of RA in DHS and set the goal of reunification with Michelle with a concurrent goal of permanent relative custody. The court found that Michelle was making substantial progress to complete the goals and tasks of the case plan. The court ordered that Jack have no contact with RA. A review order filed June 10, 2015, indicated that RA remained in the legal custody of DHS but had been in a trial placement with Michelle since May 6, 2015. Again, the court ordered that Jack have no contact with RA. After a review hearing on June 17, 2015, DHS returned custody of RA to Michelle, specifically noting the standing no-contact order between Jack and RA.

         On April 4, 2016, the circuit court held a review hearing and found that permanency with Michelle had been achieved. The resulting review and closure order, which was not filed until August 31, 2016, specifically stated that the court "denies the request of Jack Androff for visitation with his family" and that the no-contact order between Jack and RA remained. The court closed the case.

         The current action began on September 21, 2016, when DHS exercised a seventy-two hour hold on RA after it was determined that the no-contact order between Jack and RA had been violated. On September 23, 2016, DHS filed a petition for emergency custody of RA, alleging that RA was dependent-neglected. The affidavit in support of the petition indicated that RA was interviewed at school and told the family service worker that Jack lived in the home with her. RA told the worker that she was told to say that she has not seen her father if anyone ever asked. The affidavit also stated that Michelle was interviewed and admitted that Jack was living in the home with her and RA. She stated that she did not have concerns about Jack's being around RA and that she did not believe his history of abuse was an accurate description of Jack as a person. Jack refused an interview but spoke with the family service worker by phone. The affidavit stated that Jack wanted the family service worker to know "he has turned his life over to Christ and he wanted to raise his family in the ways of the Lord." The affidavit suggested that both Jack and Michelle thought they were justified in their actions because the DHS case was closed.

         The circuit court granted the ex parte order for emergency custody on September 23, 2016. On October 12, DHS filed a motion for no-reunification services and petition for termination of parental rights on the grounds of aggravated circumstances, subsequent factors, and that the juvenile or a sibling was dependent-neglected as a result of neglect or abuse that could endanger the life of the child, any of which was perpetrated by the juvenile's parent or stepparent. The petition alleged that Jack is registered as a level-three sex offender and had not been legally permitted to see RA since 2012; and that Michelle has violated no-contact orders between Jack and RA-going as far as remarrying Jack after the DHS case closed in April 2016-where the circuit court specifically ordered both parents that Jack was to have no contact with RA and was not to reside with the family. The petition further alleged that Michelle was not capable of protecting RA's health, safety, and welfare; RA was adoptable; and it was in RA's best interest to be "opened up" for permanent placement. DHS's petition outlined the lengthy history with this family.

         An adjudication hearing on the dependency-neglect petition took place on December 14, 2016. The court found that Michelle and Jack resumed a relationship and remarried on August 13, 2016; Jack and Michelle began living together as a family in violation of the no-contact order; RA was dependent-neglected based on Michelle's failure to protect RA from abuse by allowing her to have contact with Jack; RA was dependent-neglected ...


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