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Moore v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

January 23, 2019



          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.

          KENNETH S. HIXSON, Judge.

         Appellant Niesha Moore appeals after the Hot Spring County Circuit Court filed an order terminating her parental rights to B.S. (DOB 12-18-2016).[1] Appellant's sole argument on appeal is that termination of her parental rights was not in B.S.'s best interest. We affirm.

         I. Facts

         On February 8, 2017, the Arkansas Department of Human Services (DHS) filed a petition for ex parte emergency custody and dependency-neglect of B.S. In the affidavit attached to the petition, DHS stated that it was reported that both appellant and B.S. tested positive for cocaine at B.S.'s birth. A plan of safe care was put in place, and a team attempted to work with appellant to keep B.S. safe in her home. However, appellant was subsequently arrested and placed in jail on January 3, 2017, on unrelated charges. DHS reported that appellant had left B.S. in the care of appellant's alleged sister and brother-in-law, Starkeisha and Jimmy Fricks. After appellant's release on February 1, 2017, she returned to the Fricks's home. The next day, DHS made a home visit, and appellant admitted using cocaine and drinking gin in the presence of B.S. She additionally tested positive for cocaine and methamphetamine. Thereafter, DHS placed a seventy-two-hour hold on B.S. due to the allegations of neglect, drug abuse, and parental unfitness. The trial court granted the petition, finding that probable cause existed for the removal. The trial court found that there was probable cause to believe that B.S. was dependent-neglected and that it was contrary to the welfare of B.S. to remain with appellant.

         Subsequently, a probable-cause hearing was held on February 14, 2017, and the trial court filed a probable-cause order. At the hearing, appellant requested permission to enter drug treatment, and the trial court ordered DHS to expedite drug treatment. DHS filed a court report on March 31, 2017. In that report, DHS stated that B.S. had been placed in a provisional-foster-home placement with her maternal aunt. It also stated that appellant had been arrested in Saline County on a failure-to-appear charge and that appellant still had several pending charges in Malvern, Arkansas. Appellant further tested positive for cocaine on March 9, 2017, which was later confirmed by a lab test. Finally, the report noted that appellant had completed her drug-and-alcohol assessment, which had recommended that she receive inpatient drug treatment.

         At the May 9, 2017 adjudication hearing, appellant stipulated that B.S. was dependent-neglected, and as such, the trial court found B.S. dependent-neglected in its order. The goal was set as reunification. A review hearing was held on August 8, 2017. Appellant was not present as she was incarcerated at that time, but her attorney appeared on her behalf. Additionally, multiple relatives appeared, and the trial court ordered DHS to conduct a home study on three of B.S.'s relatives: Dorothea[2] Roberson, maternal great-grandmother; Patricia Moore, maternal grandmother;[3] and Angela McClendon, paternal grandmother. The trial court further found that appellant had not complied with the case plan or demonstrated progress. The trial court noted that at that time, appellant was incarcerated for convictions of battery and aggravated assault that occurred in May 2017.

         The next review hearing took place on October 24, 2017. After that hearing, the trial court found that appellant had partially complied with the case plan in that she had completed parenting and anger-management classes while incarcerated in the Arkansas Department of Correction. Dorothea Roberson, Patricia Moore, and Angela McClendon were granted visitation on Fridays from 9:00 a.m. to 10:00 a.m. at the Hot Spring County DHS office. The trial court further found that DHS had denied the home studies on Dorothea Roberson and Patricia Moore and that B.S. should not be placed in either home. Angela McClendon failed to return the paperwork to be considered for placement.

         After the February 27, 2018 permanency-planning hearing, the trial court changed the goal to adoption and authorized DHS to file a petition for termination of parental rights. DHS filed a petition for termination of parental rights on March 15, 2018. DHS alleged four grounds for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2017) that were applicable to appellant, including the failure-to-remedy, subsequent-factors, criminal-sentence, and aggravated-circumstances grounds.

         At the termination hearing, appellant testified that she was currently incarcerated for violent offenses unrelated to her history of drug abuse and that her sentence was for a total of five years. Although she testified that she thought she would be released sooner, she stated the earliest she could be released was a year from then. She admitted that she had completed inpatient treatment during the pendency of the case but had immediately relapsed and used cocaine. Additionally, appellant admitted that she had not found gainful employment before her most recent incarceration. She instead stated that she had received Social Security benefits and has bipolar disorder. However, appellant explained that she planned to "get [her] life together and be there for B.S." after her release. She stated that in the meantime, she desired to sign a guardianship to her grandmother, Dorothea Roberson, rather than having B.S. continue to live in foster care with her best friend and B.S.'s godmother, Starkeisha Fricks. Finally, appellant testified that she had lied to DHS about Ms. Fricks being her sister and further testified that Ms. Fricks is not related to her at all.

         Evidence was introduced to show that on March 20, 2017, appellant had pleaded guilty to second-degree battery and was sentenced to sixty months' probation. However, her probation was subsequently revoked, and on July 17, 2017, she was sentenced to serve forty-eight months' incarceration. In a separate case, appellant pleaded guilty to aggravated assault and second-degree battery and was sentenced on June 13, 2017, to serve sixty months' incarceration. In yet another case, appellant pleaded guilty to second-degree battery ...

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