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Isbell v. Arkansas Department of Human Services and Minor Child

Court of Appeals of Arkansas, Division II

February 20, 2019

CHELSI ISBELL AND JANET NICHOLAS APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 42BJV-17-13] HONORABLE TERRY M. SULLIVAN, JUDGE

          Allred Law Firm, by: Allison R. Allred, for appellant Chelsi Isbell.

          Alexander Law Firm, by: Hubert W. Alexander, for appellant Janet Nicholas.

          Callie Corbyn, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

          ROBERT J. GLADWIN, JUDGE

         Chelsi Isbell and her mother, Janet Nicholas, appeal the Logan County Circuit Court's order terminating Chelsi's parental rights to A.I. (born June 20, 2016) and denying Janet's custody petition. Chelsi argues that (1) the circuit court erred by terminating her parental rights; (2) the circuit court abused its discretion by denying her motion for continuance; and (3) appellee Arkansas Department of Human Services (DHS) failed to make reasonable accommodations for her in accordance with the Americans with Disabilities Act (ADA). Janet argues that the circuit court clearly erred by (1) refusing to place the child with her and (2) terminating Chelsi's parental rights. We affirm.

         I. Facts

         DHS filed for emergency custody and dependency-neglect on March 10, 2017, and the attached affidavit alleged that police officers had encountered Chelsi walking down the street with A.I. Chelsi told them she was going to the store to get formula for the baby and that she had no food or running water at home. She told them she did not have money and that she planned to steal the formula. The officers went to Chelsi's home to do a welfare check. Chelsi told them she did not have family. When they asked her if Janet was her mother, she said that Janet was a woman who had moved her from Little Rock to Logan County to find a house and that she did not know Janet. Chelsi said that her water had been turned off for two weeks and that her electricity would be turned off soon. When told that DHS would take A.I. into custody, Chelsi was not upset or concerned, and she said, "Ok, what about me?" The ex parte order followed.[1]

         Chelsi stipulated to the emergency conditions necessitating removal at a probable-cause hearing on March 17. She was granted supervised visitation and ordered to undergo drug screening; attend parenting classes; obtain a psychological evaluation; attend counseling; watch "The Clock is Ticking" video; and obtain stable housing, income, and transportation. DHS was ordered to consider any appropriate family member for A.I.'s placement. Janet filed a motion to intervene on May 2 asking that she be granted visitation and custody as A.I.'s grandparent. Attached to the intervention motion was a custody petition alleging that she had a significant relationship with A.I., that DHS had arbitrarily rejected her for family placement, and that it was in the child's best interest to be placed in her custody.

         A hearing on May 2 resulted in a second probable-cause order finding that A.I. was dependent-neglected and that she had been subjected to inadequate food, environmental neglect, and failure to protect. The goal was set for reunification, and Chelsi was ordered to submit to a drug-and-alcohol assessment and follow the recommendations; visit A.I. regularly; comply with her case plan; and remain in contact with her caseworker. DHS was ordered to conduct a home study on Janet.

         At the June review hearing, the circuit court found that A.I. continued to need services and ordered that she remain in DHS custody. The goal remained reunification, and the court noted that Chelsi had not contacted DHS since the last hearing or allowed DHS entry into her home, nor had she attended her psychological-evaluation appointment. Janet was permitted to intervene in the case, and the court noted its concerns about Janet, including her problem with alcohol. Janet had a second DUI within a five-year period in March 2015, and her driver's license was suspended, after which an interlock device was placed on her vehicle. The court also found that she owned Nick's Village Pub, which was a bar that served alcohol and was open until 5:00 a.m.; however, Janet had testified that she did not believe it was a bar.

         A hearing was held on October 17, and the circuit court found that Janet was "skating the issue on her alcohol use." The hearing was continued until December 5, and at its conclusion, the court ordered that the goal of the case be changed to adoption with DHS to file a petition for termination of parental rights. The court found that DHS had made reasonable efforts and that

8. The mother, [Chelsi], has not complied with the case plan in that she has no income, she failed to show for her hair-follicle appointment, she failed to show up for her psychological-evaluation appointment, she failed to start counseling or parenting classes, she has not contacted [DHS], and she has not visited her child since the case started. She was involuntarily committed by the State of Arkansas in July and spent seven days in acute care.
9. The Court heard testimony at this hearing from the following witnesses in regards to Janet Nicholas's petition for custody: Cynthia Cagle, a licensed social worker and therapist who evaluated Janet, her home, and business for a SAFE home study; Dr. Kenneth Counts, a psychologist and neuropsychologist, who evaluated Janet; and Janet, the grandmother. The Court also considered the testimony from FSW Pam Feemster and Janet Nicholas from October 17, 2017, when this review hearing started. The Court considered the Petition of the Intervenor, Janet Nicholas for custody of the minor child and completely denied her any relief, and ordering her dismissed with prejudice from the case and from further participation in it.
12. [sic] The Court made the following findings based upon the testimony and evidence: The Court will not place [A.I.] with Janet due to her minimization of her use of alcohol and her dishonesty and lack of details in her testimony to the Court and others about her history of alcohol use, driving-while-intoxicated convictions, and her ownership of a pub. Cynthia Cagle, who evaluated Janet for a SAFE home study, reported that Janet told her that she had a DWI in 2012 and has not been arrested since. She told Dr. Counts that she had one DWI. But, she testified at the October l7th hearing that she actually had three DWIs, one in 2003, one in 2012, and the last one in Saline County or Searcy in 2015. At today's hearing, the Court found out that the 2015 DWI was in Pope County, not Saline County or Searcy, and that Janet had a fourth DWI in Greers Ferry in 2007 that she failed to testify about at the October 27th [sic] hearing. The Court also noted that Janet testified previously that she owns Nick's Village Pub and that it was a restaurant and not a bar but then acknowledged that it stays open to 5:00 a.m. in the morning. It sells alcohol, and has a happy hour. Janet is not participating in any after care like AA meetings or counseling for alcohol issues and testified today that she does not have an alcohol problem. Also, Janet is enabling her daughter, Chelsi, who has not come forward to the Court. The Court finds that even though there is a statutory presumption for relative placement, [A.I.] cannot be safely placed with Janet and that it is in the best interests of [A.I.] to remain in her current foster-home placement.

         The order was filed on January 5, 2018, with a Rule 54(b) certificate attached. Ark. R. Civ. P. 54(b) (2018). Janet appealed; however, this court dismissed her appeal without prejudice. Nicholas v. Ark. Dep't of Human Servs., 2018 Ark.App. 471, 561 S.W.3d 752.

         In the meantime, DHS petitioned for termination of Chelsi's parental rights, alleging abandonment, failure to remedy the conditions that caused removal, and aggravated circumstances. Ark. Code Ann. § 9-27-341(b)(3)(B)(iv), (vii)(a), and (ix)(a) (Supp. 2017). Chelsi moved to dismiss the petition based on deficient service. In response, DHS filed a motion to continue, allowing Chelsi more time to respond to the termination petition. See Ark. R. Civ. P. 12(a)(1) (2018) (an incarcerated defendant has sixty days to file an answer after being served). Chelsi also filed a motion to dismiss, arguing that DHS sought to discriminate against her based on a disability protected by the ADA. She asked that Arkansas Code Annotated section 9-27-341(b)(3)(B)(iv), (vii)(a), and (ix)(a) be declared discriminatory and violative of the ADA because of the disparate impact as applied to her. The circuit court did not rule on this motion. On April 4, Janet filed a petition for custody alleging that since her dismissal, a material change in circumstances "concerning the statutorily preferred relative placement for custody" had occurred.

         On April 27, Chelsi's counsel was substituted by order. Chelsi moved for a continuance on May 1, arguing that the hearing was set for May 2 and that she was "inpatient" at Quality Living Center for substance-abuse and mental-health issues. She claimed to be mentally incapable of attending and assisting her counsel at the May 2 hearing. Attached was a letter from Quality Living Center verifying Chelsi's ...


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