FROM THE LOGAN COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO.
42BJV-17-13] HONORABLE TERRY M. SULLIVAN, JUDGE
Law Firm, by: Allison R. Allred, for appellant Chelsi Isbell.
Alexander Law Firm, by: Hubert W. Alexander, for appellant
Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
J. GLADWIN, JUDGE
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.
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
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.
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.
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.
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.
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.
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.
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 ...