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Arazola v. Arkansas Department of Human Services

Court of Appeals of Arkansas

February 20, 2019

IRASEMA ARAZOLA APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 1617-232] HONORABLE CYNDY THYER, JUDGE

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

          Ellen K. Howard, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          BART F. VIRDEN, JUDGE

         Irasema Arazola appeals the Craighead County Circuit Court order awarding permanent-relative custody of two of her minor children to their grandparents, Gabriel and Emma Garfias. We affirm.

         I. Relevant Facts

         On June 25, 2017, the Arkansas Department of Human Services ("Department") exercised an emergency hold on Arazola's three children, AF (11/18/02), AA (9/20/10), and CA (3/27/09). In the emergency petition, the Department asserted that it had received a phone call from the Jonesboro Police Department in regard to an allegation of sexual abuse of CA by Arazola's boyfriend, Francisco Cordova. The children's maternal aunt made the allegation, and all three children confirmed the aunt's claim that Cordova had touched CA's genitals. Investigator Leann Vannan and family service worker Tina Green went to the home to conduct a safety assessment. When questioned, Arazola denied that Cordova had sexually abused CA; however, she reluctantly agreed to a protection plan. Arazola submitted to drug testing, which she passed, though she admitted using marijuana. Guns were found in the home, and Arazola claimed that they belonged to her and not Cordova. The serial numbers on the guns matched those that had been reported stolen, and both Arazola and Cordova were arrested. An emergency hold was placed on the children for suspected sexual abuse and for failure to adequately supervise. On June 29, 2017, the circuit court entered an ex parte order for emergency custody based on the allegations in the affidavit.

         On July 14, 2017, the circuit court entered a probable-cause order in which it found that the removal of the juveniles from Arazola's custody was necessary to protect their safety and that it was in the best interest of the children to remain in the custody of the Department. Specifically, the circuit court found that the alleged sexual abuse, Arazola's denial of the abuse, and her love for Cordova were concerning. Although Cordova was incarcerated at that time, the circuit court found that it would be harmful to the children if they were returned to Arazola because the lease to the family home was in Cordova's name and he would return there on his release.

         On October 2, 2017, the circuit court entered an adjudication order stating the goal as reunification with Arazola with a concurrent goal of permanent-relative custody. The circuit court found by a preponderance of the evidence that the juveniles were dependent-neglected based on Arazola's failure to take reasonable action to protect CA from sexual abuse perpetrated by Cordova. The court's determination was also based on Arazola's admission of drug use.

         On November 21, 2017, the circuit court entered a review order allowing Arazola to have visitation supervised by the Garfiases and finding that Arazola had complied with the case plan and the orders of the court. The circuit court ordered that trial home placement with AA and CA could begin, and it found that if things continued to go well in therapy, AF, who had been living with her maternal aunt, Gabriela Wager, could also begin trial home placement.

         On February 22, 2018, the circuit court entered a review order in which it found that trial home placement had begun about two weeks earlier and that AA and CA could continue in trial placement. A permanency-planning hearing was set for April, but it was continued until May 31, 2018.

         On May 31, 2018, the circuit court held the permanency-planning hearing. At the hearing, caseworker Felicia Kirksey explained that an emergency staffing was held on April 3 due to a report from the prosecutor's office that Arazola had requested that the no- contact order be lifted so that she could marry Cordova.[1] At the time, Cordova was incarcerated for possession of firearms by certain persons, theft of property, criminal use of a prohibited weapon, and possession of drug paraphernalia. The charges of second-degree sexual assault and third-degree domestic battery had been nolle prossed. The Department submitted a court report stating it had received information that Arazola had allowed AA and CA to talk to Cordova on the phone in violation of the no-contact order. Kirskey explained that initially Arazola denied that any phone calls had taken place between her and the children and Cordova, and she denied that she had plans to marry Cordova. Eventually, Arazola admitted that she had spoken to Cordova on the phone between twelve and sixteen times and that the children were involved in some of the phone calls. A transcript of one phone call was submitted to the court, and though it was not dated, Kirksey stated that she believed that the call took place after the emergency staffing because Cordova and Arazola discussed the matters discussed at the staffing. Kirksey testified that Arazola encouraged Cordova to continue to write letters to her and the children under a false name but that she instructed him not to call until after her court date.

         Kirskey testified that at the emergency staffing, Arazola agreed to change her phone number, to cease phone contact with Cordova, and to deliver Cordova's property to his attorney. Arazola did change her number, and Kirksey testified that Cordova's property had not been delivered to his attorney but that Arazola told her the property had been delivered to his family. Arazola told Kirksey she had changed the lease, which was now in her name, but Arazola had not provided proof of the change. Kirksey also testified that Arazola had put $800 into Cordova's commissary account, although she claimed the money had been from Cordova's tax refund.

         Kirskey testified that after the staffing, CA had begun acting out and had been aggressive toward other children at school and that she believed the change in his behavior was due to his contact with Cordova. A home study showing that the Garfiases' home was appropriate for AA and CA was also submitted to the court, and Kirksey also testified that she believed that the ...


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