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Hopfner v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

April 24, 2019



          Tabitha McNulty, Arkansas Public Defender Commission, for appellant Philip Hopfner.

          Lightle, Raney, Streit & Streit, LLP, by; Jonathan R. Streit, for appellant Robin Hopfner.

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


         In this termination-of-parental-rights case, both parents, appellants Robin and Philip Hopfner, separately appeal the Madison County Circuit Court's order terminating their parental rights to JH.[1] The Hopfners argue that the circuit court erred in its determination because termination of their parental rights was not in the child's best interest. We affirm.

         I. Relevant Facts

         On April 3, 2017, the Arkansas Department of Human Services ("Department") filed a petition for emergency custody and dependency-neglect regarding JH (10/16/14), NP (03/26/02), and JP (08/01/05).[2] In the affidavit to the petition, the Department stated that on March 16, 2017, it received a report of child maltreatment and neglect, and family service worker Miranda Hall went to the Hopfners' home where she performed a drug screen on Philip, who tested positive for methamphetamine, amphetamines, MDMA, and THC. Philip did not appear to be intoxicated at that time. Robin failed to produce a sample and dropped the test cup in the toilet. Hall advised the Hopfners to remain drug free and to clean the home, and she told them that she would be back in a week to check in. When Hall returned, the home had been cleaned, and Philip tested negative for all substances. Robin again dropped her cup in the toilet but produced a clean sample later, and Hall suspected sample tampering. Hall advised the Hopfners that she would return in a week.

         On March 27, Hall received word that Robin had become suicidal, and she went to the Hopfners' home where she found Robin distraught. Philip had driven away with JH without placing the child in a car seat. A marijuana plant was found in the home, and Philip was later arrested for manufacturing drugs and child endangerment. On March 29, 2017, Hall returned to the home and talked to Robin, who admitted using methamphetamine and that she used someone else's urine for the drug test. Robin stated that she knew Philip grew marijuana in the home and that she believed he had also used someone else's urine for the drug test. Robin explained that she had instructed JP and NP to lie to the Department. Hall obtained text messages between Robin and Philip and the two older children regarding methamphetamine addiction, selling drugs, leaving the children alone for long periods of time, and telling them what to say to the Department. The family had been involved with the Department since 2006; however, no true findings of abuse or neglect had ever been made against the Hopfners.

         The circuit court entered an emergency order on April 3, 2017. In the order, the circuit court found that the children were dependent-neglected and that it was contrary to their welfare to return them to Robin's custody due to her drug use and pending criminal charges.[3] Philip was incarcerated at the time of removal. On April 6, the circuit court entered a probable-cause order finding that due to both Philip's and Robin's drug use, Philip's current incarceration on felony drug charges and parole violation, and Robin's instability, it was in the children's best interest to remain in Department custody. Philip was allowed to have visitation, but Robin was ordered to have no contact with the children. The Department was ordered to provide services, including drug-and-alcohol assessment and counseling, and the Hopfners were ordered to remain sober, attend counseling, submit to assessments, obtain stable employment, maintain a stable home, demonstrate the ability to protect their children from harm, resolve all criminal issues, and remain in contact with the Department and their attorneys. The juveniles were placed with their maternal aunt and uncle, Jennifer and Timothy Williams.

         On June 1, the circuit court entered an adjudication order in which the it found by clear and convincing evidence that JH, JP, and NP were dependent-neglected. Specifically, the court found that the Hopfners used illegal drugs and failed to ensure the children's safety. The court found that "mother and father exposed the children to a lifestyle of drugs," and the two older children had been diagnosed with PTSD. The court allowed the Hopfners to have visitation in a therapeutic setting with the approval of the children's counselors. The Hopfners were ordered to watch "The Clock is Ticking" video and obey all orders of the court. The goal of the case was reunification.

         On August 16, 2017, Philip filed a motion for an emergency hearing regarding visitation with JH. On September 22, the court held a review hearing, and the pursuant order was entered on September 26. In the order, the circuit court noted that Philip had produced a certificate of completion of parenting classes and that Robin had completed four hours of parenting classes. The circuit court addressed Philip's August motion regarding visitation, finding that "Robin and Philip Hopfner placed these children in a living hell (see adjudication order). These 3 children are all suffering from post-traumatic stress disorder!" The court found that the Department had "acted to the detriment of the kids" by allowing JH to go on unauthorized, unsupervised visits with the paternal grandparent and "various family members under the guise of 'provisional' placement or other such 'policy'". The circuit court found that Robin and Philip had complied with some of the its orders but found that custody could not be returned to the Hopfners because of the extreme trauma from which the children had not yet recovered and that neither Robin nor Philip had demonstrated the ability to safely parent the children. The circuit court ordered that neither parent was allowed visitation with the children.

         On December 21, 2017, the circuit court entered a review order in which it found that the Department's custody should continue even though the Hopfners had complied with all the court orders and the case plan. The court found that the Hopfners had made some progress toward alleviating the causes of the children's removal but that the children were severely traumatized, and the Hopfners had not demonstrated that they could safely parent the children. The court found that the children were doing well in the Williamses' care.

         On March 22, 2018, the Department filed a petition for termination of the Hopfners' parental rights, citing three statutory grounds: (1) that the children had been out of the custody of the parents for twelve months and despite Department efforts to rehabilitate parents and correct the conditions, the conditions that caused removal have not been remedied; (2) that other factors arising subsequent to the filing of the original petition demonstrated that the parents have manifested an incapacity or indifference to remedying ...

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