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Barton v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

April 24, 2019

PATRICIA BARTON APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT [NO. 56JV-15-128] HONORABLE RALPH WILSON, JR., JUDGE

          Leah Lanford, 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 children.

          LARRYD. VAUGHT, JUDGE

         Patricia Barton appeals the December 31, 2018, order entered by the Poinsett County Circuit Court terminating her parental rights to her three children, JB (born June 5, 2008), ZS (born April 8, 2013), and BS (born April 12, 2017). On appeal, Barton contends that the circuit court clearly erred in finding that statutory grounds supported termination and that termination was in the children's best interest. She also contends that the court abused its discretion in admitting her psychological evaluation into evidence. We affirm.

         On December 10, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect alleging that JB and ZS were dependent-neglected due to environmental neglect. A DHS caseworker attached an affidavit to the petition stating that Barton's home had no heat, and it was fifty-three degrees inside the home; there were holes in the floor; there was no hot water and no refrigerator; broken windows were covered with plastic and boards; there were exposed wires in the electrical outlets; the ceiling was broken and was falling through in some places; there was no working tub; and the toilet had been broken into pieces. The caseworker further stated that DHS had a history with the Barton family dating back to November 2008 that included protective-services cases in 2013 and 2014. The circuit court entered an ex parte order for emergency custody of JB and ZS on December 14, 2015, and a probable-cause order was entered on December 16.

         The court adjudicated JB and ZS dependent-neglected on the basis of environmental neglect, and the goal of the case was reunification. Following a review hearing, an order was entered on April 12, 2016, wherein the court found that Barton had complied with the case plan, and the court authorized a trial placement. On June 13, the court entered an order returning JB and ZS to Barton's custody, closed the dependency-neglect case, and opened a protective-services case.

         However, on August 22, DHS filed a second petition for emergency custody of JB and ZS, in which it alleged environmental neglect. The caseworker's affidavit accompanying this petition stated that Barton had no electricity in her home and had been evicted for failure to pay rent. Barton reported that she planned to move in with her neighbor, whom she planned to marry, but he had locked her and the children out of his apartment. She had no alternative housing plan. The court entered an ex parte order for emergency custody the same day. Later, a probable-cause order was entered, and on October 5, the court entered an adjudication order finding JB and ZS dependent-neglected due to environmental neglect.

         A January 11, 2017 review-hearing order stated that Barton complied with parts of the case plan but not others. She failed to visit the children on a regular basis and to maintain appropriate housing. The order stated that she reported she had been living with her neighbor, but because he abused her, she had been staying in a shelter for abused women. Another review-hearing order was entered on April 10. This order found that Barton had completed the psychological evaluation but lacked stable housing and struggled with the children's behavior during visitation.

         BS was born on April 12, 2017, and on April 24, DHS filed a third petition for emergency custody and dependency-neglect alleging that BS was dependent-neglected based on DHS's custody of his siblings. An ex parte order of emergency custody was entered the same day. A probable-cause order was entered on April 27, and an adjudication order was entered on May 25, finding BS dependent-neglected.

         On September 28, the court entered a permanency-planning order finding that Barton had been complying with the case plan and the court's orders and was making significant and measurable progress toward reunification. The court further found that placement of the children with Barton would occur no later than three months from September 22, 2017. A fifteen-month-review order was entered on December 29, wherein the court found that Barton had complied with the case plan, yet the court authorized a plan for adoption.

         On March 22, 2018, DHS filed a petition for termination of parental rights alleging that termination was in the children's best interest and that two statutory grounds for termination existed: (1) subsequent factors, Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017) and (2) aggravated circumstances, Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B).

         At the termination hearing, Kelli Cole, a DHS foster-care and protective-services supervisor, testified that both JB and ZS had been taken into DHS custody in December 2015 because of environmental neglect and inadequate supervision. Cole stated that JB and ZS were returned to Barton in a trial placement in February 2016; however, DHS received hotline calls that the children were leaving home without Barton's knowledge. One of the children was found by the police at a store. Cole testified that DHS continued to provide services, and in June 2016, an order was entered returning custody of JB and ZS to Barton. However, following a home visit in August 2016, DHS found that there was no electricity in the home and that Barton had been evicted. JB and ZS were removed again from Barton's custody. Cole said that BS was taken into DHS care in April 2017 because his siblings had been adjudicated dependent-neglected.

         Cole further testified that Barton had completed all the services DHS offered her. She participated in two parenting classes, watched the video "The Clock is Ticking," visited the children, and submitted to a psychological evaluation and therapy. Cole stated that despite these services, Barton has not "overcome being an ineffective parent" and is not "able to demonstrate the basic parenting skills right now." Cole said that Barton's primary problem was her inability to tend to all three children at one time. Cole said that the children would be subject to potential harm in Barton's custody if the boys got out of the home without her knowledge: "She has not exhibited the skill set that shows that she's capable of keeping these kids safe." Cole also noted that the psychological evaluation recommended that Barton could not care for the children by herself. Cole testified that Barton provided a list of thirteen people she said could help her, but DHS was able to contact only four of them, and none were ...


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