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Blasingame v. Arkansas Department of Human Services and Minor Children

Court of Appeals of Arkansas, Division I

August 28, 2019

MELANIE BLASINGAME AND DANIEL BLASINGAME APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-15-443] HONORABLE LEIGH ZUERKER, JUDGE

          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant Melanie Blasingame.

          Leah Lanford, Arkansas Public Defender Commission, for appellant Daniel Blasingame.

          Callie Corbyn, Office of Chief Counsel, for appellee.

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

          ROBERT J. GLADWIN, JUDGE

         Appellants Melanie Blasingame and Daniel Blasingame appeal the November 20, 2018 order of the Sebastian County Circuit Court terminating their parental rights to their five minor children, R.B., C.B., N.B., J.B., and D.B. Appellants challenge the sufficiency of the evidence supporting the respective termination of parental rights (TPR). We affirm.

         I. Facts and Procedural History

         This case began on September 4, 2015, when a detective with the Fort Smith Police Department investigated an allegation of sexual abuse at appellants' residence involving one of the minor children, J.B., and another individual unrelated to J.B., namely Robert Brumley, who was also residing in the home. It was determined that Brumley had sexually abused J.B. while Melanie, Daniel, and Brumley were in the home using illegal and/or controlled substances. Melanie admitted that she and Daniel had been using drugs with Brumley before the incident occurred, and the investigator for the Arkansas Department of Human Services (DHS) reported that Melanie appeared to be under the influence at the time of the children's removal. As a result of the investigation, DHS exercised a seventy-two-hour hold on the children.

         DHS filed a petition for emergency custody and dependency-neglect on September 8, and the attached affidavit disclosed a prior true finding on Melanie for "Presence of an Illegal Substance in a Child or Its Mother at the Time of Birth Resulting from the Mother's Knowing Use of the Substance." The court entered its ex parte order for emergency custody on the same day.

         A probable-cause hearing was held on September 15, after which the court found that probable cause existed for the children to remain in the custody of DHS based on the stipulation of the parties. It was ordered that the parents' visitation would be separate and apart from one another. An adjudication hearing was held on October 13. By stipulation of the parties, the court adjudicated the children dependent-neglected because Melanie and Daniel abused them

by exposing them to a threat of harm and neglected [them] by inadequately supervising them, each based on the parents doing illegal drugs with [Brumley], who subsequently sexually abused [J.B.] while [Melanie and Daniel] were under the influence of illegal drugs in the home. The acts and omissions of [Melanie and Daniel] therefore placed [the children] at a substantial risk of serious harm.

         The court set the goal of the case as reunification and ordered Melanie and Daniel to obtain and maintain stable and appropriate housing, income, and transportation; complete parenting classes; complete drug-and-alcohol assessments and all recommended treatment; submit to drug screens as requested by DHS; complete domestic-violence classes; and visit regularly. The order was not appealed.

         A review hearing was held on February 2, 2016. Daniel did not appear but was represented by counsel, and the resulting order contains no findings related to him. Services that DHS had been providing to Melanie included domestic-violence classes, drug-and-alcohol assessments, parenting classes, drug screens, and hair-follicle testing. The court found that Melanie had either completed or was complying with the case plan and court orders and continued the goal of reunification. On March 23, a trial home placement was implemented with the children returning to Melanie's care.

         The next review hearing was held on May 24. Daniel attended that hearing with counsel, having been transported from the Ouachita River Correctional Unit. The court placed custody of the children with Melanie following a successful trial home placement that began on March 23 and changed the goal of the case to family preservation. The court did so despite Melanie's having recently lost her job, noting that she needed to obtain a new one soon. The court noted that Daniel was incarcerated and ordered him to complete everything he could while there, including a psychological evaluation if offered by the prison. The court further ordered DHS to hold a staffing for Daniel on his release and allowed him supervised visitation at DHS. The court stated that Melanie was to ensure that Daniel have no contact with the children outside of authorized visitation at DHS.

          A permanency-planning hearing took place on October 20, 2016. The resulting order reflected that Daniel was present with his attorney, presumably no longer incarcerated. Custody of the children remained with Melanie, and she was ordered to submit to a hair-follicle test. Daniel was ordered to complete a psychological evaluation. His visitation remained as previously ordered, with no contact with the children outside of the arranged visitations at DHS.

         On November 16, DHS filed a motion for ex parte emergency change of custody, alleging that it had received a report that Melanie had allowed Daniel to spend the night on several occasions in contravention of the court's orders regarding Daniel's contact with the children. Melanie and Daniel admitted that Daniel had been to Melanie's home that day to install a wood-burning stove because the home did not have heat, but they denied any contact between them other than that isolated instance. The court found that Melanie and Daniel had disregarded the no-contact order, specifically finding that Daniel had been to the home with the children to install a wood stove, treat the children's hair for lice, spend the night on several occasions, and help move the family to their current home. The court entered its emergency change-of-custody order on November 16, placing the children back into DHS's custody and setting an emergency hearing for November 17. At the November 17 hearing, which Daniel did not attend, the parties reached an agreement to return custody of the children to Melanie. The court ordered Daniel to have no contact whatsoever with the children outside of scheduled visitation at DHS and reminded Melanie that she was responsible for ensuring compliance with the court's order.

          Another review hearing occurred on January 19, 2017, at which time custody of the children remained with Melanie, who was authorized to supervise Daniel's visitation in a public setting. The court ordered Daniel to complete the psychological evaluation and to resolve any criminal issues.

         On May 4, a review hearing was held, but Daniel was not present. The court continued the children in Melanie's custody with the goal of family preservation but noted that Melanie did not have income and had not had income for the last six months. Moreover, Melanie did not have operable and insured transportation and had yet to complete domestic-violence classes. Additionally, Daniel's visitation was changed back to supervised visitation at DHS.

         The second permanency-planning hearing took place on August 24, and the children remained in Melanie's custody with the continued goal of family preservation. Melanie was ordered to seek counseling for J.B. The court noted that Daniel had been reincarcerated and ordered that he have no contact with the children outside of visits arranged by DHS, with those visits remaining supervised upon his release.

         On November 30, the court held a review hearing and continued custody with Melanie along with the goal of family preservation. However, the court found that although Melanie had housing, she was behind on her rent, lacked stable income and stable transportation, and had not followed through on obtaining counseling for J.B. The court acknowledged the attorney ad litem's request to remove the children from Melanie's custody and warned Melanie that the court was close to removing the children. The court ordered DHS to hold a staffing within two weeks and expected Daniel to be provided with a psychological evaluation by that time. The court ordered Daniel to submit to a hair-follicle drug screen, as well as regular drug screens, and left visitation to be supervised at DHS.

         On December 13, 2017, the ad litem filed a motion for emergency hearing to suspend Daniel's visits, which was followed by DHS's filing a motion for ex parte emergency change of custody on December 19. Both motions were based on an incident of domestic violence between Daniel and Melanie wherein Daniel had kicked the door in at Melanie's home, after which Melanie (1) fled with the children to a shelter in Oklahoma; (2) had nowhere to reside; and (3) failed to inform DHS, the attorney ad litem, or the Court Appointed Special Advocate (CASA) about the incident. Also, DHS's motion revealed that at the staffing held December 18, Daniel admitted he had previously resided with Melanie and the children during the case; purposely evaded the police; and lied to the police, CASA, and DHS either directly or indirectly to cover for Melanie in order to keep the children in her custody. DHS asserted that Melanie did not have housing, income, or transportation; had not arranged counseling for J.B.; and had not been truthful with DHS or the court about her contact with Daniel or his contact with the children.

         The court entered its emergency change-of-custody order the same day placing the children in DHS custody with a hearing on the merits scheduled for December 27. At that hearing, the court found that it was contrary to the welfare of the children to be returned to Melanie's custody, and it thus continued custody with DHS.

          At the review hearing on February 8, 2018, custody of the children remained with DHS with the goal of the case changing to adoption after TPR. The court ordered both parents to obtain and maintain stable and appropriate housing, income, and transportation; submit to a psychological evaluation; participate in homemaker services; and visit regularly. Daniel was ordered to complete anger-management classes and resolve his criminal issues, and Melanie was ordered to complete domestic-violence classes. The court set a hearing on a prospective TPR petition for May 31 that was continued without objection to July 5.

         DHS filed a TPR petition on June 1, 2018, asserting that Melanie's and Daniel's parental rights should be terminated on two grounds: (1) they manifested the incapacity or indifference to remedy/subsequent factors that arose after the inception of the case pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017); and (2) they subjected the children to aggravated circumstances based on little likelihood of successful reunification pursuant to Arkansas Code Annotated ...


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