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Castleberry v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

September 25, 2019



          Tabitha McNulty, 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 child.


         This is an appeal from the Washington County Circuit Court's order terminating Chad Castleberry's parental rights to A.C. (born 07/19/17). On appeal, Castleberry asserts that the circuit court failed to make the required findings under the Indian Child Welfare Act ("ICWA") in the termination order. Castleberry also argues that the evidence was insufficient to support the circuit court's decision that serious physical and emotional harm would likely result if A.C. is returned to Castleberry's custody. We affirm.

         I. Relevant Facts

         On July 24, 2017, the Arkansas Department of Human Services ("Department") filed a petition for emergency custody and dependency-neglect regarding A.C. In the affidavit attached to the petition, the Department alleged that A.C.'s safety and well-being were in danger because the mother, Destiny Fletcher, was a flight risk and had a history of drug abuse. Castleberry was incarcerated at the time. The Department identified this case as one involving the ICWA. The Department noted that it had been involved with the family since 2012 due to inadequate supervision, parental drug use, inadequate food and clothing, and environmental neglect. Fletcher's and Castleberry's parental rights had been terminated as to four older children, there was an open dependency-neglect case for two children, R.C.1 and R.C.2 (both born 08/13/16), and the parents were noncompliant with the case plan.

         The court entered an ex parte order for emergency custody finding that it was in A.C.'s best interest to remove her from Fletcher's custody. The parents were ordered to cooperate with the Department, attend the meetings and staffings, provide the Department with all contact information, remain sober, submit to drug screening, attend counseling, obtain stable housing and employment, demonstrate the ability to protect A.C., maintain contact with their attorneys, follow all court orders and the case plan, and resolve all criminal matters. The Department was ordered to provide referrals and services. Notice of a custody hearing was provided to the Cherokee Nation of Oklahoma.

         On September 8, 2017, the court entered an adjudication order finding that neither parent had complied with the case plan and that both parents were incarcerated at the time of the order. Castleberry explained that he was incarcerated on charges of delivery of methamphetamine, possession of methamphetamine with intent to deliver, and possession of drug paraphernalia and that he would be released on March 5, 2018. The court found that clear and convincing evidence supported the determination that

the Department made active efforts to provide remedial and rehabilitative services designed to prevent the break-up of the Indian family or that an emergency precluded those efforts and that continued custody with the parents is likely to result in serious emotional or physical damage to the juvenile. The Court finds that [A.C.] is in an ICWA-compliant placement-a tribal foster home.

         The circuit court entered the permanency-planning order on January 12, 2018, finding that return to the custody of either parent was contrary to A.C.'s health, safety, and welfare and that returning the juvenile to the custody of a parent would likely result in serious physical or emotional harm to the juvenile. The court found that Castleberry had not complied with the case plan or orders of the court, specifically, that he had not participated in any services offered by the Department or the Arkansas Department of Correction, and he had not contacted the Department during the case. The court found that the Cherokee Nation had been working with the parents for several years to remedy their drug use and criminality to no avail.

         On March 20, 2018, the Department filed a petition to terminate the parents' rights asserting that (1) the juvenile or a sibling has been found dependent-neglected as a result of neglect or abuse that could endanger the child's life; (2) other factors arose subsequent to the filing of the petition for dependency-neglect and the parents have manifested the incapacity or indifference to remedy those factors; (3) Castleberry had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life; (4) the parents subjected A.C. to aggravated circumstances in that there is little likelihood that services will result in successful reunification; and (5) the parents have had their rights involuntarily terminated as to multiple siblings of A.C.

         On June 8, 2018, the circuit court entered a review order finding that A.C. could not be safely returned to her parents' custody. The circuit court found that Fletcher had complied with most of the court orders and case plan and had made substantial progress toward reunification. As to Castleberry, the circuit court found that he had complied with some of the court orders and had made some progress toward reunification. The same day, the circuit court granted a voluntary dismissal of the Department's petition to terminate parental rights. On ...

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