APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-17-557]
HONORABLE STACEY ZIMMERMAN, JUDGE
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.
BART
F. VIRDEN, JUDGE
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 ...