Owen v. Arkansas Department of Human Services

         APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. 70JV-18-14], HONORABLE EDWIN KEATON, JUDGE

          Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

         Ellen K. Howard, Jonesboro, Office of Chief Counsel, for appellee.

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

         OPINION

         MEREDITH B. SWITZER, Judge

          Sonya Owen appeals the termination of her parental rights to her son, JN, born on February 19, 2018. Owen’s sole point on appeal is the circuit court erred in not appointing her a guardian ad litem. We affirm.

          I. Facts

         This case began on February 22, 2018, with a report of suspected neglect based on concerns that Owen was not feeding newborn JN enough and that Owen, who is developmentally delayed, would be unable to care for JN because she is unable to care for herself. During an interview with the investigator, Owen stated that prior to JN’s birth, she was living with her boyfriend, Mat Newlin, who is not JN’s father and that JN’s father was in prison in Colorado. She believed her hygiene was perfect with the exception of her teeth, which she admittedly did not brush every day. She also reported she and Newlin washed their clothes once a month; she had not been taking her medication for bipolar disorder and attention-deficit disorder (ADD) while she was pregnant; Newlin smoked cigarettes; and she knew how to care for a baby despite her bipolar disorder and ADD.

          One of the nurses who cared for Owen after JN’s birth expressed concern that Owen was not feeding him enough. When the nurse told Owen that DHS wanted to watch her feed JN, Owen began feeding him and began to bond with him. Owen’s case manager stated Owen told her she had used methamphetamine twice during her pregnancy. The case manager also reported Owen has three other children, two of whom lived with their father and one whom she had given up voluntarily; and the nurses were concerned about Owen’s hygiene and her ability to care for JN.

          JN was released from the hospital on February 23, and DHS placed a 72-hour hold on him based on concern of an immediate danger to JN’s health or physical well-being due to Owen’s mental capacity and inability to care for him and protect him from harm. An ex parte order for emergency custody was entered on February 28. On March 27, a probable-cause order was entered continuing JN in DHS custody because Owen was unfit to have custody, and JN’s health and safety could not be protected if returned to Owen.

          DHS filed its first petition to terminate Owen’s parental rights on April 2, alleging that Owen had subjected JN to aggravated circumstances. This petition was denied in an order filed on July 12, with the circuit court finding DHS had not proved by clear and convincing evidence Owen had subjected JN to aggravated circumstances or that it was in JN’s best interest for her parental rights to be terminated. However, custody of JN was continued with DHS because the return of custody to Owen was contrary to JN’s welfare.

          JN was adjudicated dependent-neglected in an order filed on May 7. Owen was ordered to follow the case plan, obey all court orders, and cooperate with DHS; obtain and maintain stable, clean, and suitable housing and keep all utilities on; obtain and maintain stable employment and otherwise provide adequate income to support JN; complete parenting classes; submit to random drug screens and test negative on all; not use or possess any illegal drug; and attend and participate in counseling.

         A review hearing was held on September 17, and an order was filed on October 9 continuing custody of JN with DHS. The order found DHS had made reasonable efforts to provide services to achieve a goal of reunification but found Owen had not complied with the case plan and court orders, and Newlin, with whom Owen was still living, had not cooperated with DHS. Owen was ordered to do all the things previously ordered in the adjudication order. A second review hearing was held on December 17, 2018; ^[1] the circuit court again found DHS had made reasonable efforts to provide services to achieve reunification, but Owen was still not compliant with the case plan or court orders.

         DHS filed a second petition to terminate Owen’s parental rights on January 9, 2019, alleging two grounds: (1) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated placement of JN in Owen’s custody was contrary to his health, safety, or welfare and that, despite the offer of appropriate family services, Owen had manifested the incapacity or indifference to remedy the subsequent issues or factors or to rehabilitate the circumstances preventing placement of JN in Owen’s custody (Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017)); and (2) JN was subjected to aggravated circumstances (Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) ). After a February 8, 2019 hearing, the circuit court terminated Owen’s parental rights to JN in an order filed March 12, finding Owen had subjected JN to aggravated circumstances and it was in his best interest for Owen’s parental rights to be terminated. Specifically, the circuit court found the following: the case had never progressed to a point where DHS felt comfortable with allowing Owen to care for JN due to her level of functioning; while Owen had completed parenting classes, ...