APPEAL
FROM THE GREENE COUNTY CIRCUIT COURT [NO. 28JV-16-314]
HONORABLE BARBARA HALSEY, JUDGE
Janet
Lawrence, for appellant Alfredo Hernandez.
Dusti
Standridge, for appellant Jennifer Hernandez.
Callie
Corbyn, Office of Chief Counsel, for appellee. Chrestman
Group, PLLC, by: Keith L. Chrestman, attorney ad litem for
minor children.
BART
F. VIRDEN, Judge
The
Greene County Circuit Court terminated the parental rights of
appellants Jennifer Hernandez and Alfredo Hernandez to their
two children, A.H. and C.H. The parents have filed separate
briefs on appeal. Jennifer challenges each ground for
termination and argues that termination was not in the
children's best interest. She also argues that the
Arkansas Department of Human Services (DHS) failed to make
reasonable efforts to reunify her family. Alfredo argues that
he was deprived of his due-process rights because he did not
have the benefit of counsel until the goal was changed to
termination of parental rights. He also contends that DHS did
not provide reasonable and meaningful services to him and
that there was insufficient evidence that termination was in
the children's best interest. We affirm.
I.
Procedural History
An
affidavit attached to a petition for emergency custody and
dependency-neglect filed by DHS indicates that a
seventy-two-hour hold was taken on A.H. and C.H. on December
16, 2016, because Jennifer had appeared in juvenile court
with her younger son and tested positive for buprenorphine,
methamphetamine, amphetamines, benzodiazepines
(prescription), and THC.[1] Jennifer went to DHS, contesting the
drug-screen results from juvenile court, and a drug screen
performed by a DHS supervisor was positive for illicit drugs.
The affidavit also reveals that DHS first had contact with
the family on November 3, 2009 (true referral for inadequate
supervision); September 3, 2010 (true referral for threat of
harm); November 25, 2009, through December 8, 2010
(successfully completed protective-services case); August 10,
2016 ("inactive referral—unable to
locate—for sexual contact"); and October 6, 2016
(true referral for educational neglect).
An ex
parte order for emergency custody was entered on December 19,
2016. In an order entered February 7, 2017, the trial court
found probable cause that the emergency conditions that
necessitated the children's removal from the parent's
custody continued to exist. Both parents were ordered to
comply with standard welfare orders, including that they
cooperate with DHS, comply with the case plan, and obey all
court orders; view "The Clock is Ticking" video;
remain drug free and submit to random drug screens with the
understanding that any refusal to comply or failure to
produce a specimen within one hour would be considered a
positive result; provide proof of any prescribed medications
at the time of the random drug screens; participate in and
complete parenting classes; obtain and maintain clean, safe,
and stable housing with utilities; allow DHS access to their
homes; obtain and maintain stable employment or provide
sufficient income to support the family; provide DHS with a
budget indicating sufficient income or resources to meet the
needs of the family; and maintain contact with the caseworker
and immediately notify DHS of any change in address, contact
information, marital status, or employment status. In
addition, Jennifer was ordered to submit to a
drug-and-alcohol assessment, to follow the recommendations of
the assessment, and to provide a copy of the assessment
results to DHS.
On
February 10, 2017, A.H. and C.H. were adjudicated
dependent-neglected by stipulation of the parents.
Specifically, the children were found to have been
inadequately supervised due to Jennifer's drug use. The
trial court set the goal of the case as reunification and
approved DHS's case plan. The parents were again ordered
to comply with the standard welfare orders, and Jennifer was
required to submit to a drug-and-alcohol assessment. The
trial court further ordered that Alfredo was to have no
contact with the children for one month. DHS was ordered to
press the Arkansas State Police Crimes Against Children
Division and the Jonesboro Police Department to investigate
the sexual-abuse allegations against Alfredo involving A.H.
Moreover, the trial court noted that it had inquired about
Alfredo's indigency and determined that an attorney could
not be appointed for him.
A
hearing was held on March 29, 2017, to review the no-contact
order that had been entered against Alfredo. In a
limited-review order entered April 27, 2017, the trial court
noted that Alfredo had not appeared at the hearing to contest
the no-contact order; therefore, the trial court left the
order in place.
A
review order was entered on June 22, 2017, in which the trial
court continued the goal of reunification and found that DHS
had made reasonable efforts to provide family services. A
permanency-planning order was entered on January 4, 2018, in
which the trial court continued the goal of reunification.
The trial court gave the parents three more months to work
toward the goal of reunification, not because the
parents had made significant measurable progress, but because
the trial court was not satisfied with DHS's provision of
services to the parents. The trial court also found that
Jennifer had not provided proof of her attendance at NA/AA
meetings and had not completed drug-treatment classes
recommended by her drug-and-alcohol assessment. The trial
court also expressed concern that Jennifer had not allowed
DHS access to her home. Further, the trial court found that
Alfredo had not complied with the case plan and court orders.
A
fifteen-month review order was entered May 11, 2018, in which
the trial court changed the goal of the case to adoption. The
trial court concluded that both parents had not complied with
the case plan and court orders. Specifically, the trial court
found that Jennifer had not presented proof of an appropriate
home; that she had not provided proof of her attendance at
NA/AA meetings; that there was no evidence that she had
remedied the cause for the children's removal from her
custody; and that she had attended only twenty out of
thirty-six recommended drug-treatment classes. As for
Alfredo, the trial court noted that, because he had not
appeared at the hearing on the no-contact order, he had been
given no visitation with his children throughout the case.
The trial court appointed counsel to represent each parent.
On
August 6, 2018, DHS filed a petition to terminate
Jennifer's and Alfredo's parental rights to A.H. and
C.H. A termination hearing was held over the course of
several days: November 26 and December 6, 2018; and January
11, 2019.
II.
Termination Hearing
In
November, DHS caseworker Ginny Sims, who had been assigned to
the case in December 2017, testified that Jennifer had not
remedied her drug issues in that she had tested positive for
methamphetamine in November 2018. Sims said that there was
very little urine to sample, it had "no
temperature," and there was something floating in it;
she later conceded that, when a sample does not register a
temperature, the test is not valid. Sims said that on April
16, 2018, Jennifer refused to submit to a drug screen twice
on the same day and that her efforts to perform drug screens
had been hampered because Jennifer could not be located at
the residence she shared with her father. She testified that
she had no idea whether Jennifer's home was appropriate
for the children because her father's residence contained
a locked bedroom. Sims said that the home was otherwise
appropriate but that she had not seen any personal items
belonging to a female living there. Sims said that Jennifer
had not provided proof of her attendance at drug-treatment
classes, which had been recommended from her drug-and-alcohol
assessment. Sims said that Jennifer's visits with the
children were appropriate for the most part and that she
visited more often than not. She said that Jennifer had been
diagnosed with bipolar disorder, anxiety, and PTSD but that
Jennifer was not attending counseling sessions.
Sims
testified that Alfredo had no visits with his children
because of the no-contact order. She said that he had
completed parenting classes and had watched the video
"The Clock Is Ticking"; however, he had not
provided proof of stable income, and the home he lived in,
where he was renting a room from someone, would not be
appropriate for his children. Sims further testified that the
children's foster family wished to adopt them and that
they are otherwise adoptable in that they do not have major
behavioral issues, learning or physical disabilities, or
mental or health issues. The remainder of the hearing was
continued.
In
December, Sims was recalled to the stand. She admitted that
she had not visited Jennifer's home every month per DHS
policy but explained that she was not always allowed access
to Jennifer's home because she conducted random visits.
She was cross-examined extensively by Jennifer's counsel
about her attempts to visit the home and her communication
with Jennifer.
Sims
was then cross-examined by Alfredo's counsel about her
lack of documentation regarding the case plan; specifically,
Alfredo's signature was missing from a copy of the
October 2018 case plan. Also, Sims said that she did not
think she had provided a copy of that case plan to either
Alfredo or his attorney. She later said that she usually
emails all of them but that she would have to check her
email. Sims stated that on March 12, 2018, she had visited
Alfredo's home—a rented room in Jonesboro—and
that Alfredo had not given her any information that he had
moved from there. She said that the home was obviously not
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