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Everly v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

November 13, 2019

MELISSA EVERLY APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-17-13] HONORABLE ANNIE HENDRICKS, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          RITA W. GRUBER, CHIEF JUDGE.

         Appellant Melissa Everly appeals an order of the Sebastian County Circuit Court terminating her parental rights to her child, BE. On appeal, she argues that termination of her parental rights was not in BE's best interest.[1] We affirm.

         On January 4, 2017, the Arkansas Department of Human Services (DHS) took a seventy-two-hour hold on BE (DOB 11/05/06) based on allegations that Melissa failed to protect BE by allowing her boyfriend, Joseph Henry, into her home and around BE after BE made allegations of sexual contact. These allegations resulted in a "true finding" after an investigation by the Crimes Against Children Division (CACD) of the Arkansas State Police. The case progressed through probable-cause and adjudication hearings. The circuit court found BE was dependent-neglected, ordered continued custody in DHS, and set the goal of reunification, with a concurrent goal of permanent-relative custody. The court ordered that BE visit with Melissa only at the recommendation of BE's therapist. The parents were ordered to obtain/maintain stable and appropriate housing, employment, income, and transportation; complete parenting classes; stay clean and sober; submit to a psychological evaluation and complete any treatment recommended; and submit to random drug screens.

         A review hearing was held on June 7, and the circuit court found that DHS had made reasonable efforts to provide or make available services to achieve the goal of reunification. The circuit court found that the parents had not complied with the case plan and had not had contact with DHS. While Melissa submitted to a drug-and-alcohol assessment, she had not completed treatment, and a psychological evaluation was scheduled for August 3. In addition to the orders previously set out in the adjudication order, Melissa was ordered to complete domestic-violence education. Melissa requested that her sister be considered as a placement option, and Greg asked that his mother be considered. The court continued the goal of reunification.

         A permanency-planning order was filed February 1, 2018, with the circuit court setting concurrent goals of reunification, adoption, or permanent-relative custody. The order noted that although Melissa had competed a psychological evaluation, a drug and alcohol assessment, and parenting classes, Melissa remained unconvinced that Joseph Henry did anything inappropriate with BE despite the fact that Henry had pled guilty to a sex crime in which his daughter was the victim and there was evidence suggesting Melissa was still in a relationship with him. Melissa claimed she had not answered her door to allow the caseworker to make unannounced visits because she worked from home; this was also her excuse for being unavailable for drug screens or to attend counseling or domestic-violence classes. The order provided that it had serious concerns that BE could be safely returned to Melissa within a time frame consistent with BE's developmental needs, noting that Melissa needed to "intensify her level of compliance." The order stated that BE was in a kinship-foster placement with her paternal grandparents, but the court did not have sufficient information to determine whether permanent-relative custody would be more appropriate than adoption if reunification was not achieved. The court found that DHS had made reasonable efforts to finalize a permanency plan. The parents were ordered not to have contact with BE except as specifically approved by DHS, and further that there be no contact between BE and Joseph Henry and that Melissa report any contact with him to DHS.

         A fifteen-month review hearing took place on March 7, 2018. The court continued the concurrent goals of reunification, adoption, or permanent custody. In addition to including the previous orders from the permanency-planning hearing, the court further ordered Melissa to provide the caseworker a copy of her 2017 state and federal tax returns along with her paystubs.

         On May 30, 2018, DHS filed a petition for termination of parental rights alleging numerous grounds: failure to remedy (Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017)); failure to provide meaningful support (Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a)); abandonment (Ark. Code Ann. § 9-27-341(b)(3)(B)(iv)); and subsequent factors (Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a)).[2]

         The termination hearing was held on October 23. Four witnesses testified at the hearing: BE; Melissa; Dustin Barlow, DHS public-assistance investigator; and DHS caseworker Mindy Tuck-Duty.

         At the time of the termination hearing BE was in the sixth grade. She testified that she went into foster care because her mom's boyfriend "did some really bad stuff" to her. Initially, BE lived with foster parents for three months, followed by several months with her aunt and uncle before being placed with her paternal grandparents, with whom she resided at the time of the hearing. BE testified that she had not visited her mom since she was removed from her home, nor did she want to see or talk to her. BE stated that she had participated in therapy with her mom but did not like it because she did not want to see her mom, her mom did not listen to her, and her mom lied in counseling.

         BE prepared a written list to present to the circuit court outlining fifteen reasons she did not want to live with her mom, including in part that her mom always believed her boyfriend over BE; she saw a picture on Facebook that showed her mom partying two days after she was removed from the home; her mom would "pop" her mouth if her mom did not like what she said; her mom used her as a shield when her parents fought, which resulted in her getting punched once; her mom had attempted and threatened suicide; and her mom smoked "meth" out of a pipe. BE expressed a desire to be adopted by ...


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