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Canerday-Banks v. Barton

Court of Appeals of Arkansas, Divisions I, II

October 31, 2018



          Richard E. Worsham, for appellants.

          Phillips & Veach, P.A., by: Robert M. Veach, for appellees Rebecca and David Barton. Mary Goff, Office of Chief Counsel, for appellee Arkansas Department of Human Services.

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


         Appellants Rhonda Canerday-Banks and Donald Banks (collectively referred to herein as the Bankses) appeal the Pope County Circuit Court's orders dismissing their petition to adopt a minor child, P.S., and granting the adoption petition filed by appellees David and Rebecca Barton. We affirm the circuit court's orders.

         The parental rights of P.S.'s biological parents were terminated on January 20, 2017, by an order of the Pope County Circuit Court. Pursuant to that order, P.S. was placed in the care and custody of the Arkansas Department of Human Services (DHS). At that time, P.S., age four, was living with the Bartons, who had been her foster parents since she was removed from her parents' custody at the age of sixteen months. P.S. had spent the majority of her life living with the Bartons, save for short trial placements with a relative in Louisiana and with her mother, both of which did not work out. Each time she was returned to the Bartons' home where she lived with the Bartons and their three older adopted children.

         On April 12, 2017, the Bartons filed a motion to intervene in the dependency-neglect case in order to file a petition to adopt P.S. The Bankses then filed a motion to intervene on April 24, 2017, also for the purposes of petitioning the court for adoption of P.S. Rhonda Canerday-Banks is P.S.'s paternal grandmother, and the Bankses had been involved in the case for years. The Bankses had, at one point, moved from Florida to Arkansas to be closer to P.S. and had exercised visitation with the child, but they returned to Florida when P.S.'s biological mother began exercising visitation and seemed to be on track to regain custody of P.S. Following an initial hearing on May 1, 2017, the court granted both motions to intervene. The court ordered that, pending a final hearing, P.S. would remain with the Bartons and would have extended visitation with the Bankses in Florida.

         On May 16, 2017, the Bartons filed a petition to adopt P.S. Pursuant to statute, the Bartons had submitted a written request to DHS for its consent to the adoption, but on May 17, 2017, DHS sent the Bartons a letter stating that it was declining to consent to their adoption petition. The letter's subject line referenced the circuit court case name and number, and the letter stated in its entirety:

The Department does not feel it is in the best interest of the juvenile to be adopted by David and Rebecca Barton. In addition, Donald and Rhonda Banks have been involved in the case for some time and have a relationship with the child. Prior to termination, Mr. and Ms. Banks requested placement of the child in their home on more than one occasion. Mr. and Ms. Banks should be given preference in the adoption of the child due to their family connection and relationship with the child.

         On May 31, 2017, DHS removed P.S. from the Bartons' home pursuant to a maltreatment investigation. One of the Bartons' older children, who had previously been adopted through the foster-care system, alleged that the Bartons used food as punishment and that they used "bending back of the thumb" as punishment.

         On June 5, 2017, the Bankses filed a petition to adopt P.S.

         On August 11, 2017, DHS sent the Bartons a letter stating that while it appreciated the Bartons' many years of service as foster parents, their home would be officially closed on August 11, 2017, for the following reasons:

•Using food as punishment,
•Complexity of care of the adoptive child and the concerns you mentioned with the child during the child maltreatment investigation,
•The Department found the neighbor to be credible and the adoptive child was fearful,
•The Department does believe that the bending back of the thumb is taking place in the home,
•The Department does believe that the Bartons have spanked the foster child.

         It is undisputed that the language of this letter neither referenced the adoption case nor mentioned the Bartons' adoption petition or DHS's denial of consent to that petition. The letter was sent from a DHS office in Little Rock, not the local county office with which the Bartons had been communicating regarding their adoption petition.

         On August 18, 2017, the court-appointed special advocate (CASA) filed a CASA court report in which he stated that "This CASA respectfully recommends adoption [of P.S.] by the Barton family." The CASA report stressed that P.S. is only four years old and needs permanency. The CASA stated that he had concerns that the Bankses would allow P.S.'s biological parents, whose rights had been terminated, to have access to the child, emphasized that P.S. should not have any contact with her biological parents, noted that Mrs. Canerday-Banks had been in recent contact with her son, and noted that her son lived near his father in Louisiana. The CASA report also raised a concern that, during the dependency-neglect case, P.S.'s father had "refused services telling the caseworker that he would have access to [P.S.] when his parents get custody." The CASA report also addresses the allegations of abuse against the Bartons, noting that the CASA had requested but not been provided a copy of the investigation report. Finally, the CASA noted that P.S. had lived with the Bartons the majority of her life, the Bartons had agreed to allow the grandparents to have visitation, the Bartons recently passed their DHS quarterly review of their home, [1] and that DHS had stated during an August 11 mediation that there was nothing that would prevent either party from adopting the child.

         The circuit court held a hearing on both adoption petitions on August 25, 2017. The day before the hearing, the Bankses filed a consent to adoption that had been executed in their favor by DHS. It was signed August 24, 2017. At the outset of the adoption hearing, the Bartons orally moved to dismiss the Bankses' petition, arguing that the consent form did not comply with the statutory requirements (specifically the ten-day or five-day waiting periods for withdrawal of the consent). DHS's consent did not contain any language waiving the specified waiting period, and DHS never requested that the court waive it.[2] After hearing arguments from both sides and determining that the Bankses' attorney had presented DHS with the consent the day before trial, the court dismissed the Bankses' petition for failing to meet the statutory requirements of Arkansas Code Annotated section 9-9-214(c)-(d) (Repl. 2015).[3]

         The Bankses were excused from the courtroom, and the court proceeded with the hearing as to the Bartons' petition to adopt. Rebecca Barton testified that she and David Barton have been married for approximately six years, had adopted three children together, and have five older children from previous marriages. Rebecca testified that she and David became foster parents for P.S. on August 15, 2014, and that except for two unsuccessful trial placements with relatives, P.S. had remained with the Bartons until May 31, 2017, when DHS removed her. Rebecca testified that P.S. had spent more than half her life in their home, had formed a bond with the Bartons and their children, and was very much a part of their family. Rebecca testified that the family loves P.S. She also testified to their ability to care for P.S., stating that they own a 5, 800-square-foot home with five bedrooms and four and a half baths, and that P.S. shared a room with the Bartons' seven-year-old daughter, where P.S. had her own bed, dresser and toys. Rebecca estimated the Bartons' annual income to be approximately $410, 000 per year. She stated that they had no debt, had reliable transportation, and had the facilities and resources to take care of P.S. She also testified to the ways in which she had been providing for P.S.'s medical needs. Rebecca also testified that she had been adopted from the foster-care system as a child and could relate to P.S.'s experiences.

         On cross-examination, Rebecca testified that earlier in the case, P.S. had gone for weekend visits with the Bankses for approximately three months. When questioned about the child-maltreatment allegations, counsel for the Bartons objected, arguing that the claims were found to be unsubstantiated, DHS had already indicated there was nothing that would prohibit the Bartons from adopting the child, [4] and the fact that allegations had been made and found to be unsubstantiated should be enough to establish a record on that issue. DHS's attorney never spoke during this exchange and did not explain the purpose for which the testimony was being offered; but the court, in overruling the objection, stated, "I'm going to go ahead and allow it, though, and I can determine whether DHS is being reasonable here in withholding their consent or not."

         Rebecca testified that on May 31, 2017, one of her older children, whom she and David had previously adopted through the foster-care system, was grounded for taking candy from the kitchen after being told not to, flushing her breakfast cereal down the toilet, and lying. Rebecca testified that the child became angry and ran away to a neighbor's house a few doors away. Rebecca tried to run after her, but after losing sight of the child, Rebecca called 911. The neighbor also called 911, and a sheriff's deputy arrived soon thereafter. Rebecca testified that the sheriff's deputy evaluated the situation and said, "It's a kid being a kid and go back home with mom and dad and behave," and that the sheriff's office took no action. However, at some point during or after this incident, the child made allegations that the Bartons withheld food as punishment and had bent her thumb back as punishment. Rebecca stated that she met with Deanna Lacefield from the Arkansas State Police, who investigated the allegations and found them to be unsubstantiated. Rebecca denied ever bending any of her children's thumbs back or spanking any of her children, including P.S. She also denied withholding food as punishment. She explained that in the Barton household, getting to go out to eat at a restaurant was considered a treat, and that a child who was grounded at the time of the outing would not be allowed to order at the restaurant. The child would be given the choice to eat before going, eat after they got home, or pack a meal to take to the restaurant. She stated that the children would always be allowed to eat at home but that going out to eat was a privilege that was taken away from a child who was grounded.

         She testified that although the state police found that the allegations were unfounded, DHS removed P.S. from the Barton home and sent them a letter dated August 11, 2017, notifying them that it was closing their home as a foster placement. Rebecca testified that DHS never asked her or David any questions about the allegations, and they were not involved in the DHS investigation. When DHS counsel moved to introduce the August 11, 2017 letter, counsel for the Bartons objected, arguing that it had not been turned over in discovery and was not provided to counsel until the day before the hearing. The court admitted the letter, finding that Rebecca had already testified as to its contents and that there was no prejudice from the discovery omission because the Bartons had received the letter. At no point in this exchange did DHS's counsel indicate that the letter was being introduced as a reason for DHS's decision to withhold consent to the adoption petition. Consent to adoption was never discussed in relation to the August 11 letter.

         Rebecca testified that the Bartons' home had been open as a foster home for a little over three years and had been reevaluated annually. A favorable home study of the Barton home, produced by Grace Adoptions, was admitted into evidence. Rebecca testified that through their attorney, the Bartons had submitted a written request to DHS for consent to their adoption petition. Rebecca noted that the May 15, 2017 letter denying the Bartons' request for consent to adopt P.S. was sent two weeks before the May 31 event giving rise to the maltreatment allegations. Rebecca testified that the decision to close her home as a foster home was made by a committee that met in Little Rock.

         David Barton testified in keeping with Rebecca's testimony. The Bartons also presented the testimony of several family friends, daycare teachers, and their adult daughter, who all testified that the Bartons are great parents and love P.S., that the child has a strong bond with the entire Barton family, and that P.S. was very much "part of the family." P.S. had been the flower girl in the wedding of the Bartons' older daughter and always referred to the Bartons' other children as her brothers and sisters.

         DHS called Victoria Smith, who identified herself as the DCFS County Supervisor for Pope County. Counsel for DHS asked Smith why "the Department prefer[red] the Banks[es] over the Bartons." Smith responded, "The Banks are family." She later again testified that it was DHS's concern that it would be "severing the bond - - this family relationship with the Banks[es]." Smith's only testimony related to the maltreatment allegations is as follows:

Q: Okay. Now, as far as Ms. Barton had testified as to why the Department had closed the foster home, is that your understanding of that's why the ...

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