Drake v. Ark. Dep't of Human Servs. & Minor Children

2023 Ark. App. 429

675 S.W.3d 487

Kyle Lee DRAKE, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees

No. CV-23-195

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered October 4, 2023

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Kaylee Wedgeworth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, Little Rock, attorney ad litem for minor children.

BART F. VIRDEN, Judge

Appellant Kyle Lee Drake appeals the Sebastian County Circuit Court order that terminated his parental rights to his children, MC1 (09/16/19) and MC2 (08/30/20). Kyle does not challenge the statutory grounds for termination or the potential-harm or adoptability prongs of the best-interest determination.¹ His sole argument on appeal is that termination was not in the children's best interest because a less restrictive alternative for their placement was available. We affirm.

I. Relevant Facts

On April 26, 2021, the Arkansas Department of Human Services (Department) filed a petition for emergency custody and dependency-neglect alleging that MC1, MC2, and MC3 (05/24/18) were removed from the home of Danielle Burke and Kyle Drake due to parental drug use, inadequate supervision, and medical neglect.^{2 ,3} In the affidavit attached to the petition, the Department alleged that on the evening of April 21, 2021, Natasha Maddox, a family service worker with the Department, stopped by the Burke-Drake residence to administer a drug test as part of an open dependency-neglect case regarding another sibling, MC4, who is not a party to this case and was not living in the home at that time. Maddox found both Danielle and Kyle in an agitated state. Both parents reported noncompliance with the current case plan, and both produced urine samples that were not the correct temperature and that field tested negative for all substances. Danielle then admitted using fentanyl, methamphetamine, heroin, THC, and oxycodone. Danielle instructed Kyle to admit his drug use, and he stated that he had used fentanyl, "roxies," and heroin. The next day, the children were removed from the home. Two potential provisional homes were identified: Gayle and Harold Drake, Kyle's parents who already had provisional adoptive placement of one of Kyle's older children; and Savannah and Daniel Burke, Danielle's sister and brother-in-law. Savannah and Daniel Burke were unable to give the children a home at

that time. The affidavit noted the strong sibling bond between the children and that the children had been placed together in a foster home and were doing very well. The affidavit recounted the family's history with the Department.

The Department filed an amended petition for emergency custody on May 24, asserting that the children had been subjected to aggravated circumstances. Specifically, the Department contended that the children had been chronically abused and neglected, endangering their lives, and there was little likelihood that further services to the family would result in reunification. The Department set forth that at the outset of the case, the extent of the children's "massive amount" of exposure to drugs, including heroin, was not known.

After removal, MC3 and MC1 tested positive for methamphetamine, amphetamine, morphine, codeine, and heroin. MC2 was nine months old, and her hair was not long enough for testing. For two years, the Department had offered services to address their substance abuse and related issues, and both Kyle and Danielle continued to abuse fentanyl, heroin, methamphetamine, oxycodone, THC, and other drugs. All the children had pneumonia when they were removed from the home, and Kyle and Danielle had been unwilling or unable to provide clothing, shoes, diapers, formula, or any necessities.

In the adjudication order, the circuit court found that the children were dependent-neglected on the basis of parental drug use, inadequate supervision, and medical neglect and determined that removal was necessary to protect their well-being. The Department was ordered to continue to provide services regarding the parents’ drug use and unfitness.

In the March 8, 2022 review order, pursuant to DNA testing, the court found that Kyle is the father of MC1 and MC2. At the April permanency-planning hearing, the circuit court found Cody Elkins is MC3's father, which also was confirmed by DNA testing. The court found that both Kyle and Danielle were only partially compliant with the case plan, and they had continued their relationship despite domestic-violence issues. The court found that the appropriate goal of the case was reunification with the concurrent goal of adoption.

On July 26, 2022, the Department filed a petition for the termination of Danielle's and Kyle's parental rights based on three statutory grounds: (1) Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)(a) (Supp. 2023) (twelve month failure to remedy); (2) Ark. Code Ann. § 9-27-341 (b)(3)(B)(vii)(a) (subsequent issues and factors); and (3) Ark. Code Ann. § 9-27-34l(b)(3)(B)(ix)(a) (aggravated circumstances). The Department alleged that it was in the children's best interest to terminate parental rights because they are adoptable and would be subject to potential psychological and physical harm if they were returned to their parents’ custody. Specifically, the Department contended that the parents still used illegal drugs, had not completed drug treatment or acquired appropriate housing, and none of the parents had found valid employment. Kyle and Danielle had been arrested on drug charges in January and April, and the charges had not been resolved.

Katheryn Burke, Danielle's mother, filed a petition to intervene in the case, which was granted. On August 5, 2022, Katheryn filed a motion for placement or, in the alternative, guardianship of all three children. Katheryn asserted that she lives in a four-bedroom home, and the children had spent extended amounts of time in her care prior to their removal from

Danielle's custody. Katheryn reasoned that the children's best interest would be served by placing them with her, a family member, and the court should give her preference.

On September 5, Cody executed his consent to the termination of his parental rights to MC3. On October 5, the court certified the consent, and it was filed with the court. Also on October 5, the circuit court held the termination hearing. At the hearing, Bridget Cornett, the family service worker for the case, testified that the parents had completed the drug-and-alcohol assessment but had not followed through with drug treatment, though Danielle did maintain her sobriety while she was incarcerated, and she completed parenting classes. Cornett testified that the Department had reached out to several family members, including Danielle's mother, Kyle's mother, and the Reeds (Cody's mother and stepfather.) The Reeds’ ICPC approval was pending at the time of the hearing. The Reeds had custody of Cody's older child, and they stated that they were willing to take MC1, MC2, and MC3, keeping the siblings together.⁴ Regarding Danielle's mother, Katheryn, as a potential family placement, the ICPC report had not been completed by the time of the hearing, and because Katheryn had a felony conviction and prior involvement with the Department, waivers from the parole board and the Department waiver board were necessary before she could be approved. Cornett recommended termination rather than guardianship because it was possible the parents would be incarcerated for a significant portion of the children's lives, and the children are very young and need permanency. Kyle's parents had stated they could

not take all three children, but they reported that Kyle had other family members who might be willing to take the children. Cornett explained that the grandparents told her they were going to speak with those family members, and the Department was "waiting for them to get us information." Cornett opined that the children should be kept together because they are tightly bonded and "feed off each other. They can't go anywhere without each other." She stated that further services would not help to reunite the family. The tribal representative of the Cherokee Nation of Oklahoma, Renee Gann, also recommended termination because MC3 needs "full permanency."⁵ Kyle did not testify at the hearing due to the pending criminal charges against him.

On December 29, the circuit court entered the order terminating all three parents’ parental rights. The court found that Cody consented to termination of his parental rights to MC3. Regarding Kyle and Danielle, the circuit court determined that the evidence supported the statutory grounds alleged in the Department's petition for termination beyond a reasonable doubt. The court also found that it was in the children's best interest to terminate Danielle's and Kyle's parental rights, finding that the children are adoptable and that

Bridget Cornett testified that the Department has been in contact with a paternal relative who is interested in adopting all three juveniles. This placement would keep the siblings together and would be ICWA compliant. Even if this placement failed, Ms. Cornett testified that the juveniles would still be adoptable as they are young, healthy, and good natured.

The circuit court also found that "termination of parental rights is the least restrictive permanency option for the juveniles." The court determined that there was potential for physical and psychological harm if the children were ever returned to their parents because each of the parents faced potentially significant jail time, and the parents had not seen the...