Ellis v. Ark. Dep't of Human Servs.

2016 Ark. App. 318

497 S.W.3d 720

Ray Ellis, Appellant

v.Arkansas Department of Human Services and C.E., Minor Child, Appellees

No. CV–15–1008

Court of Appeals of Arkansas, DIVISIONS I & II.

Opinion Delivered June 8, 2016

Tabitha McNulty, Arkansas Public Defender Commission, Dependency–Neglect Appellate Division, for appellant.

Jerald A. Sharum, Office of Chief Counsel, for appellee.

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

LARRY D. VAUGHT, Judge

Ray Ellis is appealing the Craighead County Circuit Court's order denying his motion for placement of his minor child, C.B., in the custody of his brother and changing the case goal from reunification to adoption with termination of parental rights. We affirm.

I. Facts and Procedural History

Ray lived with his wife, KayAnn Ellis, and her two children from a previous relationship, K.T.1 (born January 16, 2008) and K.T.2 (born February 14, 2012). On January 14, 2014, the Department of Human Services (DHS) exercised an emergency hold on K.T.1 and K.T.2¹ for truancy, neglect, and allegations that Ray had physically abused KayAnn.² K.T.1 and K.T.2 were subsequently adjudicated dependent-neglected.

KayAnn gave birth to C.E. on August 18, 2014, and he was immediately placed in DHS custody because his half-siblings had been adjudicated dependent-neglected. C.E. was then adjudicated dependent-neglected based on findings that KayAnn had tested positive for drugs at the time of his birth, his siblings were currently in DHS custody, and KayAnn had alleged that Ray had physically abused her. At the adjudication hearing, the court ordered Ray to complete parenting classes and a drug-and-alcohol assessment, maintain safe and stable housing, maintain stable employment, submit to a psychological evaluation, and attend domestic-abuse counseling, among other requirements of the case plan. DHS was ordered to make referrals for domestic-abuse counseling and conduct a home study on Ray's brother, Josh Ellis. The court entered an order expediting the home study under the Interstate Compact on the Placement of Children (ICPC) because Josh and his wife were both serving in the United States Army in Germany.

On December 12, 2014, the court entered a review order in which it found that KayAnn had tested positive for illegal drugs and was still living with Ray. The court also found that Ray had partially complied with the case plan by beginning parenting classes and attending a drug-and-alcohol assessment but that he had not completed parenting classes or attended any visits with C.E. since mid-November. Ray stated that his work as a truck driver prevented him from attending visits or parenting classes. He had not yet submitted to a psychological assessment or attended domestic-violence counseling. Ray was ordered to pay $45 per week in child support.

In July 2015, C.E.'s foster parents filed a motion for leave to intervene in the case, arguing that C.E. had been in their care for approximately a year and that they wished to adopt him. They stated that the dependency-neglect case was their only forum for filing a petition for adoption. Attached to the motion to intervene was the foster parents' petition to adopt C.E.

On August 3, 2015, Ray filed a motion asking the court to consider the home study that had been completed on his brother, Josh Ellis, and Josh's wife, Tamara Ellis. Ray also filed an answer opposing the foster parents' motion to intervene, and later, a motion to dismiss their petition to adopt C.E. DHS also opposed the foster parents' motion and petition.

On August 28, 2015, the court held a permanency-planning hearing for C.E., at which it also addressed the foster parents' motion to intervene and Ray's motion requesting that C.E. be placed with Josh.³ Ray, KayAnn, and DHS opposed the motion to intervene, while the attorney ad litem argued in favor of intervention. The court denied the motion to intervene as premature, stating that it would readdress the issue if the case goal later became adoption.

At the hearing, KayAnn testified that she had not gone to therapy as ordered and had not attended NA/AA meetings. She denied using illegal and prescription drugs for which she had tested positive. She denied that Ray was abusive to her. When asked if she had previously told DHS staff that Ray abused her, she testified that she had “said a lot of things” that were untrue due to pressure from DHS. KayAnn stated that she was in favor of C.E. being placed with Josh. KayAnn denied DHS reports that she was combative and out of control at visitation, requiring DHS to change her visitation schedule to allow for more supervision. Regarding a picture of KayAnn with a black eye, which she had reported to DHS as being a result of Ray's abuse, she testified that the attorney for DHS had instructed her to come to the department with a black eye and falsely accuse Ray of abuse. She stated that she hit herself in the face with a bottle and used makeup to create the black eye that she then blamed on Ray. KayAnn repeatedly denied making numerous other accusations of abuse against Ray. However, she admitted posting on social media an expletive-filled rant against the father of one of her other children in which she threatened that Ray would do physical violence against him.

Patricia Herring, a DHS family services worker, testified that Ray often missed therapy sessions due to his work schedule. Herring also testified that KayAnn had come to a DHS staffing with a bruise on her face and accused Ray of hitting her. She stated that Ray had always denied physically abusing KayAnn.

Herring testified that C.E. required some special services, including physical therapy. She stated that DHS's recommendation for C.E. was that he be placed with Josh in Germany, either through permanent custody or adoption. She stated that, other than completing therapy, Ray was cooperating with DHS and complying with the case plan. She explained that the reason DHS was not recommending that C.E. be returned to Ray's custody was that he lived with KayAnn, and his job as a truck driver would mean that day-to-day care of C.E. would fall to KayAnn. Herring testified that DHS believed it was in C.E.'s best interest to place him within the family and that she did not believe placing him with Ray's brother in Germany would diminish his relationship with his siblings, KayAnn's older children, who were also in foster care in Arkansas. Herring stated that she believed Josh would facilitate continued visitation with C.E.'s siblings despite the fact that Josh lived in Germany. When pressed as to why DHS prioritized C.E.'s relationship with an uncle he had never met over his relationship with the siblings he currently visited every week, Herring stated that DHS's preference for placement with Josh was due in part to the animosity that had developed between C.E.'s foster parents and his biological parents.

DHS program assistant Billie Williams testified that on or about March 23, 2015, KayAnn told her that Ray had stolen her prescription medication, they had argued over it, and he had hit her. KayAnn also told her that Ray had an outstanding warrant for hot checks and that he had admitted using crystal meth. Williams testified that on multiple occasions KayAnn was unable to be drug tested because she failed to give a urine sample, dropped the sample in the toilet, or provided an adulterated sample. Williams stated that during visitation with KayAnn and Ray, C.E. was content but would never laugh like he did with the foster parents. There were visits when DHS workers had to step in because KayAnn appeared to be under the influence of drugs.

Williams testified that C.E. saw his siblings for at least one visitation per week and that there was a bond between C.E. and his siblings. She said that the children played together during weekly visitation and that the older children often asked about C.E. Williams testified that in the previous year, Ray had attended only nine visits, despite the fact that he had the opportunity to visit C.E. twice per week. Williams also testified that KayAnn had appeared with a “significant injury” to her face and had stated that Ray had struck her in the head. KayAnn told Williams that she was going to file a police report against Ray. Williams stated that, during a staffing, KayAnn and Ray (who was not physically present at the staffing but appeared via telephone) had argued intensely and that she had worried about what would have happened had he been present, given the intensity of his anger.

Williams testified that C.E. was an extremely happy baby in his foster home and was “overly filled with excitement and love.” She stated that he reached for his foster mom and foster dad and constantly crawled to wherever they were. She stated that he “definitely has a very strong bond with the foster parents.” She stated that all his needs were being met in the foster home, “and above and beyond.” She explained that, at a previous point in the case, C.E. had been hospitalized with meningitis for approximately three weeks. During the hospitalization, his foster parents stayed by his side day and night, in shifts, despite having to drive back and forth to Memphis. She described the foster parents as very attentive to C.E.'s medical needs and reliable with transportation for C.E., rarely asking for assistance from DHS. Williams testified that, after being in the foster home for over a year, C.E. had made substantial progress, was developing normally, and was a normal and happy one-year-old child.

Kimberly Wilson, a foster-care supervisor, stated that KayAnn's visitation had to be scheduled at a time when a supervisor could be present because there had been numerous incidents in which DHS workers had been unable to calm KayAnn during visitations. Wilson testified that she had witnessed KayAnn and Ray argue and that KayAnn had accused Ray of physical abuse. Wilson stated that because there was an approved home...