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

2021 Ark. App. 404

636 S.W.3d 368

Dawn GAMBLE, Appellant

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

No. CV-21-155

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered October 20, 2021

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Andrew Firth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

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

WAYMOND M. BROWN, Judge

Appellant Dawn Gamble appeals the Washington County Circuit Court's order terminating her parental rights to her four children, IM (DOB 9-14-15), MM (DOB 11-11-16), RM (DOB 1-20-18), and GM (DOB 12-26-18).¹ Appellant does not challenge the statutory grounds for termination but rather argues that it was not in the children's best interest for her parental rights to be terminated since there was a lesser restrictive option to termination and because she did not pose a risk of harm to her children.² We affirm.

The Arkansas Department of Human Services (DHS) had been involved with appellant's family on and off for several years after three children were born with drugs in their systems.³ At the time of the children's removal, on August 2, 2019, the protective-services case opened after GM's birth was still open, and the family was living at Woodspring Suites. DHS provided services to the family during this time, including drug screens, home visits, family assessment, day-care referrals, housing referrals, assistance making medical appointments, and cleaning supplies. On August 1, while conducting a visit, DHS observed that the hotel room was filthy and in disarray; RM's neck had been injured by a neighbor's dog's collar and was red; there was rotten food in the refrigerator; the room was swarming with flies due to a pile of trash and dirty clothes containing feces; the bathroom smelled of feces and urine; the diapers and formula were outside in the van; MM had at least three teeth that were rotted to the gumline; and there were two dogs in the room.⁴ Both parents refused drug screens, stating that they would test positive for THC since they had tested positive the week before. Mobley, irritated by DHS's presence, ordered DHS out of the room. DHS returned the next day with the police due to the hostility experienced on August 1. The room was still in disarray, and at least one of the dogs had ticks. DHS explained that it did not believe the parents’ explanation about RM's neck injury and that there were concerns about inadequate supervision. GM had on a soiled diaper and MM's shorts were soaked with urine. Appellant yelled and tried to prevent the children's removal to the extent that she had to be arrested and removed from the scene.

DHS filed a petition for dependency-neglect on August 6, outlining the above history in an attached affidavit. The court entered an ex parte order for emergency custody the same day. A probable-cause hearing took place on August 9,⁵ and in the August 12 order, the court found that an emergency existed making it necessary for DHS to remove the children from the parents’ custody and that those conditions still existed. Appellant was granted supervised visits with the children and ordered to do certain things before custody could be restored to her. Appellant was ordered to refrain from using illegal drugs; to submit to random weekly drug screens; to obtain and maintain employment and stable housing adequate for the children; to maintain a clean, safe home; and to demonstrate the ability to protect the children and keep them safe.

The children were adjudicated dependent-neglected due to parental unfitness and neglect in an order filed on September 20.⁶ The circuit court specifically found that the children were neglected because: (1) the parents did not have a clean, safe, and stable home for the children at the time of removal, and (2) the children were so badly neglected that MM suffered from extensive dental issues (rotted teeth). The goal of the case was reunification with a fit parent. However, the circuit court stated that the parents needed to work on three major issues to get the children back: (1) be employed, (2) have a home, and (3) refrain from illegal drug use.

A review hearing took place on January 31, 2020. In the order entered the same day, the circuit court found that appellant had complied with some of the court's orders but that she did not have a stable home or a driver's license. It also found that DHS had made reasonable efforts to achieve the goal of reunification.

The permanency-planning hearing (PPH) took place on July 17. In the August 14 order, the circuit court found that the parents were not complying with the established case plans and orders and were not making significant, measurable progress toward achieving reunification. The circuit court changed the case's goal to adoption and termination of parental rights. The circuit court noted that appellant still did not have stability and had not maintained stable employment. It also stated that appellant had not demonstrated that she could safely and appropriately care for the children and keep them safe. Appellant was still allowed visitation with the children, but the circuit court noted that if she had a man around the children, the visits would stop. Additional findings of the court stated that appellant had not once been in full compliance, and that although appellant was making progress in therapy, her actions did not reflect the progress. The circuit court also noted that it was incorporating the closing statements of DHS and the ad litem as its own.

DHS filed a petition for the termination of parental rights (TPR) on October 6, alleging three grounds for the termination of appellant's parental rights to her four children: (1) twelve-month failure to remedy, (2) subsequent other factors, and (3) aggravated circumstances in that there is little likelihood for successful reunification.

The termination hearing took place on December 9. Christine Zini, of DHS, testified that she is the family caseworker and that the children were removed on August 2, 2019, due to their living situation, poor supervision, and MM's dental health (medical neglect). She said that GM was on special formula but that appellant did not have him on it. She stated that the protective-services cases on appellant's children began in 2016. Zini testified that the children were doing better since being removed from their parents’ custody. She said that the children are currently undergoing or will undergo several types of needed therapies. She stated that the children are placed with their paternal grandmother, who is interested in adopting them. She opined that the children are adoptable. She stated that TPR is in the children's best interest because they need consistency, they are receiving needed therapies, and they are doing well under their grandmother's care. She testified that the children were at risk of harm if returned to their parents because there was a lack of a stable home big enough to accommodate the children, and she was unsure whether day care or therapies would be continued if the children were returned. She said that although services had been provided to appellant, appellant was still unable to keep the children safe. She stated that appellant could not provide a safe, stable home for the children and could not provide transportation. Zini stated that appellant last showed up for a drug screen on October 31, and that appellant was positive for THC at that time. She said that continued services would not result in successful reunification with appellant and stated that DHS was recommending TPR.

On cross-examination, Zini testified that appellant consistently tested positive for THC on her drug screens. She said that appellant told her she was going to obtain a medical-marijuana card but that DHS had not been presented with one. She stated that appellant's visits with the children had generally gone well but that recently MM and IM have been angry and having issues following visits because they realize that appellant is no longer with Mobley.

On cross-examination by the ad litem, Zini stated that she had not been to appellant's new home because appellant had only recently moved there. She said that prior to moving there, appellant and her new husband, Aaron Johnson, were living with Johnson's step-grandfather and taking care of him. Zini testified that, before that, appellant and Johnson lived at a hotel. She stated that the children were removed from an inappropriate hotel room and that the conditions that caused removal had not been remedied. She said that appellant currently works about thirty-five hours every two weeks at McDonald's and does not make enough to support four children. She stated that appellant has not been consistently employed. She also stated that appellant had not made enough progress to have unsupervised visits, expanded visits, or trial home placements. She testified that appellant had not been in full compliance with the case plan and that there were not any services DHS could provide to appellant to help with reunification.

Appellant testified that she and Johnson currently live in a one-bedroom "tiny house" that they are renting. She stated that she has worked for McDonald's for about a month and that her first paycheck was $325 for two weeks. She said that she came in for drug screens until she moved out of Johnson's step-grandfather's apartment and had transportation issues. She also said that some of the drug screens conflicted with her work schedule. Appellant stated that she would be able to address the children's special needs and take them to the doctor if they were returned to her. She testified that she currently has access to her landlord's Chevy Sonic while the vehicle she purchased from him is in the shop getting fixed.

On cross-examination, appellant stated that the tiny home is more like a brown wooden shed that has been turned into...