Garza v. Ark. Dep't of Hum. Serv.

687 S.W.3d 895

2024 Ark. App. 276

Ildifonso GARZA and Shana Hembrey, Appellants

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

No. CV-23-846

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered April 24, 2024

APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT [NO. 34JV-21-131], HONORABLE ADAM G. WEEKS, JUDGE

Dusti Standridge, for separate appellant Ildifonso Garza.

James & Streit, by: Jonathan R. Streit, for separate appellant Shana "Hembrey.

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

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

CINDY GRACE THYER, Judge

₁Ildifonso Garza and Shana Hembrey each separately appeal the Jackson County Circuit Court’s order terminating their parental rights to their daughter, MC. Neither party challenges the statutory grounds for the termination; instead, they both argue that the circuit court erred in finding that termination was in MC’s best interest. We affirm.

On October 2, 2021, the Arkansas Department of Human Services (DHS) re- ceived a Garrett’s Law report that MC had tested positive for amphetamine at birth. When questioned by the family service worker, Hembrey admitted using methamphetamine the weekend prior, and her drug screen came back positive for methamphetamine and opioids. Garza was present at the hospital but refused to submit to a drug screen. Hembrey informed DHS that she did not want Garza involved and did not intend to place his name on the birth ₂certificate. Garza then left the hospital. As a result of their investigation, DHS placed a seventy-two-hour hold on MC.

On October 6, DHS attempted to contact Hembrey to assess her home. When DHS family service workers (FSWs) arrived at the address Hembrey had provided at removal, they were told that Hembrey did not live at that address but lived with her grandparents. When the workers went to the grandparents’ home, they found it to be clean and tidy except for Hembrey’s room, which was in disarray. The only baby item in the home was a highchair. There was no crib, bassinet, or clothing present. Hembrey was not present during the visit but agreed to travel to the DHS office for a meeting later that day. While there, she submitted to another drug screen, which revealed she was positive for methamphetamine, amphetamine, and opioids. She then admitted using controlled substances upon her release from the hospital. As a result, DHS exercised another seventy-two-hour hold on the child.¹

On October 7, DHS filed a petition for emergency custody and dependency-neglect naming Hembrey as a parent and identifying Garza as a putative parent. The affidavit in support of the petition set out the foregoing facts and stated that removal was necessary because Hembrey’s substance abuse seriously affected her ability to supervise, protect, or care for the child. The ex parte order for emergency custody was granted that same day.

In an October 13 order, the circuit court found that probable cause existed and continued to exist and that it was in the best interest of MC to remain in DHS custody. The ₃court further found that DHS had been involved with the family since December 2010 but that the services had not prevented removal because Hembrey had given birth to MC, who tested positive for methamphetamine. Hembrey attended the probable-cause hearing; Garza did not.

In a December 2 order, the circuit court adjudicated MC dependent-neglected due to parental unfitness caused by Hembrey’s drug usage. Garza failed to appear at the hearing, and the circuit court ultimately dismissed him from the action, finding that he had not established significant contacts with MC and that his rights as a putative parent had not attached. The court set a goal of reunification and ordered Hembrey to comply with the approved case plan.

In January 2022, Hembrey, who had been placed on probation for crimes committed in July 2019,² had her probation revoked. Upon revocation, she was sentenced to a total of thirty-six years in the Arkansas Department of Correction.

In March and August 2022, the circuit court entered review orders continuing the goal of reunification and finding that safety concerns prevented a trial placement with, or return of custody to, Hembrey because of her continued incarceration.

A permanency-planning hearing was held on November 1, 2022. After the hearing, the court changed the goal of the case to adoption. The court found that Hembrey had not ₄complied with the case plan and orders of the court; had not demonstrated progress towards the goal of the case plan; and was not working to remedy the issues that prevent the safe return of the juvenile. Specifically, the court noted that Hembrey remained incarcerated.

Shortly thereafter, on November 14, 2022, DHS filed a petition for termination of parental rights asserting multiple statutory grounds against Hembrey-twelve-month failure to remedy, subsequent other factors, aggravated circumstances, and incarceration.

On April 14, 2023, Garza signed an acknowledgment of paternity. On the same date, stating its intent to file an updated petition, DHS moved to dismiss its termination petition, which the court granted. Subsequently, Garza was recognized as a parent, was again added as a party, and was appointed counsel.

On June 26, 2023, DHS filed another petition to terminate parental rights, As to Hembrey, the petition again alleged twelve-month-failure-to-remedy, subsequent-other-factors, aggravated-circumstances, and incarceration grounds, As to Garza, it alleged the following grounds to support termination: noncustodial parent twelve-month failure to remedy, twelvemonth failure to provide significant material support or maintain meaningful contact, subsequent other factors, aggravated circumstances, abandonment, and incarceration.

A termination hearing took place on September 26. Garza and Hembrey testified, as did Natalie Hohn (the FSW), April Stokes (the FSW supervisor), and Hannah Briggs (the foster parent).

₅Garza testified that he believed MC to be his daughter, that he was present at the hospital when she was born, and that he was aware that she was placed in foster care shortly after birth. He admitted that he had refused the drag screen requested by DHS at the hospital but claimed he would have tested negative for illegal substances. He stated that he waited almost a year and a half to contact DHS because DHS told him it could not help him and that he would need a lawyer. He further explained that his father had died, and because he was absconding, he was afraid he would go to prison. He further admitted that his probation had been revoked and that he was serving a five-year sentence he had received for credit-card fraud. However, he claimed that he would not serve the entire five-year sentence and was set to be released on December 12.³ He also admitted that at the time of his arrest, he was found in possession of methamphetamine and was convicted of that charge as well.

Garza then testified that he had engaged in Zoom visits with MC after he had signed the acknowledgement of paternity and that they had gone pretty well. However, he had not had any face-to-face contact with MC for almost eleven months.⁴ When asked, he admitted he hud not paid any child support for MC but asserted that the court had never ordered him to pay any support for her either. He further noted that he had been paying child support for his other two children who lived with their mother. He stated he had taken parenting, ₆fatherhood, and money-management classes and intended to get his GED. He also claimed to own a home—the one in which he was arrested and found with methamphetamine—but acknowledged it was not suitable for MC.

As for his plans to parent MC, he stated he hoped to leave the county, get another house, and get a job at the steel mill in Osceola when he was released from prison. He believed he would be able to achieve his goals within three or four months after his release. Even though MC had spent her entire two years of life in foster care, he denied abandoning her and asked for more time and a chance to parent her.

Hembrey testified next and confirmed that she had been sentenced to thirty-six years in prison, was presently incarcerated, and had been incarcerated since October 24, 2021. She noted that she was four years and two months away from her release date. She claimed that she had participated in multiple programs while in prison, including parenting classes, and that she had enrolled in college courses in pursuit of a business degree.

As for visitation with MC, she claimed that she had been allowed Zoom visits with her and had attended them all. She admitted that the only in-person contact with MC occurred during the three weeks after MC’s birth and before Hembrey’s arrest. She acknowledged that for a period of almost one year thereafter, visitation did not occur because MC was staying with her sister, who was not on Hembrey’s approved visitor list at the jail. Hembrey argued that she would have bonded with MC during that time if she had been provided visitation.

₇As for her substance-abuse issues, Hembrey acknowledged she has a drug problem and had failed two drug screens but asserted that her drug issue was currently under control. She asserted that she had received a certificate for completing a substance-use rehabilitation class and had not had a positive drag screen for ten months. She complained that DHS had not provided her with any services other than Zoom visitation since her incarceration.

As for MC’s care, Hembrey asked that her parental rights not be terminated and that Garza be given the opportunity to parent MC. She explained that she had not placed Garza on MC’s birth certificate initially because they were not on good terms at that point. She also listed several relatives that she believed could take custody of MC. She indicated that she did not believe it would be hard on MC to be moved from...