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

2022 Ark. App. 146

643 S.W.3d 794

Kristen GIBBY, Appellant

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

No. CV-21-433

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered March 30, 2022

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Jonesboro, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Casey D. Copeland, attorney ad litem for minor children.

KENNETH S. HIXSON, Judge Appellant Kristen Gibby appeals after the Conway County Circuit Court filed an order terminating her parental rights to her children, TP (DOB 10-24-19) and TF (DOB 01-14-18). Appellant argues on appeal that (1) there was insufficient evidence to support the statutory grounds for termination and (2) there was insufficient evidence that termination was in the best interest of her children.¹ We affirm.

I. Relevant Facts

On April 14, 2020, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of TP and TF. In the affidavit attached to the petition, DHS stated that a seventy-two-hour hold was exercised over TP and TF on April 11, 2020, because the "[c]aretaker caused serious physical injury to the child or made a plausible threat to cause severe physical injury." A family-service worker (FSW) had averred that DHS received a report that then five-month-old TP had been admitted into the pediatric intensive care unit at Arkansas Children's Hospital with a "subdural Hematoma, petechia and bruise on her leg's chest, and tongue." The hospital staff reported to the FSW that appellant appeared not to be concerned about TP's brain injury, and Dr. Clingenpeel opined that TP's injuries were consistent with physical abuse. During an interview, appellant told the FSW that the injury occurred when she was giving her other child, TF, a bath. When she had finished, appellant claimed that her husband, Payton Lane Gibby,² was holding TP in his arms and that he told her TP was choking. Appellant said that TP "was pale for three seconds, went limp and then started turning purple."

Mr. Gibby's story was inconsistent. He could not remember the chain of events that happened earlier on the day of the injury or even whether he had been taking care of TP. Later, he stated that it was appellant who had "tucked the baby in on the couch before she left" that morning. He also reported that he had put TP in her highchair while appellant gave TF a bath, and when he came back, he noticed she was choking. Due to the inconsistent stories and allegations of physical abuse, DHS exercised a seventy-two-hour hold to ensure both children's safety.

The circuit court granted the petition, finding that probable cause existed for the removal, and a probable-cause order was filed on May 13, 2020. An agreed adjudication order was subsequently filed on June 16, 2020, finding the children dependent-neglected because "the history given about the injuries sustained by [TP] is at variance with medical opinion of Dr. Clingenpeel." The order further made the following findings:

The first contact of the Arkansas Department of Human Services arose during an emergency where immediate action was necessary to protect the health, safety and welfare of the juveniles and where preventative services could not be provided, specifically, on 4/11/20, [TP] was admitted to the Arkansas Children's Hospital PICU with bilateral subdural hemorrhage, extensive bilateral multilayer retinal hemorrhages through the periphery and bruising to multiple body surfaces. Kristen [Gibby] indicated that she was bathing [TF]. Kristen then located her husband, Payton Gibby, holding [TP]. [TP] was limp, pale and her eyes were closed. Mr. Gibby indicated [TP] had choked on her formula. Dr. A. Clingenpeel, MD treated [TP] at Arkansas Children's Hospital. Dr. Clingenpeel provided that in her medical opinion, the history given by Kristen [Gibby ] is at variance with the injuries presented.

(Emphasis added.) The goal of the case was set as reunification with a fit parent. Appellant was ordered to cooperate with DHS, comply with the case plan, and obey all orders of the circuit court; view "The Clock is Ticking" video; remain drug-free and submit to random drug screens; participate in and complete parenting classes; obtain and maintain clean, safe, and stable housing and employment; resolve all criminal issues; and allow DHS access to the home. Further, if requested by DHS, appellant was ordered to submit to a drug-and-alcohol assessment and follow any recommendations; submit to a psychological evaluation and follow any recommendations; and attend and participate in counseling and/or AA/NA meetings.

The circuit court held its first review hearing on September 3, 2020, and an order was filed on November 13, 2020. In its order, the circuit court noted that appellant was in compliance with the case plan and was attending counseling. However, the circuit court found Dr. Clingenpeel's testimony to be "highly credible" as to TP's injuries and that the injuries "are indicative of abuse, child abuse, and blunt force trauma." Therefore, the circuit court found that TP "was abused and that the previous testimony of Kristen [Gibby] and Payton Lane Gibby before the Court as to how the child's injuries were received is not credible."

A second review hearing took place on February 25, 2021. Regarding compliance with the case plan, the circuit court found that appellant had

housing, income, transportation, and has complied with counseling and other services. However, horrendous injury to a child occurred while the juvenile was in the care of the mother and father only, as testified to by the mother and father. Payton Lane Gibby, the mother's significant other, is incarcerated at this time for charges relating to the battery of the child. The mother and Mr. Gibby have given a number of explanations for what may have happened, but none of those explanations are plausible.... The Court specifically finds the testimony of Brandy Cochran is credible. The Court finds neither of the parents’ testimony was credible.

At this hearing, the circuit court changed the goal to adoption following termination of parental rights.

DHS filed a petition for the termination of parental rights on March 2, 2021, specifically alleging that appellant's parental rights should be terminated under the following grounds pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vi)(a) , (vii)(a) , and (ix)(a)(2) –(3) (Supp. 2021): a finding by the court that the juvenile or a sibling was dependent-neglected due to abuse that could endanger the life of the child and was perpetrated by the juvenile's parent, parents, or step-parent; subsequent factors; that the parent had committed or aided in a felony battery that resulted in serious bodily injury to any juvenile; and aggravated circumstances, specifically that there is little likelihood that services to the family would result in successful reunification and that a child or sibling has been neglected or abused to the extent that the abuse could endanger the life of the child. A termination hearing was held on April 8, 2021.³

At the termination hearing, the court first addressed IG's paternal grandmother's motion to intervene. Because all parties had not been properly served or had time to reply, the court dismissed the motion without prejudice and continued with the hearing.

Amy Thurman, an advanced practice registered nurse at a clinic in Morrilton, testified that prior to the event on April 14, 2020, which precipitated the admission at Arkansas Children's Hospital, she saw TP on February 25, 2020, when Mr. Gibby brought her into the clinic as a new patient. She saw TP again on April 8, 2020, when she was brought in by appellant due to a rash on TP's neck. Ms. Thurman was not aware of anyone else in the clinic seeing TP other than a nurse who handled check-ins. At both visits, TP was "awake, alert, well developed, well-nourished, pleasant, active." Ms. Thurman explained that she diagnosed the rash as a "yeast rash." She stated that there were no reports of TP having any problems eating, a black spot on her tongue, or eye issues.

Ashley Coffman, a relative of Mr. Gibby, testified that although appellant and Mr. Gibby would fight and appellant would get "frustrated" with the children, she had "never seen [appellant] physically or even verbally say something mean towards [her children]." However, Ashley testified that on March 21, 2020, about three weeks prior to the incident, appellant told her that she, the appellant, did not "have a connection" with TP and asked Ashley if she wanted to adopt TP. Ashley further testified that appellant had asked her about also adopting IG when he was born because appellant "didn't want him." Ashley testified that she had seen appellant "get aggressive" on more than one occasion. She described an incident at TP's birthday party in which appellant became mad, raised her voice, and started cussing at the adults.

Mr. Gibby's mother, Gena Coffman, testified that she has known appellant since appellant and Mr. Gibby married in November 2019. She testified that she could tell that appellant wanted TF, but not TP. She claimed that appellant had cussed at TP and would throw her down on the couch. She also stated that appellant and Mr. Gibby would fight and that appellant has a temper. Ms. Coffman testified that appellant, Mr. Gibby, and both children had been at her house earlier on the night of TP's injury. She stated that at one point, appellant took TP with her to the bathroom to give TP a bath. Ms. Coffman testified that she heard TP screaming and crying. When appellant came out with TP, Ms. Coffman gave TP a bottle. Shortly thereafter, appellant, Mr. Gibby, TF, and TP left. Ms. Coffman testified that later that evening appellant came back to her home, stating that TP had stopped breathing. Ms. Coffman explained that she went to appellant's home to help and...