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

2022 Ark. App. 242

646 S.W.3d 215

Crystal HUTTON, Appellant

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

No. CV-21-428

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered May 18, 2022

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

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

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

WAYMOND M. BROWN, Judge

Appellant Crystal Hutton appeals after the Lawrence County Circuit Court terminated her parental rights to her child, JBH (DOB 02-17-14). Appellant argues on appeal that (1) the Arkansas Department of Human Services ("DHS") failed to meet its burden of proof as it presented no medical evidence, despite the allegations supporting termination being firmly rooted in unremedied medical neglect and continuing medical risk; (2) that even if the circuit court could properly consider the required statutory grounds and best interest in the absence of medical-expert testimony, the evidence presented clearly demonstrated that time and resources changed the dynamic—not removing JBH from his mother's custody—as everyone charged with JBH's care, including feeding and behavioral control, faced the same struggles Crystal faced, but which improved as JBH grew in age and maturity; and (3) the circuit court abused its discretion in disallowing Crystal to introduce video evidence that clearly and pointedly negated the narrative asserted by DHS that Crystal could not control JBH when he was aggressive, and that error prejudiced Crystal because the court made findings against Crystal that the video refutes. We affirm.

JBH was admitted to Arkansas Children's Hospital (ACH) on February 16, 2017, due to being unable to walk and being in significant pain. He was subsequently diagnosed with moderate to severe malnutrition that led to multiple nutritional deficiencies, including scurvy and osteoporosis. He was also diagnosed with a food-aversion disorder. On March 1, DHS received a report of failure to thrive, malnutrition, and medical neglect after appellant had been consistently argumentative and noncompliant with any medical treatments and/or recommendations set forth by hospital staff. DHS contacted the family the same day and took a seventy-two-hour hold on JBH after concluding that appellant did not have the insight or mental capacity to make informed medical decisions regarding JBH's nutritional deficiencies. At the time of removal, JBH had just turned three and weighed only twenty-five pounds. DHS filed a petition for emergency custody and dependency-neglect and an accompanying affidavit on March 6.¹ The circuit court entered an ex parte order for emergency custody that same day. A probable-cause hearing took place on March 7. In the order entered the same day, the circuit court found that probable cause existed at the time of JBH's removal and continued to exist such that it was necessary for JBH to remain in DHS custody.

JBH was adjudicated dependent-neglected in an order filed on May 16. The circuit court found that JBH was subjected to medical neglect and that appellant had been noncompliant with medical treatment. The order stated in pertinent part:

[JBH] was subjected to medical neglect. [Handwritten annotation.] By his mother. The court notes that the mother took the juvenile to medical providers on numerous occasions. [End handwritten annotation.] The juvenile was admitted to Arkansas Children's Hospital originally due to a refusal to ambulate. He was diagnosed with being "markedly malnourished with multiple complications of his malnutrition including Hypothyroidism, vitamin D Deficiency osteoporosis and scurvy." Dr. Rachel Clingenpeel determined the proximate cause of his malnutrition was suspected to be an oral aversion but [handwritten annotation] medical neglect lack of recognition and understanding [end handwritten annotation] allowed it to progress to the severity reach at the time of removal which caused substantial harm to the juvenile. If his condition had continued unremedied, then, according to Dr. Clingenpeel, it would have been life threatening or potentially fatal. The hospital staff expressed concern about the mother's lack of insight regarding the juvenile's medical condition and her ability to care for him and make safe decisions for him. Medical records regarding the juvenile from Arkansas Children's hospital including a six-page summary from Dr. Clingenpeel, [handwritten annotation] and medical records from Pediatric Day Clinic [end handwritten annotation] were introduced into evidence.

The circuit court set the case's goal as reunification with a concurrent plan of adoption or permanent guardianship or permanent custody. Appellant was ordered to submit to a neuropsychological evaluation and follow the recommendations; get a physical exam; submit a completed affidavit of financial means and affidavit of background information to the court and to the Department; cooperate with the Department, comply with the case plan, and obey the orders of the court; view "The Clock is Ticking" video; remain drug-free and submit to random drug screens, with a refusal to comply and/or failure to produce a specimen within an hour being deemed a positive test; keep the Department informed of current address and notify the Department of any change in address or marital status; if requested by the Department, submit to a drug-and-alcohol assessment and follow the recommendations thereof and provide a copy of the results to the Department; submit to a psychological evaluation and follow the recommendations thereof and provide a copy of the results to the Department; participate in and complete parenting classes; obtain and maintain clean, safe and stable housing, with utilities turned on; obtain and maintain stable employment or sufficient income to support the family; resolve all criminal issues; allow the Division of Children and Family Services access to the home; if requested by the Department, attend and participate in counseling and follow the recommendations thereof; and if requested by the Department, attend AA/NA meetings and provide proof of attendance to the Department.

On June 22, 2017, appellant received a forensic psychological evaluation from Dr. Kristin Addison-Brown with NEA Neuropsychology. As a result, appellant was diagnosed with autism spectrum disorder (ASD) level 1, avoidant restrictive food intake disorder, borderline intellectual functioning (with an IQ of 72), obsessive compulsive personality disorder, and medical issues. Among other things, it was recommended that appellant seek a medical workup and inpatient treatment for her eating issues, an evaluation by a dietician, family therapy, and close collaboration between her providers. Dr. Addison-Brown opined that appellant's ASD and borderline intellectual functioning would create substantial difficulty with learning, recalling, and applying and comprehending complex information; and further, that appellant's own feeding disorder and lack of insight would preclude her ability to understand JBH's needs and rationale and for her to consistently and accurately implement recommendations for JBH's dietary intake. The evaluation suggested that intense treatment would likely be required.

In review orders entered on August 22 and November 14, the circuit court found that appellant was in compliance with the case plan and was demonstrating progress.

The circuit court held a permanency-planning hearing (PPH) beginning on February 20, 2018, and concluding on March 6. In the order entered on March 6, the circuit court found that appellant had complied with the case plan and orders of the court. It found that appellant was diligently working toward reunification and opined that placement of JBH in appellant's home should occur no later than three months from the date of the hearing. Appellant was ordered to cooperate with DHS, comply with the case plan, and obey the orders of the court; obtain and maintain stable income and housing; maintain a form of transportation or access to transportation for her appointments and to get to JBH's appointments; continue counseling; and maintain contact with DHS and discuss things with them.

In June 2018, a fifteen-month-review hearing was held at which the circuit court determined that the case goal should be permanent relative custody with a concurrent goal of reunification. The circuit court noted that although appellant had complied with the case plan, she "has had issues understanding how hot her home gets during visits and how her son is sweating. She has also struggled with disciplining [JBH] and with getting [him] to eat (he does so when told/redirected to eat by [DHS] staff). She also has issues with adapting when her schedule is disrupted or interrupted and had shown that she has to be reminded about [JBH's] feeding times." In July, JBH was placed in a provisional foster home with relatives, Cami and Bryan Alexander, who had come forward.²

In September, appellant began exercising eight-hour visits with JBH.

A review hearing was held on September 18. In the order filed on February 13, 2019, the circuit court noted that appellant had requested special accommodations under the ADA and that her visitation with JBH would increase from four hours once a week, to eight hours.³

On October 1, 2018, appellant filed a motion for services under the ADA as well as other things. DHS filed a response and supporting brief in response to appellant's motion on October 11, acknowledging that appellant's conditions are covered disabilities under the ADA and contending that it had attempted to provide individualized support and efforts to assist reunification between appellant an JBH.

Another review hearing was held on November 13. In the order filed on February 13, 2019,⁴ the circuit court ordered that JBH be referred for additional testing to determine whether he has autism.

On January...