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

683 S.W.3d 220

2024 Ark. App. 43

Charles Allen KIRTLEY, Appellant

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

No. CV-23-494

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered January 24, 2024

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43JV- 22-9], HONORABLE BARBARA ELMORE, JUDGE

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

Demarcus D. Tave, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

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

STEPHANIE POTTER BARRETT, Judge

₁Charles Kirtley appeals the Lonoke County Circuit Court’s termination of his parental rights to his son, MC, born January 2, 2022.¹ Pursuant to Linker-Flores ?. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), Kirtley’s counsel has filed a no-merit brief listing all rulings adverse to him in the termination hearing and asserting there are no issues that would support a meritorious appeal as well as a motion to withdraw as counsel. The clerk of this court notified Kirtley of his right to file pro se points, which he has done. We affirm the termination of Kirtley’s parental rights and grant his counsel’s motion to withdraw.

₂I. Standard of Review

[1, 2] Termination-of-parental rights cases are reviewed de novo, and we will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Morgan v. Ark. Dep’t of Human Servs., 2021 Ark. App. 101, 617 S.W.3d 743. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Griffin ?. Ark. Dep’t of Human Servs., 2017 Ark. App. 635, 2017 WL 5762415.

II. Facts

DHS filed a petition for ex parte emergency custody of MC on January 7, 2022; Kirtley was named as the putative father in the petition. In the attached affidavit, the family-service worker alleged that MC had tested presumptively positive for methamphetamine at birth; his mother, Sara Jenkins, had limited prenatal care, had exposed MC to syphilis, and had admitted using methamphetamine while pregnant; and Jenkins had disclosed that both she and Kirtley used methamphetamine, although they both had tested negative for illegal substances on January 4. Jenkins and Kirtley lived together but were not married; neither had stable employment, although Kirtley cut firewood, scrapped metal, did mechanic work, and performed other odd jobs to earn money. When the family-service worker visited the home, it was so cold inside she could see her breath; the home was in need of repairs; and it did not have electricity or a working refrigerator. The circuit court signed an ex parte order granting DHS emergency custody of MC.

₃A probable-cause hearing was held on January 12, after which the circuit court continued MC’s custody with DHS. The circuit court adjudicated Kirtley MC’s father based on a signed acknowledgement of paternity entered into evidence at the hearing. Kirtley was awarded supervised visitation three times a week for one and a half hours. He was ordered to complete parenting classes; to participate in individual counseling; to submit to random drug screens at least twice a month; to remain drug-free; to undergo a drug-and-alcohol assessment and follow any recommendations; to enter and complete residential treatment for substance abuse as recom- mended; to attend AA/NA meetings at least twice a week and provide documentation of attendance; to obtain and maintain stable housing and employment; to maintain stable income; to complete a psychological evaluation; to attend visitation; and to comply with the terms of the case plan and maintain contact with DHS.

An adjudication hearing was held on February 22; MC was adjudicated dependent-neglected by Jenkins’s stipulation that she was an unfit parent due to drug use. Custody of MC was continued with DHS; the goal of the case was reunification with a concurrent plan of permanent custody with a family member.

A review hearing was held on May 22; in the order from that hearing, the circuit court found that both Kirtley and Jenkins were noncompliant with the case plan; the goal of the case remained reunification with a concurrent plan of permanent custody with a relative. Each parent was awarded one-hour visitations twice a week, but they were ordered not to visit at the same time. A second review hearing was held on August 9; custody of MC remained with DHS with reunification as the goal and a concurrent plan of permanent ₄custody with a relative. Although the circuit court found that both parents were partially compliant with the case plan, it specifically noted that the main issue was drug use, which was not being addressed, and that there had been no progress with that issue during the eight months the case had been open.

The attorney ad litem filed a petition to terminate parental rights on February 6, 2023. The grounds for termination relating to Kirtley were that MC had been adjudicated dependent-neglected and had continued out of the home of the noncustodial parent for twelve months, and despite a meaningful effort by DHS, the conditions necessitating removal had not been remedied; other factors arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of custody with the parent was contrary to the child’s health, safety, or welfare, and the parent had manifested the incapacity or indifference to remedy the issues; and the parent had subjected the child to aggravated circumstances. The attorney ad litem further alleged that it was in MC’s best interest for parental rights to be terminated.

A permanency-planning hearing was held on March 9. In the resulting order, the circuit court noted that Jenkins had voluntarily relinquished her parental rights, and it changed the goal of the case to adoption as to Kirtley, explaining that it did so because Kirtley had not completed any requirements in the case plan, nor had he made any significant progress; there were health and safety concerns regarding his ability to care for MC, including his continued drug use, refusal to complete inpatient rehabilitation, lack of employment and stable income, and inability to provide a clean and safe environment for MC. The circuit ₅court specifically found Kirtley had not completed parenting classes; had not attended AA/NA meetings; had not completed thirty days of inpatient rehabilitation as recommended by his drug-and-alcohol assessment; had tested positive on multiple drug screens; had not obtained or maintained employment; had not maintained an appropriate house; and had attended only minimal counseling. The circuit court continued supervised visitation but noted that if Kirtley was disruptive, it would be ended immediately.

The termination-of-parental-rights hearing was held on April 29, 2023. Joy Brewer, a DHS program assistant, testified that she facilitated visitation for Kirtley; she said Kirtley was always attentive to MC during visitation but that he had never been given unsupervised visits or increased visitation. She went to Kirtley’s house in March 2022; he was not home, but she saw piles of "stuff’ outside the house, including two partially burned piles of trash, and metal was strewn throughout the yard, posing a safety hazard for a young child.

Whitney Bradley, Kirtley’s caseworker, testified that Kirtley had completed his drug-and-alcohol assessment on March 14, 2022, and the report recommended that he complete thirty days of residential treatment; however, as of the date of the termination hearing, he had not completed any treatment. She said that Kirtley missed multiple intake appointments, and there were a couple of times where he showed up but was not allowed to stay. The last attempt at Inpatient treatment was on March 1, 2023, but Kirtley left on March 5, stating that he could never be a parent to his son and that he would just let his foster parents have him. Bradley testified that Kirtley had never completed intensive outpatient drug treatment, and that drug use continued to be an issue in the case. She stated that she ₆had taken pictures of the inside of Kirtley’s home on March 1, 2023, and in her opinion, it was not appropriate for a child MC’s age, and the outside of Kirtley’s property was still a health-and-safety risk for a child, even though Kirtley asserted that he had made improvements in the yard. She stated that running water had only recently been restored in the house after being shut off for about a year, and she had not received notice that the electricity had been restored. She testified that Kirtley had completed only one-half of his parenting classes; and while he provided a clean drug screen on the day of the termination hearing, she said that he historically did not test clean, with positive drug screens usually for methamphetamine and amphetamines, and she did not believe he had resolved his drug issues. Kirtley had not provided her with any proof of income, although he had provided her with proof of attending AA/NA meetings since the goal of the ease had been changed to termination. She testified that Kirtley had not made diligent efforts toward reunification, nor had he made substantial measurable progress, and she recommended terminating Kirtley’s parental rights because it was in MC’s best interest to do so. She was concerned that MC would be subjected to health-and-safety risks if Kirtley was given custody due to Kirtley’s continued drug use, his lack of employment, the lack of electricity in the house, and the environmental conditions of the house. She said that there was nothing more DHS could offer Kirtley to help him resolve those issues, and she did not believe he could resolve the issues even if given more time. Bradley testified that MC has no adoption barriers; there were 363 matches for his...