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

533 S.W.3d 654

Laura MEYERS, Appellant

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

No. CV–17–622

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: November 15, 2017

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

Jerald A. Sharum, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

ROBERT J. GLADWIN, Judge

The Ouachita County Circuit Court granted permanent custody of the minor child, D.D., born June 23, 2014, to Bobby Delee, her father, and closed the dependency-neglect case that appellee Arkansas Department of Human Services (ADHS) had brought against D.D.'s mother, appellant Laura Meyers. Meyers argues on appeal that the trial court erred because she did not receive notice that permanent custody and a no-reunification-of-services request would be considered at the scheduled adjudication hearing. She also argues that the trial court's order is void because the trial court failed to find that the child had been adjudicated dependent-neglected and that the trial court erred because it failed to follow the required provisions of the juvenile code. Appellees ADHS and the attorney ad litem contend that this court should affirm the trial court's oral finding of dependency-neglect, enter the finding of dependency-neglect in writing, and affirm the child's placement with her father. Appellees also argue that we should reverse and remand the trial court's decision to close the case and not order reunification services because Meyers did not receive the required statutory notice before the case was closed. We reverse the trial court's order granting permanent custody to Delee, closing the case, and ordering no reunification services because Meyers did not receive the required statutory notice. We remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

ADHS filed a petition for emergency custody and dependency-neglect on February 13, 2017, and an ex parte order granting ADHS custody was filed on the same day. The petition alleged that D.D. was dependent-neglected based on parental unfitness. The attached affidavit of Bridgette Patterson, a family service worker (FSW) for ADHS, states that a report was received that D.D., who lived with Meyers, was covered from head to toe in roach bites. Patterson completed a health-and-safety assessment on January 31, 2017, and observed that the house was infested with roaches, two dogs were in the house and had left feces on the floor, the home was cluttered with clothes, and the sink was full of dirty dishes. Patterson also saw bites on the child's legs, arms, stomach, and back, and Meyers had not sought medical care for the child. Meyers told Patterson that she had been diagnosed with schizophrenia, ADHD, bipolar disorder, and a "split personality," but Meyers said that she did not take medication and had not been to a doctor or counselor for these issues. The affidavit described two prior agency involvements, one in Georgia, which was found to be unsubstantiated, and another in Arkansas on September 9, 2016, when Meyers took D.D. to Ouachita Valley Clinic where it was discovered that the two-year-old was behind on her vaccinations and was covered in a rash, thought to be scabies. Meyers told the clinic worker that D.D. had cockroach bites, and Meyers was covered in bites as well. Meyers told the clinic that she has three other children, two of whom were in their dad's custody because she had tried to kill him. The other child, who was born with a birth defect, had been placed for adoption. Meyers was told about services for D.D., such as speech and physical therapy, but Meyers said that she did not trust doctors and did not want anyone to come into her home. These allegations were found to be true, a protective-services case was opened, and ADHS attempted to provide services from October 2016 until January 2017, when Patterson conducted the health-and-safety check.

Following the entry of the emergency order, Meyers was appointed counsel, and on March 21, 2017, the trial court signed an order for compliance with Regulation 7 of the Interstate Compact on the Placement of Children (ICPC) to request a home-study assessment on Delee because he lived in Tennessee. On March 22, 2017, a probable-cause order was filed wherein the trial court found that the emergency conditions that caused removal continued and it was necessary that D.D. remain in ADHS custody. ADHS was ordered to develop an appropriate case plan for the child and family and to provide services as appropriate to achieve the goal of the case plan. The trial court found that Meyers had agreed to start counseling and complete her psychological evaluation before the adjudication hearing and ordered her to do so. An adjudication hearing was set for March 15, 2017; however, the hearing was continued until April 19, 2017.

Both parents attended the adjudication hearing with their counsel, and Patterson testified to the allegations set forth in the affidavit attached to ADHS's original petition. Photographs of Meyers's home taken during Patterson's January 31, 2017 visit were admitted in evidence. On cross-examination, Meyers's counsel asked Patterson what efforts were made to prevent having to remove the child from Meyers's custody. The following colloquy occurred:

ADHS COUNSEL : That's not relevant to the finding of dependency-neglect.

MEYERS'S COUNSEL : Are you not asking for a finding of dependency-neglect today?

ADHS COUNSEL : That's a different finding.

MEYERS'S COUNSEL : Are we going to have another hearing on it?

ADHS COUNSEL : That's a part of the disposition finding.

MEYERS'S COUNSEL : But the court's not going to make that finding today, so I'll reserve those questions. That's all I have, Your Honor.

Patterson was then questioned by the attorney ad litem representing D.D. At the conclusion of Patterson's testimony, the following colloquy occurred:

MEYERS'S COUNSEL : I just want to be clear on one issue. The Department today is not asking for a reasonable-efforts finding?

THE COURT : I think that what they are doing is, they're getting to this threshold and then we move into disposition. That's the point where we talk about reasonable efforts.

ADHS COUNSEL : Correct.

MEYERS'S COUNSEL : To prevent removal?

ADHS COUNSEL : Right.

MEYERS'S COUNSEL : Okay.

Meyers testified that she has children other than D.D. and that she had spent time in jail as a result of causing one child to have a broken tibia. She also said that she recalled stating in her psychological evaluation that she had tried to kill the father of two of her children. She said that

[a]fter many years of physical, verbal, psychological, and mental abuse, one day I just snapped on him. He kicked me in my back and the last thing I remember is the cops being at the house. From what they told me, they said I snatched him by the throat and that if he hadn't hit me in my ribs, he would have been dead. So, I personally don't have any recollection of it. I only have what I was told.

I couldn't even tell you where my children were at the time. When I blacked out, I had no clue where they were at. That doesn't happen frequently for me. It took nine years to happen once. I've been diagnosed with schizophrenia for as long as I can remember. If I can remember that far back, yeah, since I was a child. I stopped taking my meds for that diagnosis nine years ago.

I've been diagnosed with bipolar for the same amount of time. What happened in my childhood brought out a lot of unstable things and they had me on medications and I was taking the medications, but I was blacking out repeatedly. My body was not accepting the medications and I quit taking them. When I quit taking them, I stopped blacking out.

The child's fractured limb didn't happen during a blackout. That happened because me and my child's father had gotten into an argument and [the child] was crying and I laid him down on the bed and I didn't realize his leg was trapped up underneath him and when I put him down, it fractured his tibia.

On cross-examination by ADHS, Meyers admitted that the house had roaches and explained that she had tried to deal with them and had argued with her landlord about it for almost two years. She said that D.D.'s bites came from roaches, but she also said that they had gone camping and that D.D. had "mosquito bites and whatnot."

On cross-examination by the attorney ad litem, Meyers said that her first child had the broken tibia and now lives with his father. She said that this same man, who is also the father of her next two children, was the man she had tried to kill. She said that their third child was placed for adoption "because she was missing the right front part of her brain." She said that the child had first been placed in foster care at her request because her son had a violent tendency and she did not want him to beat the child. She said that her other two children had been in foster care because of the bad relationship she had with their father. She said that all of this had happened while she was living in New Jersey. She said that she then lived in Georgia for a time when she was with D.D.'s father. She said that child-protective services (CPS) in Georgia had been told that she had been sleeping with a hunting knife underneath her pillow. She said that it was not true and that CPS could not prove it. She also said that she had been told that she has five personalities. She stated,

Lucky you're just talking to me now. Just Laura Meyers. Yesterday was the day that they just all came out and I was snappy and whatnot, but my mom knows how to deal with it and she talks me out of it, so. It's not like I got violent or anything. I was just real, how do you say, annoyed?

The trial court questioned Meyers, and she said that she had lived in Arkansas for the last three years. When the trial court asked her the name of D.D.'s doctor, she...