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

2021 Ark. App. 149

KOURTNEY NOE APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

No. CV-20-648

ARKANSAS COURT OF APPEALS DIVISION IV

APRIL 7, 2021

APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT

[NO. 16JJV-19-141]

HONORABLE MELISSA BRISTOW RICHARDSON, JUDGE

AFFIRMED

ROBERT J. GLADWIN, Judge

Kourtney Noe appeals the Craighead County Circuit Court's order terminating her parental rights to her sons, AN1, born August 6, 2010; and AN2, born May 18, 2012. She argues that the circuit court clearly erred in finding that termination was in the boys' best interest. We affirm.

I. Facts

On April 15, 2019, appellee Arkansas Department of Human Services (DHS) filed a petition alleging that both boys were dependent-neglected as a result of abuse, neglect, or parental unfitness. An ex parte order for emergency custody was granted to DHS based on the allegations in the affidavit attached to the petition.

The affidavit reflects that the boys had been in foster care from June 29, 2017, until August 10, 2018, when they were returned to Kourtney's custody. Shortly thereafter, on October 27, a DHS differential-response case was opened when police found Kourtney asleep in the front seat of her car at a Taco Bell. Kourtney told the officers that she had "three shots and two beers." Officers searched her car and found digital scales and a small baggy containing suspected methamphetamine. Kourtney was charged with possession of methamphetamine or cocaine, less than two grams; possession of drug paraphernalia; and driving while intoxicated, first offense.

On January 23, 2019, a protective-services case was opened because Kourtney admitted giving AN1's attention-deficit hyperactivity-disorder medication to AN2. On April 10, the Jonesboro Police Department informed DHS that Kourtney had been arrested and incarcerated and that there was no caregiver for the boys. Police advised that Lynn and Judy Sharp, maternal grandparents, had received a call from Cherish Bogard, who asked if they could "get the boys." The Sharps asked Bogard to contact DHS or the police. Thereafter, police located the boys at 1100 Cartwright Street, which was a residence known to the police for criminal activity. The boys were with Judy Lock, who stated that Kourtney would often leave the boys with her and that she had no clothing or medication for them. She had asked Bogard to contact the Sharps. DHS placed a seventy-two-hour hold on the boys, who described during transport to their placement that Lock's husband had threatened them with a gun, that Lock's son had been fighting with another man over a gun, and they had been threatened with a knife.

A probable-cause hearing was held on April 18, and Kourtney stipulated both to the facts alleged in the affidavit and that DHS had made reasonable efforts with the family in the past. The circuit court found probable cause that the emergency conditions that caused removal from Kourtney's custody continued and that it was necessary for DHS to maintain custody of the boys. Kourtney was granted supervised visitation, and DHS was ordered to assess the Sharps as potential placement alternatives. Kourtney was ordered to complete the standard welfare orders; submit to a drug-and-alcohol assessment and follow the recommendations; attend and participate in counseling; attend AA/NA meetings; and submit to inpatient long-term substance-abuse treatment.

The boys were adjudicated dependent-neglected after a hearing on May 16, and the finding was based on neglect and parental unfitness.¹ DHS was found to have made reasonable efforts to prevent removal. The court noted that Kourtney admitted drug use and abuse; that she was facing felony drug charges; that she chose to leave the children at an inappropriate placement at which they were threatened with a knife and a gun; and that she failed to provide proper clothing and medication for them. A reunification goal was established.

DHS filed a motion to terminate reunification services on May 19 alleging that the children had been subjected to aggravated circumstances and citing the facts as alleged in the affidavit attached to its original petition. DHS also alleged that Kourtney had tested positivefor methamphetamine and amphetamines on April 18 and that on May 3, she had tested positive for marijuana. DHS claimed that the boys were back in DHS custody only eight months after custody had been returned to Kourtney in August 2018, and the previous and current cases shared the same issues that prevented return of the boys to Kourtney's custody-substance abuse and inappropriate housing—despite the family being offered numerous services in the previous and current cases.² Further, Kourtney was facing pending felony drug charges. DHS argued that Kourtney's situation demonstrated that she did not benefit from the services previously offered and that the circuit court should make a determination that there is little likelihood that offering further services would result in successful reunification.

A hearing was held on June 28, and the court granted the motion to terminate reunification services, finding that it was in the boys' best interest. The court cited the previous DHS protective-services case, Kourtney's admitted recent drug use and positive tests for methamphetamine and amphetamines, and the family's inappropriate and unstable housing. The court ordered that all reunification services cease and that visitation would continue.

A permanency-planning order also resulted from the June 28 hearing. The court found that Kourtney was in partial compliance with the case plan and court orders in that she was in inpatient substance-abuse treatment, had watched "The Clock is Ticking" video, and had completed parenting classes. The court found that she had not provided DHS with proof of employment, attended support groups, or gained or maintained stable housing. The goal of the case was changed to guardianship with Lynn and Judy Sharp.

A review hearing was held on October 8, and the court found that Kourtney had not provided DHS with proof of employment, housing, or completion of other services. The goal of the case was subsidized guardianship with Lynn and Judy Sharp, and a concurrent goal was not ordered.

On February 12, 2020, DHS filed a petition for appointment of Judy and Lynn Sharp as guardians of the person of both boys. The petition alleged that Kourtney was allowed supervised visitation for at least four hours a week, with the Sharps having discretion to expand it. An "Agreed Review Order" was filed on April 6, and the guardianship goal remained.

On June 4, DHS filed a petition for termination of parental rights (TPR). It alleged the following grounds: (1) the court had found the boys dependent-neglected as a result of neglect or abuse that could endanger their lives, which was perpetrated by Kourtney. Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a) (Repl. 2020); and (2) Kourtney was found to have subjected the boys to aggravated circumstances, meaning that there is little likelihood that services to the family would result in successful reunification or that the boys had beenneglected or abused to the extent that the abuse or neglect could endanger their lives. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) & (iii).

In its petition, DHS alleged facts on which it relied to support the statutory grounds. These facts included those alleged in the original petition and added that on September 1, 2016, Michael Anchor, Kourtney's boyfriend, was found to have spanked AN1, leaving bruises and welts on his legs and that when the family moved to Texas, DHS closed its protective-services case. It explained that on June 15, 2017, DHS again became involved with the family when Kourtney did not have stable housing and tested positive for methamphetamine and amphetamines. Also, on January 23, 2020, Kourtney had pleaded guilty to DWI and possession-of-drug-paraphernalia charges, and she was sentenced to thirty-six months' probation and twelve months' suspended imposition of sentence. Finally, DHS alleged that Kourtney is living with Michael, a previous offender who had given AN1 bruises and welts.

A permanency-planning hearing was held on June 5, and the circuit court found that DHS had made reasonable efforts to provide services to the family. The court found that Kourtney had not maintained sobriety given her admission of recent marijuana use and her guilty plea to a drug-paraphernalia charge. Further, Kourtney is living with Michael, who has a true finding against him for giving bruises and welts to AN1. The court set concurrent goals of adoption and guardianship with Judy and Lynn Sharp and ordered that the boys remain in DHS's custody. The court ordered that DHS could drug screen Kourtney before visits if necessary, and no other services were ordered.

At the TPR hearing, Kourtney testified that she lives with Michael and that his placement on the child-maltreatment registry is being appealed. She said that she had never known Michael to physically discipline the boys and that she did not know of the 2016 allegation against him regarding AN1 until June 2020. She said that if that finding were not overturned, she would move out and that she would do what she had to do for her kids. She said that she had completed drug-abuse treatment and that she had stopped using methamphetamine. She said that she has had a job at Buffalo Wild Wings since February 2020. She acknowledged DHS involvement with her family since 2015, and she asked that guardianship be given to her parents rather than termination of her parental rights.

Judy Sharp testified that the boys are her grandchildren and that they have been in her home for almost four years. She said that she "had been of the mindset" that she wanted guardianship but that her feelings changed. She said that she and her husband had asked about adoption and guardianship and discussed what would be best for the boys. She sai...