Phillips v. Ark. Dep't of Human Servs. & Minor Children

2019 Ark. App. 383

585 S.W.3d 703

Dalana PHILLIPS, Appellant

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

No. CV-19-315

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: September 18, 2019

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

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

ROBERT J. GLADWIN, Judge

Appellant Dalana Phillips appeals the January 14, 2019 order of the Crawford County Circuit Court terminating her parental rights to her three minor children, R.M., S.M., and C.P. Dalana makes a limited argument that termination of her parental rights was not in the children's best interest because the children were living with their grandparents. We affirm.

I. Facts and Procedural History

On May 24, 2017, at approximately 1:00 p.m., officers from the Van Buren Police Department were called to 1015 Twilight Lane after receiving a report that a child had been left home alone. Once on the scene, Officer Dewayne Richesin called the Crawford County Department of Children and Family Services for assistance. Family Service Worker (FSW) Crystal Mikus arrived at the residence at approximately 2:15 p.m. and was met by Officer Richesin, who explained that five-year-old C.P. was home alone because his father, Aaron Matevia,¹ ran from the residence when Officer Richesin entered the residence and noted the apparent drug use by Aaron.

FSW Mikus and Officer Richesin then spoke with R.M.'s teacher and counselor from Rena Elementary who had originally called for assistance to the residence. After gathering information on when the other two siblings would arrive home on the school bus, FSW Mikus and Officer Richesin called several phone numbers in an unsuccessful attempt to reach Dalana. The children's grandmother arrived at the residence and explained that Dalana did not have a phone and that she did not have a way of reaching her daughter. By this time, Aaron had been located and placed under arrest on multiple charges and warrants. FSW Mikus advised the grandmother that the children would be taken into custody if Dalana was not located. At approximately 3:35 p.m., R.M. and S.M. arrived at the residence from school, at which time FSW Mikus placed a seventy-two-hour hold on all three children.

The following day, May 25, at 9:00 a.m., Dalana arrived at the Crawford County Arkansas Department of Human Services (DHS) office to speak with FSW Mikus. Dalana stated that she was currently in drug classes as a condition of her parole and had been clean since she left prison. FSW Mikus administered a drug screen on Dalana at 9:30 a.m., and she tested positive for amphetamines, methamphetamine, and oxycodone. Dalana admitted that she had used drugs the previous night but stated that she is not a regular user.

On May 26, DHS filed a petition for emergency custody and dependency-neglect. The court entered an emergency order and found that probable cause existed to not only remove the children from the home but also to maintain them in DHS custody.

Pursuant to a hearing held on March 31, 2017, by order entered July 13, the court found that at the time of removal, Aaron had been arrested, Dalana could not be found, and at the time of contact with her the day after the children were removed, Dalana tested positive for amphetamines, methamphetamine, and oxycodone in spite of being on parole and in drug court. Based on those findings, the court adjudicated the children dependent-neglected because they were subject to "neglect, inadequate supervision and parental unfitness due to the caretakers being unwilling or unable to meet the children's needs for food, clothing, shelter and/or medical or mental health care; allegations involving physical and sexual abuse; and the caretakers' current substance use seriously affecting their ability to supervise, protect, or care for the juveniles." The court set a goal of reunification and ordered Dalana to complete services.

On July 31, the Choctaw Nation of Oklahoma filed a notice of intervention asserting the children are Indian children under the Indian Child Welfare Act (ICWA). The court accepted that intervention on August 1.

A review hearing was held on November 16. Although Dalana did not attend because she was incarcerated, the court found that she had partially complied with the case plan and orders of the court. The court ordered her to continue complying after being released.

A second review hearing was held on March 1, 2018. Dalana had been released from incarceration and was in attendance. In an order dated the same day, the court found that she again had partially complied with the case plan and orders of the court; however, the court characterized Dalana's compliance as minimal because although she was cooperating with DHS, she remained unemployed, did not have stable housing, and had tested positive for illegal substances during the review period. The court further found that Dalana had minimally benefited from her progress regarding case-plan goals. The court kept the goal of reunification but set a concurrent goal of placement with a fit and willing relative because the case-plan requirements were incomplete.²

A permanency-planning hearing was held on May 17, 2018. The court found that Dalana, who was in attendance, had not complied with the case plan or the orders of the court because she had admitted using methamphetamine during the review period; she did not have stable and appropriate housing; and she again was incarcerated due to parole violations during the review period. However, the court also found that Dalana had visited with her children regularly, she had displayed appropriate parenting techniques, and she was scheduled to enter inpatient treatment within the week. Because Dalana was bonded with the children, the court kept the goal of reunification but also continued a goal of placement with a fit relative. The court also ordered that reunification services continue.

At the September 13, 2018 review hearing, the court found that Dalana had not complied with the case plan or the orders of the court because she (1) left inpatient treatment early; (2) tested positive for methamphetamine and amphetamines during the review period; (3) remained incarcerated; (4) had not complied with her parole conditions; (5) had no housing, employment, or transportation; (6) had not cooperated with DHS; and (7) had ceased participating in counseling services. The court noted, however, that Dalana continued to visit her children and displayed appropriate parenting skills while visiting. The court entered a goal of "establishing a guardianship" because "the parents should continue to work on the goals of the case plan."

DHS filed a petition to terminate parental rights (TPR) on November 2, 2018, alleging several of the nine enumerated statutory grounds against Dalana and arguing that TPR was in the children's best interests because adoptability was not a factor in achieving permanency for the children and that they would be subject to serious physical and emotional harm if returned to Dalana's custody. DHS cited Dalana's general instability, continuing legal issues, and "persistent substance abuse issues" to support its allegations of harm.

A hearing on the TPR petition was held on January 3, 2019. At the hearing, Aaron, the children's father, testified about his progress and struggles during the case. As for visitation and his relationship with the children, he said he has a good relationship with them and loves them. He stated that he enjoys spending time with them and wants to continue to have a relationship with them and provide support for the future. He noted that he made all but two of his visits with the children. He said that he did not see the kids outside of his visitation even though they are placed with his father because of the court's orders.

In discussing the circumstances of the children's removal, Aaron explained that he had been watching the children that day at Dalana's house because she had to appear in court. He described the house as being in average condition, saying there might have been a few dirty clothes or dishes around, but there were no bugs or foul odors. He said that the drugs he used that day were his and that Dalana had nothing to do with the children's removal. He said he had no issues with the way Dalana took care of the kids, calling her a "good mom" and saying that she met all their needs.

Dalana testified and acknowledged that the children had been removed from her custody nearly two years before the hearing and that they could not be returned to her because she had tested positive for methamphetamine. She stated that she had been released from jail in October 2017; had obtained a job in November 2017 that she still had as of January 2019; that she had completed Gateway's inpatient program in July 2018; and that she was currently attending an outpatient program at Harbor House. She admitted relapsing after completing inpatient treatment, but she noted that she had not had a positive drug screen since July 2018, some seven months before the TPR hearing. She also noted that aside from being incarcerated for ninety days, she had not missed a single class or session despite having to attend twice a week.

Dalana admitted that she had been incarcerated several times during the case but explained that she was currently on parole and reported to a parole officer every two weeks. She then conceded that she had pending felony charges in Crawford County for possession of drug paraphernalia. She testified that she had lived with her father since being paroled and acknowledged that although he had a true finding and criminal conviction for sexual abuse, it was due to lies she told about him when she was eleven years old, after her parents had divorced and her mother entered a partying lifestyle of which her dad did not want to be a part....