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

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2023 Ark.App. 219

JUSTIN RICHIE APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

No. CV-22-676

Court of Appeals of Arkansas, Division II

April 12, 2023

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO 60JV-20-585] HONORABLE TJUANA C. BYRD, JUDGE

Dusti Standridge, for appellant.

Dana McClain, attorney ad litem for minor child.

MIKE MURPHY, JUDGE

Justin Richie appeals the July 27, 2022 order terminating his parental rights to his two children, MC1 and MC2 (ages four and two at the time of termination). On appeal, he argues that the grounds pleaded do not support the termination of his parental rights and that termination of his parental rights was not in the children's best interest. We reverse and remand.

MC1 and MC2 were taken into custody of the Arkansas Department of Human Services (DHS) in August 2020 when they were removed from the custody of their mother, Natalie Edwards, due to her drug use. Justin was named as a putative father. The children were subsequently adjudicated dependent-neglected, but the court explicitly stated that the children were not removed from Justin's custody, and it was declining to address if he contributed to the dependency-neglect or his fitness. Justin did not participate in the first review hearing but was present for the second review hearing, which took place in April 2021. At this hearing, he was named a father of MC1 and MC2 and added as a defendant to the case.

A permanency-planning hearing was held in August 2021. Although he was found to be MC1 and MC2's parent, Justin was not represented by counsel. At that hearing, he testified that he had allowed Natalie to live with him some while she was homeless but that she was not living with him at the time of the hearing. He explained that he missed his psychological evaluation and parenting classes because of work. His home study was not approved because he was allowing Natalie to stay with him. He said that he has been sober since his release from prison four years ago for possession of controlled substance. He is on parole and submits to random drug screens for parole. The court ultimately found that Justin was in partial compliance but still changed the goal of the case to adoption.

DHS and the attorney ad litem filed a joint petition to terminate the parental rights of both parents, but at the termination hearing, Justin still had not been appointed counsel. The court terminated Natalie's parental rights and continued the matter as it pertained to Justin. On March 7, 2022, the ad litem, on behalf of the children, petitioned to terminate Justin's parental rights, alleging the grounds of subsequent factors and aggravated circumstances.

The court heard from several witnesses at the termination hearing.

Justin testified that he lives in North Little Rock, and he used to be in a relationship with Natalie. He said their relationship was rocky and centered on drug use. When DHS told him, around January or February of 2022, that his relationship with her was a barrier to getting his kids back, he said that he had no intention of being around her anymore and would get a restraining order if necessary. He admitted that, around October of 2021, he thought of Natalie as "the one" (and had posted about it on Facebook), but that since then he has spoken a lot with his counselor and mentors, and everyone has impressed on him that if he wants his children back, he cannot have Natalie around. He testified that he now understands having her in the children's lives is not good for them.

He testified that his sobriety date is September 26, 2021. He began inpatient drug treatment that day and completed the treatment on October 27, 2021. He then actively participated in an intensive outpatient program, and he still attends NA meetings. He has completed every requirement DHS has asked of him and he testified that he has a great relationship with the children's current and former foster parents.

Justin has two other children ages ten and thirteen. He shares custody of those children with their mother. They lived with him before the COVID-19 pandemic, but he was not able to facilitate both Zoom school with them and work, so they went to live with their mother. He has them every weekend, there are no restrictions, and they have never been taken from him.

Justin is a foreman for a plumbing company; he makes twenty-five dollars an hour; he is current on his bills; he has reliable transportation and a driver's license with no restrictions; and he is active at New Life Church. He said he is on parole from a charge four years ago, but it will be finished in about a month. He had only one violation in that entire time, and when he completed rehab, he was placed back on parole without restrictions. He is randomly drug screened as a part of his parole. He has a support system in place and completed counseling the week before.

Dr George DeRoeck testified next. He testified that he conducted a psychological evaluation on Justin on January 18, 2022. At that time, Justin self-reported that he and Natalie had been separated for twelve months. Dr. DeRoeck said that if he had known Justin and Natalie had actually been together during that time, it would have changed his evaluation. He diagnosed Justin with avoidant antisocial disorder. He said that due to the volatility of Justin and Natalie's relationship, Justin's reunification with the children should be a slow process, six to eight months from the time Justin achieved sobriety.

The court also heard from Amanda Joshlin, a social worker who completed Justin's home study a year earlier. She said that the only reason the home study was denied was because Natalie was living there. She was concerned Justin did not seem to understand the problem with having Natalie there. Courtney Parnell, the CASA advocate, said that Justin had told her in January 2022 that he was not in a relationship with Natalie. Courtney's concern was that Natalie might show back up if they were to go home with Justin. She also said Justin's visits with the children were appropriate.

James Skelton, Justin's peer-support specialist and the executive director of Natural State Recovery Centers; and Dwight Merritt, Justin's therapist, both testified to Justin's commitment to sobriety and his children, his overall stability, and his lack of a relationship with Natalie. Merritt testified that he did not know exactly when Justin's relationship with Natalie ended but that they spoke of it as it related to his past.

Jamie Tacito, a caseworker for Connected Foster Care (a private foster agency contracted by DHS), testified that Justin has made almost every visit with his children, there is a bond between the children and Justin, and that Justin is always prepared and appropriate at the visits. She said he is a proactive parent and asks if there is anything else he can be doing, without prompting. Justin has had six unsupervised visits with the children, and she supports reunification. Melissa Trotter, the current DHS caseworker on the case, stated Justin had completed all services ordered, and she believes it is in the children's best interest to be reunified with their father and that his rights not be terminated. She said that she had been assigned the case the month before, and Justin's home had not been evaluated by DHS since April 2021, but she would personally go to Justin's house after the hearing to perform a walk through. Melissa developed her opinion after speaking with the former DHS caseworkers on the case and the foster parents.

At the conclusion of the evidence, the court terminated Justin's parental rights. It found that the ad litem had proved the grounds in the petition by clear and convincing evidence. From the bench the court explained that

[s]ervices were ordered in the case and of significance then and throughout the case was the long-term relationship between Mr. Richie and Ms. Edwards, and that relationship was and has been described as toxic, unhealthy and even identified as a drug relationship. These two have a history of using drugs together, and the best interest of these children has to be the paramount concern of this Court.

My findings weigh heavily on Mr. Richie's credibility his judgement, and his insight, and by most accounts, the visits with his children go very well, and the evidence before the Court is that he has done the services. The concern of the Court, however, is that Mr. Richie did not give the same account of his sobriety or his relationship with Ms. Edwards in his psychological evaluation, his drug and alcohol assessment or in a therapeutic setting. All of the dates and the contacts are inconsistent in each of those various reportings.

I have no firm sense of when or if the relationship with Ms. Edwards ended, as even after indicating Mr. Richie realized the relationship was toxic and not good for him, there is some evidence via social media that he has -- well he identified her as "the one." His therapist, Mr. Merritt, was not certain if Mr. Richie and Ms. Edwards were in a relationship or not. He felt like Mr. Richie had made some acknowledgments about the unhealthiness of the relationship, but he couldn't with certainty say either what the level of the relationship was.

Ultimately, I have to consider the long term health safety and welfare of these children, and I, quite frankly, find that there are many ways that Mr. Richie could have shown the Court and/or the Department that has completely separated from a women he believed was the one, with whom he had on and off-again relationship with for nearly two years and who's rights have been terminated as against these children.

I find that Mr. Richie has made efforts to check the boxes,

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