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

2022 Ark. App. 176

643 S.W.3d 850

Shannon TATE, Appellant

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

No. CV-21-541

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered April 20, 2022

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

Andrew Firth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor children.

LARRY D. VAUGHT, Judge

Shannon Tate appeals the Sebastian County Circuit Court's order terminating her parental rights to her six minor children. On appeal, she challenges only the court's finding that termination of her parental rights was in her children's best interest. We affirm.

On or about August 10, 2018, police found Shannon walking down the side of Interstate 40 with her five children, then ages eight, seven, five, four, and one, after having been denied a hotel room. Upon further investigation, police discovered that Shannon had active warrants, and they arrested her, leaving the children without a caretaker. The Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect, alleging that the children were at imminent risk of harm because Shannon was unable to provide basic necessities for them. An emergency hold was placed on the children, and the court entered an order granting DHS emergency custody.

The court held a probable-cause hearing and entered an order on August 13, finding that Shannon had waived probable cause and that the children would remain in foster care pending an adjudication hearing.

The adjudication hearing was held on September 17, and the court found the children dependent-neglected due to parental unfitness because Shannon had been arrested, leaving the children without a caretaker, and upon her release, she was without a residence to which she could return.

Shannon gave birth to another child while the case was pending, and on November 13, newborn J.L. was also removed from Shannon's custody. DHS filed a petition seeking to add J.L. to the case. Shannon was unable to provide a valid drug screen, she exhibited signs of drug use, J.L. exhibited signs of drug withdrawal, and an investigation of Shannon's home demonstrated that Shannon had no supplies for J.L. or a bed for herself. The court entered an emergency order allowing DHS to maintain custody of J.L., which was followed by a probable-cause order and an adjudication order adjudicating J.L. dependent-neglected as a result of Shannon's parental unfitness.

That order also served as a review order for the other children, and the court found that Shannon was not in compliance in that she had failed to participate in services except for visitation and admitted using drugs during the review period. The court ordered Shannon to comply with the court's orders and with the case plan and listed the multitude of services she was to be provided by DHS as well as expectations the court had of her. By separate order, the court also ordered her to pay child support of $30 a week for the eldest five children.

Although Jody Lewis is not a party to this appeal, we note that the court found him to be the legal father of K.L. and the putative father of A.L., L.L., B.L., and C.L. but noted that his rights had not yet attached to the newborn, J.L. He was not appropriate for placement because he was serving a four-year prison sentence.

On April 22, 2019, the court held a review hearing, finding that Shannon had a positive drug screen for amphetamines and methamphetamine three weeks prior and that she had not complied with the case plans or orders of the court. Specifically, the court found that she had not attended a drug-and-alcohol assessment, she continued to test positive for amphetamines, she missed multiple visits with the children, she continued to have unsatisfied legal obligations, she had not attended domestic-violence classes or parenting classes, and she did not have stable and appropriate housing or reliable transportation.

Three months later, however, after a permanency-planning hearing, the court maintained a goal of reunification. Shannon was making progress. The court then entered an order on December 17, finding that "the parents" were partially compliant, having worked their services—completing some of them—and they had benefited from those services. The court noted that they were "closer to being fit to receive the children than previously." A nearly identical order with identical findings was entered for the review period ending February 2020.

On May 11, 2020, the court held yet another review hearing and entered an order on June 9, finding that Shannon continued to be compliant with the court's orders and the case plan in that she had housing and employment but that she had experienced a relapse. The court ordered her to undergo a hair-follicle test and DHS to refer her to drug treatment. A permanency-planning hearing conducted two months later resulted in an order in which the court found that the goal of the case should remain reunification. The court found Shannon not in compliance because DHS was unable to verify her circumstances and because the hair-follicle test was positive for methamphetamine. The court ordered her to undergo a second hair-follicle test covering only the previous ninety days and ordered DHS to refer Shannon to a drug-and-alcohol assessment.

The review period ending December 2020 resulted in an order showing Shannon to be in compliance. The court noted that Shannon was employed, she was visiting the children regularly, her classes and counseling were in progress, and she had had clean drug screens.

However, three months later, at the March 2021 review hearing, the court changed the goal to adoption, making an alternate plan of reunification and ordering that Shannon continue to receive services until her rights were terminated, "if ever." The court found that she was partially compliant but noted that while she was working, her housing was unstable, and she had not completed outpatient drug treatment.

On June 10, DHS filed a petition to terminate Shannon's parental rights alleging three grounds and contending that termination was in the children's best interest because they were likely to find permanency through adoption and because they would be subject to potential harm if returned to Shannon's custody.

On July 12, 2021, the court held a termination hearing. At that hearing, the caseworker, Mayra Duenas, testified that Shannon had completed parenting classes in 2019, had undergone a drug-and-alcohol assessment and completed two inpatient drug-treatment programs with the most recent being in November prior to the termination hearing, had appropriate employment and income, had two two-hour visits a week that were never missed, and utilized the visits to bring and make food for the children. Mayra also noted that Shannon had had no positive drug screens for nearly a year, but she believed that Shannon was continuing to use drugs because she could not provide a sample every time and appeared "tired" at some visits. Mayra admitted that DHS had failed to follow the court's order to obtain a hair-follicle test and that the hair-follicle test could have cleared up Mayra's concerns.

Mayra also acknowledged that the most recent drug screen, two months prior to the hearing, was...