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

• Citation: 2016 Ark. App. 446,503 S.W.3d 112
• Decision Date: 28 September 2016
• Docket Number: No. CV-15-603,CV-15-603
• Parties: Markita BELL, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
• Court: Arkansas Court of Appeals

2016 Ark. App. 446

503 S.W.3d 112

Markita BELL, Appellant

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

No. CV-15-603

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered September 28, 2016

Leah Lanford, Ark. Pub. Defender Comm'n, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

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

CLIFF HOOFMAN, Judge

Appellant Markita Bell appeals the May 27, 2015 order of the Sebastian County Circuit Court that terminated her parental rights to her daughter LB, born in September 2013. Appellant does not contest the multiple statutory grounds that were found to support the termination of her parental rights. On appeal, she presents two points, arguing that (1) the trial court's finding that termination of parental rights was in LB's best interest is clearly erroneous; and (2) the trial court's decision to deny appellant's motion for a continuance constituted an abuse of discretion. We affirm.

First, we examine the chronology of events and the evidence presented to the trial court. On October 7, 2013, the Department of Human Services ("DHS") filed a petition for emergency custody of LB. DHS had received a referral from the hospital where LB was born. LB's date of birth is September 26, 2013. Appellant had not had prenatal care, and she tested positive for THC at the time of giving birth. LB was a premature baby and had difficulty feeding. Despite instruction and assistance, appellant had not shown the ability to feed her baby independently, nor had she shown appropriate attentiveness to the baby's needs in order to take LB home. DHS noted in its affidavit that appellant herself had been in foster care for substantial periods of time during her minority and that appellant had other interactions with DHS regarding her older daughter AB. An ex parte order for emergency custody was granted.

A probable-cause hearing was conducted on October 8, 2013, wherein probable cause was found to keep LB in DHS custody.¹ Appellant was permitted to have two-hour supervised visits, three times per week, contingent on passing a drug screen. She was appointed an attorney.

Following an adjudication hearing in December 2013, LB was found to be dependent-neglected with appellant stipulating that she had put LB at significant risk of harm resulting from her inadequate supervision and drug use. Both her lack of prenatal care and her postnatal apathy in caring for LB were found to support a finding of dependency-neglect. A case plan was developed, and appellant was ordered to comply with DHS directives. Appellant was ordered to maintain stable and appropriate housing, income, and transportation; complete parenting classes; complete a psychological evaluation and all recommended treatment; complete a drug-and-alcohol assessment and all recommended treatment; visit LB regularly; and cooperate with intensive family services.

The case was reviewed in February 2014. Appellant had tested positive for THC and opiates in January 2014 and for opiates in February 2014, she had not completed parenting classes, and she had refused DHS access to parts of her home. Appellant had complied with the case plan in other ways, including obtaining appropriate housing, completing a drug-and-alcohol assessment, completing a psychological evaluation, and visiting regularly. DHS was determined to have made reasonable efforts to provide services to achieve the goal of reunification with LB, and reunification remained the goal.

In August 2014, a permanency-planning hearing was conducted. The concurrent goals for LB were to reunify with her mother and to terminate parental rights and effect adoption. Appellant was deemed partially compliant. Appellant had not participated in family counseling as recommended, had not completed parenting classes, and had not visited LB regularly.

A fifteen-month permanency-planning hearing was conducted in November 2014. At this point, it was apparent that appellant's efforts toward reunifying with LB had waned. The goals remained the same, with the trial court remarking that appellant had moved five times during the pendency of this case and was currently living in a hotel, had failed to maintain contact with DHS, and had last visited LB on September 5, 2014. DHS was deemed to have provided reasonable efforts toward achieving reunification.

On January 29, 2015, DHS filed its petition to terminate appellant's parental rights to LB. DHS alleged several statutory grounds, acknowledging that LB had been outside of her mother's custody for well over a year. DHS's statutory grounds included (1) failure to remedy the causes of removal, despite meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal; (2) willful failure to maintain meaningful contact with LB; (3) abandonment of LB; (4) subjection of LB to neglect or abuse that could endanger the life of the child; (5) manifestation of incapacity or indifference to remedying subsequent issues or factors that have arisen since the initial petition's filing; (6) subjection of LB to aggravated circumstances (namely, abandonment); and (7) subjection of LB to aggravated circumstances (namely, that there is little likelihood that services will result in reunification). Recitations of extensive specific facts followed each alleged statutory ground. Emphasis was placed on appellant initially showing a lack of ability or interest in caring for her baby; her repeated moves in residence; her having completely stopped visiting with LB after September 5, 2014, essentially abandoning LB; and her failure to achieve reunification after eighteen months of services being provided to her. The termination hearing was initially set to be heard on February 17, 2015, but it was continued to March 3, 2015.

On March 2, 2015, private attorney Frank W. Booth entered his appearance on behalf of appellant and asked that appellant's appointed attorney be relieved. On March 3, 2015, attorney Booth filed a motion for a continuance, asserting that he was hired on February 27, 2015, following appellant's having been advised by her appointed attorney that she should give up her parental rights. Booth requested a continuance of at least sixty days in order to adequately prepare. The trial court granted a substantial continuance, setting the termination hearing for April 17, 2015.

On April 3, 2015, appellant filed a "Motion to Dismiss and Alternative Response to Petition for Termination of Parental Rights." The motion asserted that the dependency-neglect statutes and termination statutes were in violation of the United States and Arkansas Constitutions, that the petition to terminate lacked clear, concise factual allegations, and that the termination petition should not be granted because there was insufficient evidence to support it.

On April 9, 2015, appellant filed another motion for a continuance in which she contended that discovery had been propounded to DHS and responses filed, but that a motion to compel might be necessary, which affected her ability to be prepared for an April 17, 2015 termination hearing regarding LB and an adjudication hearing regarding AB, to be heard on the same date. The motion also asserted that appellant suffered from bipolar disorder ; that DHS had not made reasonable accommodations for her under the Americans with Disabilities Act; and that DHS had failed to attempt placement of the children with relatives. The motion asked that a continuance be granted for at least sixty days following DHS's full compliance with appellant's discovery requests and that both LB and AB be placed with relatives and appropriate services be provided to appellant in the interim.

On April 14, 2015, DHS filed an amended petition to terminate parental rights regarding LB. The petition's allegations remained the same but the paragraphs were more clearly numbered and separated as to particular facts under each alleged ground.

On April 15, 2015, the children's attorney ad litem filed a response in opposition to any continuance, asserting that LB had been in foster care since she was discharged from the hospital after being born, that LB needed permanency, that appellant's recent claim of having bipolar disorder was without any evidence to support it nor were any accommodations requested due to such an alleged disorder, and that appellant had not visited LB for seven months. On April 16, 2015, appellant filed a reply to the attorney ad litem's response, restating her general complaints about her prior attorney, DHS, and the attorney ad litem in failing to work harder to reunify appellant with LB and preserve her constitutional rights to parent. Also on April 16, 2015, appellant filed a motion to dismiss the petitions and an amended motion for a continuance, asking that the matter be continued for no less than ninety days in order to have DHS comply with its duty to provide meaningful services and asking that LB and AB be placed with relatives during this continuance. The amended motion added that appellant should be given adequate time to prepare to respond to DHS's amended petition to terminate and to the amended petition for custody of AB.

A hearing was conducted on April 17, 2015. The trial court denied appellant's motions to dismiss the termination proceeding and then entertained appellant's recent request for a continuance. The trial court clarified that the only motions before the court at present would relate to LB, not AB.

Appellant's attorney acknowledged that the initial motion for a continuance was granted. As to the most recent request for a continuance, appellant's attorney stated that it was based on the lack of a reasonable period of time to review the amended petition to terminate. DHS responded that it merely cleaned up some minor grammatical issues and clearly separated each factual allegation to accommodate appellant's complaint about the petition itself; there was...