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

• Decision Date: 14 March 2012
• Docket Number: No. CA 11–1080.,CA 11–1080.
• Citation: 2012 Ark. App. 209,396 S.W.3d 272
• Parties: Mika CHENEY and Jason Cheney, Appellants v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees.
• Court: Arkansas Court of Appeals

2012 Ark. App. 209

396 S.W.3d 272

Mika CHENEY and Jason Cheney, Appellants

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

No. CA 11–1080.

Court of Appeals of Arkansas.

March 14, 2012.

Tabitha Baertels McNulty and Deborah Ruth Sallings, Little Rock, Janet Renee' Lawrence, Conway, for appellant.

Keith L. Chrestman, Jonesboro, for appellee.

ROBIN F. WYNNE, Judge.

[Ark. App. 1]Mika and Jason Cheney both appeal from the Crittenden County Circuit Court's order terminating their parental rights to their children, S.C., J.C., and D.C. Mika's counsel has filed a motion to withdraw that is accompanied by a brief filed pursuant to Arkansas Supreme Court Rule 6–9 and Linker–Flores v. Arkansas Department of Human Services (I), 359 Ark. 131, 194 S.W.3d 739 (2004). Jason's counsel has filed a merit brief. We affirm the circuit court's termination order as to both appellants and grant the motion to withdraw filed by Mika's counsel.

The Arkansas Department of Human Services (DHS) filed a petition for emergency order regarding S.C., J.C., and D.C. on May 20, 2009. The affidavit from a family-service worker that accompanied the petition states that on May 18, 2009, Mika was arrested for possession of controlled substances, driving on a suspended license, and endangering the welfare of a minor. Mika admitted using methamphetamine a “couple of days” prior. The [Ark. App. 2]children appeared dirty, and their diapers were soiled. Jason was contacted and denied any knowledge of Mika's drug use or any drug use himself; a drug screen of Jason was negative. The affidavit further states that J.C. was born in 2006 with cocaine and marijuana in his system and that D.C. was born in 2007 with cocaine and amphetamines in her system. DHS opened a case on the family in 2008, and the case was still open at the time the affidavit was executed. On May 22, 2009, the circuit court entered an ex parte order in which it continued custody of the children with Mika and Jason; ordered Mika to complete a drug/alcohol assessment and submit to random drug screens; and ordered both parents to, among other things, make sure the children were properly supervised, obtain and maintain stable housing and employment, notify DHS of address or phone number changes, and follow a safety plan for the children developed by DHS.

On August 3, 2009, DHS filed an amended petition for emergency custody and dependency-neglect. The affidavit that accompanied the amended petition states that during a weekly home visit on July 27, 2009, both Mika and Jason tested positive for methamphetamine, resulting in DHS taking a seventy-two-hour hold on the children. The circuit court filed an order on August 3, 2009, placing the children in DHS custody.

The circuit court entered an adjudication order on October 13, 2009, in which it adjudicated the children dependent-neglected based upon a stipulation by the parents that the facts in the August 3, 2009 affidavit were true. The order states that the goal of the case was reunification. Both Mika and Jason were ordered to submit to random drug screens and remain drug free; maintain stable housing and employment or legal income; notify DHS of [Ark. App. 3]telephone number or address changes and allow DHS to perform home visits; and cooperate with the Department of Children and Family Services (DCFS) and comply with the case plan during the pendency of the case.

In a review order entered on December 29, 2009, the circuit court continued custody of the children with DHS and continued reunification as the goal of the case. The parents were again ordered to perform all of the tasks set out in the adjudication order and were additionally ordered to attend all visitation sessions with the children and to submit to psychological testing. In another review order entered on March 11, 2010, the court continued the children in DHS custody and continued reunification as the goal of the case. The earlier requirements for Mika and Jason continued, along with a requirement that they enter and complete drug treatment. The circuit court also found that neither Mika nor Jason had substantially complied with the court's previous orders or the case plan.

In a report to the circuit court dated June 18, 2010, the Court Appointed Special Advocate (CASA) volunteer assigned to the case stated that Mika and Jason missed almost three months' worth of visitations with the children. The volunteer also stated that Jason was arrested on April 23, 2010, and charged with manufacturing crystal methamphetamine, manufacturingmethamphetamine in the presence of a child, possession of drug paraphernalia, possession of a controlled substance with intent to sell, possession of a firearm by a convicted felon, and simultaneous possession of drugs and firearms.

A permanency-planning hearing was held on July 1, 2010. In the ensuing order, the circuit court continued the children in DHS custody and stated that the goal of the case was [Ark. App. 4]reunification with Mika. The circuit court also found that DHS made reasonable efforts to finalize a plan for reunification, that Mika had substantially complied with the previous orders and case plan, and that Jason had not complied with the previous orders or the case plan. After a fifteen-month review hearing on October 21, 2010, the circuit court entered an order in which it changed the primary goal of the case to termination of parental rights with a concurrent goal of adoption. The order from the hearing was entered on January 6, 2011. The court found that DHS made reasonable efforts toward reunification; however, despite those efforts, Mika had not maintained stable employment and Jason had not maintained stable housing, employment, or income.

DHS and the children's attorney ad litem filed a joint petition for termination of parental rights on March 2, 2011. Mika did not appear for the hearing on the petition. At the hearing, Andrea Sias, a family-services worker with DHS, testified that during the case, Mika had eight positive drug screens and Jason had ten positive drug screens. Ms. Sias testified that since his arrest, Jason had not been able to comply with the case plan and that he did not have stable housing or employment. According to Ms. Sias, Mika had last visited the children on October 21, 2010, and had missed eight visits since that time. Jason missed four months of visitation and had last visited the children on January 14, 2010; since that time he had not had any contact with the children, nor had he sent anything to DHS for the children. Jason paid child support in January, February, and March 2010. Ms. Sias's last contact with Mika prior to the termination hearing was on October 21, 2010. Ms. Sias recommended that parental rights be terminated due to the lack of a stable environment for [Ark. App. 5]the children. Ms. Sias admitted on cross-examination that Jason had not been offered any services since his incarceration; however, she also stated that DHS does not offer services to persons who, like Jason, are incarcerated in the state penitentiary. Margaret Miller, an adoption specialist with DHS, testified that she believed the children were adoptable.

Jason testified that he pled guilty to residential burglary in 2008. As a result of his plea, he was placed on probation for a period of sixty months. In April 2010, Jason violated his probation when he was arrested. Jason's probation was revoked, and he was incarcerated at the time of the hearing. ¹ Jason pled guilty to possession of a controlled substance with intent to manufacture in March 2011, and was placed on probation for ninety months, with a presumptive sentence of between 120 months' and 480 months' imprisonment if he violated his probation. Jason also testified that he was in a voluntary substance-abuse treatment program. He stated that his release date was January 3, 2012, that he would be paroled to his uncle's house, and that his former employer told him to contact them when he got released. Jason admitted on cross-examination that he was not guaranteed to be paroled in January 2012. Jason also stated that he had attempted to maintain contactwith the children, who were placed with his cousin at the time of the hearing. He asked the court to give him four more months to get out of prison and get a job.

On August 9, 2011, the trial court entered an order terminating Mika and Jason's parental rights. The circuit court found that Mika had not visited the children since October 21, 2010, save for a DHS Christmas party in December 2010, and that Jason had not visited [Ark. App. 6]the children since January 14, 2010. The circuit court determined that termination of parental rights was in the children's best interests because the children were adoptable, there would be a substantial risk of potential harm if the children were returned to the parents, Mika's whereabouts were unknown, Mika had no stable housing, and Jason was serving a 120–month sentence in the state penitentiary and could not provide stable housing for the children. The circuit court found that DHS proved that the children continued out of the home for a period of twelve months and, despite meaningful efforts by DHS to rehabilitate the home and correct the conditions that led to the removal, the conditions had not been remedied. The circuit court also found that DHS proved that, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrated that the return of the children to the family home was contrary to their health, safety, or welfare and that, despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate their circumstances, which prevented the return of the juveniles to the family home. Those subsequent factors included Mika's neglect and abandonment of the children by having no contact...