Gyalog v. Ark. Dep't of Human Servs.
| Decision Date | 06 May 2015 |
| Docket Number | No. CV–14–994,CV–14–994 |
| Citation | 2015 Ark. App. 302,461 S.W.3d 734 |
| Parties | Khosrow Gyalog, Appellant v. Arkansas Department of Human Services and Minor Children, Appellees |
| Court | Arkansas Court of Appeals |
Leah Lanford, Arkansas Public Defender Commission, Dependency–Neglect Appellate Division, for appellant.
Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor children.
Appellant Khosrow Gyalog appeals the permanency-planning order, changing the goal of his children's dependency-neglect case from reunification to adoption, and the subsequent order terminating his parental rights. He argues that both orders were against the children's best interest. We affirm.
On June 6, 2013, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect as to K.G.1, then eleven years old, and K.G.2, then seven years old. The petitions were based upon their mother's drug use and the physical environment in which they were living. Gyalog, their father, was incarcerated at the time. The court entered the emergency order the same day, and on June 10, 2013, a probable-cause order was entered. On August 2, 2013, the court adjudicated the children dependent-neglected due to neglect and parental unfitness. Gyalog attended that hearing via telephone and was permitted to continue writing letters to the children. The court ordered DHS to facilitate weekly visits between Gyalog and the children as soon as Gyalog was released and ordered that a home study be conducted on Jeanette Rayburn, Gyalog's sister who lived in California. At a December 18, 2013 review hearing, the court ordered in-person visitation between Gyalog and the children at his work-release facility. The court noted that he had maintained contact with DHS and with the children.
Gyalog's counsel filed a motion to continue the permanency-planning hearing, scheduled for April 30, 2014, on the grounds that the home study had not been completed on Rayburn. The court took testimony from the children's therapist, who was present in the courtroom at the time, then continued the hearing until May 30, 2014. When the permanency-planning hearing resumed in May, the home-study results had not yet been returned, but the court proceeded with the hearing.
Lori Johnson, the former DHS caseworker assigned to this case, testified about the delays in conducting the home study, explaining that she had not been able to contact Rayburn for quite some time, despite leaving messages for her. She testified that Rayburn was equivocal about the placement. Johnson also testified that, even if the home-study results permitted placement with Rayburn, she would recommend against such placement because the children were now closely bonded with their foster parents, who wanted to adopt them.
The new caseworker, Margot Gaston, testified that Gyalog exhibited bizarre and overly affectionate behavior during visitation with the children, forcing them to kiss him and each other on the lips and holding them like infants. Although she had taught the children to use “safe words” should they feel uncomfortable, she testified that they never used the words. However, she was sufficiently concerned about Gyalog's behavior to mention it to the children's therapist. Both the CASA worker and the warden at Gyalog's work-release center testified that Gyalog's behavior was normal for a father who had not seen his children in a long time and was happy to see them. They testified that the children did not seem uncomfortable.
As to the home study, Gaston reiterated Johnson's position that, even if the home study came back in favor of placement with Rayburn, DHS would recommend termination and adoption. She explained that the children were bonded with their foster parents, while they did not have a bond with Rayburn.
Rayburn testified that DHS had contacted her as early as October or November 2013 regarding the home study, that she had gotten their phone messages, that she believed DHS was cooperating in facilitating the home study, and that she had gotten the home-study paperwork a few weeks after first speaking to a caseworker about it. She was hesitant about removing the children from their current foster placement if it was working out well and noted that she was nervous about providing for the children.
The children's therapist testified in favor of adoption, stating that the children needed permanency.
Gyalog testified, expressing his distrust in DHS and his caseworkers. He claimed that the caseworkers were lying and had purposely tried to deny him court-ordered visitation. Gyalog explained that he was still incarcerated but was housed at a work-release facility. He testified that he could not take the children at that point.
The court found that the children could not be returned to either parent, could not be placed with Rayburn or other relatives,1 and that there was no evidence that DHS had not made efforts to complete Rayburn's home study. The court found that neither parent had made sustainable or measurable progress in working the case plan despite the fact that DHS had made reasonable efforts to provide reunification services. The court changed the goal of the case from reunification to termination and adoption.
At the termination hearing, held on August 27, 2014, the children's therapist testified that further visitation with Gyalog would be counterproductive for the children, that the children were ready to move forward with adoption, that they were making good progress in their current foster placement, that they wanted to be adopted, and that they displayed signs of anxiety around the time of the visits with their father. Caseworker Gaston testified again about Gyalog's bizarre behavior during visitation, which included his demands of physical affection and treating the children like infants.
The children's foster mother testified that they were doing very well in school, had made academic improvements since coming into care, and got along well with the other children in the foster home. She testified that the children displayed anxiety related to visits with their father. She stated that she and her husband would be interested in adopting the children.
The warden and the CASA worker both testified again as to their conflicting impressions of Gyalog's behavior during visitation. The CASA worker recommended termination.
Gyalog testified and repeated his previous allegations that DHS workers had lied about why he was denied visitation, had purposely sabotaged his attempt to have the children placed with his sister in California, and had misrepresented his behavior during visitation. He testified that he had a full-time job, which he would retain upon his release. He testified that he attended AA meetings at the work-release facility and was divorced from the children's mother.
The court announced from the bench that it was terminating parental rights as to both parents.2 The court entered a termination order on September 8, 2014. The court found that the children had been adjudicated dependent-neglected, had continued out of the custody of their parents for over twelve consecutive months, and despite meaningful efforts by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions had not been remedied. The court further found that Gyalog did not comply with the court orders, case plan, and services offered by DHS in that he remained incarcerated throughout the case and was sentenced to twenty years (twelve of those suspended) in September 2011. He could not protect the children or provide stable housing for them due to incarceration. He had complied with many requirements, such as counseling, attending AA/NA meetings, and obtaining employment, but he did not have stable housing for the children. The court found that continued contact with Gyalog was not recommended because the children needed permanency and he could not provide for them...
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