Hernandez v. Ark. Dep't of Human Servs. & Minor Children

• Decision Date: 16 October 2019
• Docket Number: No. CV-19-368,CV-19-368
• Citation: 2019 Ark. App. 449,588 S.W.3d 102
• Parties: Alfredo HERNANDEZ and Jennifer Hernandez, Appellants v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees
• Court: Arkansas Court of Appeals

2019 Ark. App. 449

588 S.W.3d 102

Alfredo HERNANDEZ and Jennifer Hernandez, Appellants

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

No. CV-19-368

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: October 16, 2019

Janet Lawrence, for appellant Alfredo Hernandez.

Dusti Standridge, for appellant Jennifer Hernandez.

Callie Corbyn, Office of Chief Counsel, for appellee.

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

BART F. VIRDEN, Judge

The Greene County Circuit Court terminated the parental rights of appellants Jennifer Hernandez and Alfredo Hernandez to their two children, A.H. and C.H. The parents have filed separate briefs on appeal. Jennifer challenges each ground for termination and argues that termination was not in the children's best interest. She also argues that the Arkansas Department of Human Services (DHS) failed to make reasonable efforts to reunify her family. Alfredo argues that he was deprived of his due-process rights because he did not have the benefit of counsel until the goal was changed to termination of parental rights. He also contends that DHS did not provide reasonable and meaningful services to him and that there was insufficient evidence that termination was in the children's best interest. We affirm.

I. Procedural History

An affidavit attached to a petition for emergency custody and dependency-neglect filed by DHS indicates that a seventy-two-hour hold was taken on A.H. and C.H. on December 16, 2016, because Jennifer had appeared in juvenile court with her younger son and tested positive for buprenorphine, methamphetamine, amphetamines, benzodiazepines (prescription), and THC.¹ Jennifer went to DHS, contesting the drug-screen results from juvenile court, and a drug screen performed by a DHS supervisor was positive for illicit drugs. The affidavit also reveals that DHS first had contact with the family on November 3, 2009 (true referral for inadequate supervision); September 3, 2010 (true referral for threat of harm); November 25, 2009, through December 8, 2010 (successfully completed protective-services case); August 10, 2016 ("inactive referral—unable to locate—for sexual contact"); and October 6, 2016 (true referral for educational neglect).

An ex parte order for emergency custody was entered on December 19, 2016. In an order entered February 7, 2017, the trial court found probable cause that the emergency conditions that necessitated the children's removal from the parent's custody continued to exist. Both parents were ordered to comply with standard welfare orders, including that they cooperate with DHS, comply with the case plan, and obey all court orders; view "The Clock is Ticking" video; remain drug free and submit to random drug screens with the understanding that any refusal to comply or failure to produce a specimen within one hour would be considered a positive result; provide proof of any prescribed medications at the time of the random drug screens; participate in and complete parenting classes; obtain and maintain clean, safe, and stable housing with utilities; allow DHS access to their homes; obtain and maintain stable employment or provide sufficient income to support the family; provide DHS with a budget indicating sufficient income or resources to meet the needs of the family; and maintain contact with the caseworker and immediately notify DHS of any change in address, contact information, marital status, or employment status. In addition, Jennifer was ordered to submit to a drug-and-alcohol assessment, to follow the recommendations of the assessment, and to provide a copy of the assessment results to DHS.

On February 10, 2017, A.H. and C.H. were adjudicated dependent-neglected by stipulation of the parents. Specifically, the children were found to have been inadequately supervised due to Jennifer's drug use. The trial court set the goal of the case as reunification and approved DHS's case plan. The parents were again ordered to comply with the standard welfare orders, and Jennifer was required to submit to a drug-and-alcohol assessment. The trial court further ordered that Alfredo was to have no contact with the children for one month. DHS was ordered to press the Arkansas State Police Crimes Against Children Division and the Jonesboro Police Department to investigate the sexual-abuse allegations against Alfredo involving A.H. Moreover, the trial court noted that it had inquired about Alfredo's indigency and determined that an attorney could not be appointed for him.

A hearing was held on March 29, 2017, to review the no-contact order that had been entered against Alfredo. In a limited-review order entered April 27, 2017, the trial court noted that Alfredo had not appeared at the hearing to contest the no-contact order; therefore, the trial court left the order in place.

A review order was entered on June 22, 2017, in which the trial court continued the goal of reunification and found that DHS had made reasonable efforts to provide family services. A permanency-planning order was entered on January 4, 2018, in which the trial court continued the goal of reunification. The trial court gave the parents three more months to work toward the goal of reunification, not because the parents had made significant measurable progress, but because the trial court was not satisfied with DHS's provision of services to the parents. The trial court also found that Jennifer had not provided proof of her attendance at NA/AA meetings and had not completed drug-treatment classes recommended by her drug-and-alcohol assessment. The trial court also expressed concern that Jennifer had not allowed DHS access to her home. Further, the trial court found that Alfredo had not complied with the case plan and court orders.

A fifteen-month review order was entered May 11, 2018, in which the trial court changed the goal of the case to adoption. The trial court concluded that both parents had not complied with the case plan and court orders. Specifically, the trial court found that Jennifer had not presented proof of an appropriate home; that she had not provided proof of her attendance at NA/AA meetings; that there was no evidence that she had remedied the cause for the children's removal from her custody; and that she had attended only twenty out of thirty-six recommended drug-treatment classes. As for Alfredo, the trial court noted that, because he had not appeared at the hearing on the no-contact order, he had been given no visitation with his children throughout the case. The trial court appointed counsel to represent each parent.

On August 6, 2018, DHS filed a petition to terminate Jennifer's and Alfredo's parental rights to A.H. and C.H. A termination hearing was held over the course of several days: November 26 and December 6, 2018; and January 11, 2019.

II. Termination Hearing

In November, DHS caseworker Ginny Sims, who had been assigned to the case in December 2017, testified that Jennifer had not remedied her drug issues in that she had tested positive for methamphetamine in November 2018. Sims said that there was very little urine to sample, it had "no temperature," and there was something floating in it; she later conceded that, when a sample does not register a temperature, the test is not valid. Sims said that on April 16, 2018, Jennifer refused to submit to a drug screen twice on the same day and that her efforts to perform drug screens had been hampered because Jennifer could not be located at the residence she shared with her father. She testified that she had no idea whether Jennifer's home was appropriate for the children because her father's residence contained a locked bedroom. Sims said that the home was otherwise appropriate but that she had not seen any personal items belonging to a female living there. Sims said that Jennifer had not provided proof of her attendance at drug-treatment classes, which had been recommended from her drug-and-alcohol assessment. Sims said that Jennifer's visits with the children were appropriate for the most part and that she visited more often than not. She said that Jennifer had been diagnosed with bipolar disorder, anxiety, and PTSD but that Jennifer was not attending counseling sessions.

Sims testified that Alfredo had no visits with his children because of the no-contact order. She said that he had completed parenting classes and had watched the video "The Clock Is Ticking"; however, he had not provided proof of stable income, and the home he lived in, where he was renting a room from someone, would not be appropriate for his children. Sims further testified that the children's foster family wished to adopt them and that they are otherwise adoptable in that they do not have major behavioral issues, learning or physical disabilities, or mental or health issues. The remainder of the hearing was continued.

In December, Sims was recalled to the stand. She admitted that she had not visited Jennifer's home every month per DHS policy but explained that she was not always allowed access to Jennifer's home because she conducted random visits. She was cross-examined extensively by Jennifer's counsel about her attempts to visit the home and her communication with Jennifer.

Sims was then cross-examined by Alfredo's counsel about her lack of documentation regarding the case plan; specifically, Alfredo's signature was missing from a copy of the October 2018 case plan. Also, Sims said that she did not think she had provided a copy of that case plan to either Alfredo or his attorney. She later said that she usually emails all of them but that she would have to check her email. Sims stated that on March 12, 2018, she had visited Alfredo's home—a rented room in Jonesboro—and that Alfredo had not given her any information that he had moved from there. She said that the home was obviously not appropriate for two children but that, because of the no-contact order, she had not discussed with him...