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

• Decision Date: 06 February 2014
• Docket Number: No. CV–13–570.,CV–13–570.
• Citation: 431 S.W.3d 303,2014 Ark. 53
• Parties: Tonia INGLE, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.
• Court: Arkansas Supreme Court

2014 Ark. 53

431 S.W.3d 303

Tonia INGLE, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.

No. CV–13–570.

Supreme Court of Arkansas.

Feb. 6, 2014.

Deborah R. Sallings, Arkansas Public Defender Commission, for appellant.

Tabitha Baertels McNulty, DHS–Office of Policy, and Chrestman Group, PLLC, by: Keith Chrestman, for appellee.

COURTNEY HUDSON GOODSON, Justice.

Appellant Tonia Ingle brings this appeal from an order entered by the Washington County Circuit Court placing permanent custody of her son, C.N., with his biological father and closing the dependency-neglect case. For reversal, Ingle contends that the circuit court lacked the authority to vest permanent custody in the father and to close the dependency-neglect proceeding, sua sponte, and without notice at the six-month review hearing. She also argues that there is insufficient evidence to support the circuit court's decision not to return C.N. to her custody. We agree with the second point and reverse and remand for the entry of an order consistent with this opinion.

The record reflects that the Arkansas Department of Human Services (DHS) filed a petition in the Washington County Circuit Court on May 7, 2012, seeking emergency custody of C.N., who was born on September 7, 2009. According to the affidavit, the child had no caretaker following Ingle's arrest on charges of possession of drug paraphernalia that had been found in her home. At the time of her arrest, Ingle identified Jason Neal of Missouri as C.N.'s father, but she declined to disclose any further contact information because, according to the affidavit, Ingle stated that Neal had been abusive to her in the past, and as a result, she did not want C.N. to live with him. That same day, the circuit court entered an ex parte order placing the child in the emergency custody of DHS. In this order, the circuit court appointed an attorney ad litem for C.N.

On May 11, 2012, the circuit court entered a probable-cause order finding that returning C.N. to Ingle's custody was contrary to the child's best interest. The circuit court placed custody of C.N. with Neal on the condition that the child not be left unsupervised with Neal's wife, who had a suspended driver's license and two active warrants for her arrest. The court also found that Ingle had a clean drug test that date, and it ordered that she be allowed weekly, supervised visitation once she passed two more drug tests. The circuit court ordered DHS to conduct a home study on Ingle's parents. The order contained no provision for a study to be completed of Neal's home in Missouri.

The circuit court held the adjudication hearing on June 8, 2012. In the adjudication and disposition order entered following the hearing, the circuit court determined that C.N. was dependent-neglected based on a finding that the child had been left without a legal caretaker upon Ingle's arrest for possession of drug paraphernalia after a drug pipe and a drug straw were found in the home where C.N. was present, “which placed the child in a dangerous situation.” The court maintained custody of the child with Neal and continued weekly visitation with Ingle under the supervision of her parents. The circuit court also set the goal of the case as reunification with Ingle or Neal. The court directed Ingle to undergo a psychological evaluation, to participate in individual counseling, to submit to random drug testing on a weekly basis, to maintain stable housing and employment, and to complete parenting classes. The circuit court also ordered Ingle to pay Neal child support in the amount of $25 per week. In conjunction with this requirement, the court abated Neal's current child-support obligation for C.N. and ordered him to pay his arrearage in child support. Finally, the adjudication order contained a provision advising Ingle that the “clock is ticking.” This provision informed Ingle that the court would hold a permanency-planning hearing in one year and warned that the court at that time could place permanent custody in someone else or terminate her parental rights if she had not corrected the conditions that caused her child's removal or if she had not made substantial progress toward reunification. The record also reveals that Ingle passed a drug test on the date of the hearing.

The circuit court held the six-month review hearing on November 14, 2012. Tameika Rector, a family-service worker,¹ testified that Ingle had been cooperative with DHS during the pendency of the case. Rector reported that Ingle had completed parenting classes, that she had participated in counseling and had been released, and that all of Ingle's drug screens had been negative.² She said that Ingle had completed a substance-abuse assessment, and the evaluation report, which was admitted into evidence, stated that Ingle did not have a substance-abuse disorder. To Rector's knowledge, Ingle had visited C.N. on a weekly basis. Rector also testified that Ingle's home was appropriate and that she had maintained stable employment. In addition, Rector verified that the prosecutor had dismissed Ingle's drug-paraphernalia charges. Rector said that she could not locate Ingle's psychological evaluation, but she stated that a referral had been made. Rector recommended that C.N. be returned to Ingle's custody.

In her testimony, Ingle stated that it was her desire to have C.N. return to her home. She testified that the charges against her had been dismissed based on the affidavit of Christopher Robin Cozine, who averred that the paraphernalia discovered in Ingle's home belonged to him and that Ingle did not know of its presence. Ingle introduced into evidence an order nolle prossing the charges. She testified that she did not recall being given a copy of DHS's referral for a psychological evaluation. Ingle explained that there might have been a miscommunication in that her caseworker had recently had a baby.³ Ingle further testified that she and her fiancé, Tommy Bausinger,⁴ had recently purchased a home together and that her seventeen-year-old daughter lived with her on the weekends. She said that her daughter stayed during the week with a woman named Patti, whom she had met at God's Pantry, so that her daughter could attend school in another school district. However, she could not recall Patti's last name.

Neal testified that C.N. was doing great and had adjusted well in his care. He was opposed to C.N. returning to Ingle's custody because he was “scared about her lifestyle” in that Ingle had been “in and out of jail.” Neal testified that he had taken Ingle to court over custody of C.N. two years ago and that he did not obtain custody at that time. Neal stated that his wife and her children no longer lived with him and C.N. because his wife had a gambling problem, and he testified that they would all live together in a new home once his wife resolved her problems. Neal admitted that he was behind in his child-support payments. He added that Ingle's parents had legal custody of Ingle's daughter.

Ingle testified in rebuttal. She said that it was not true that she had been in and out of jail as Neal had claimed. Ingle also testified that she had obtained a protective order against Neal and that Neal had not obtained custody of C.N. “because of the five years of extreme abuse.” Ingle attempted to introduce into evidence photographs that she said portrayed the injuries Neal had inflicted on her. Although there was no objection, the circuit court refused to admit them because “[t]hat was litigated.”

Following the presentation of testimony, the parties presented closing arguments. The ad litem for C.N. agreed with DHS's recommendation that C.N. be returned to Ingle's custody. After recounting the testimony, the circuit court announced from the bench that C.N. was no longer dependent-neglected and that it was ceasing reunification services, granting Neal permanent custody, and closing the case. In the review order and order of closure, the circuit court incorporated its oral ruling from the bench and made findings that Neal had complied with the court's orders and the case plan by maintaining stable housing and employment, that C.N. was doing well in Neal's custody, and that the child no longer needed services from DHS because Neal was meeting the child's needs. The circuit court further found that Ingle had complied with

some of the court orders and the case plan. Specifically, she has passed weekly drug screens, except she was positive for opiates Nov. 13, 2012 (she has a prescription). She has completed parenting [classes], maintained stable housing, completed hair follicle [testing] that was negative, completed counseling, resolved her criminal charges, which were dropped, [and] completed [a] drug/alcohol assessment. She has not had her psych eval ⁵ and has not paid child support-however,her obligation is going towards the $2813.00 [arrearage] owed by dad. She is not credible in her testimony today.

The circuit court set Ingle's visitation schedule and continued the requirement that her parents provide supervision. The court also ordered Ingle to pay $25 per week in child support once Neal satisfied his arrearage.

Ingle appealed, and the court of appeals affirmed the circuit court's decision. Ingle v. Ark. Dep't of Human Servs., 2013 Ark. App. 418, 2013 WL 3089035. This court granted Ingle's petition for review. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Walls v. Humphries, 2013 Ark. 286, 428 S.W.3d 517.

Ingle first argues on appeal that the circuit court's disposition of halting reunification services, placing C.N. in Neal's permanent custody, and closing the case at the six-month review hearing is not authorized under the juvenile code. DHS and C.N.'s ad litem have filed a joint brief, and they concur with Ingle's overall contention that the circuit court failed to adhere to the requirements of the applicable statutes...