McKinney v. Ark. Dep't of Human Servs. & Minor Children
| Decision Date | 20 September 2017 |
| Docket Number | No. CV-17-328.,CV-17-328. |
| Citation | 527 S.W.3d 778 |
| Parties | Max MCKINNEY, Sr., Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees |
| Court | Arkansas Court of Appeals |
Dusti Standridge, for appellant.
Mary Goff, Office of Chief Counsel, for appellee Arkansas Department of Human Services.
Appellant appeals from the circuit court's termination of his parental rights to B.M., born 2/18/02; and A.M., born 10/5/12, in its January 25, 2017 order.1
Because the circuit court's findings supporting termination are not clearly erroneous, we affirm.
An emergency hold was taken on B.M. and A.M. on November 10, 2015, by order of the circuit court, due to allegations involving inadequate supervision due to drug use by the children's mother, Natasha Furnish, and appellant.2 Appellant tested positive for methamphetamine.
Appellee Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on November 15, 2015. The circuit court entered an ex parte order for emergency custody on the same date. A probable-cause order was entered on November 16, 2015, in which the circuit court found that there was probable cause that emergency conditions existed which necessitated removal of the children from the "custody of their mother" and continued to exist, thereby necessitating that the children remain in the custody of DHS. It found appellant to be the legal and biological father of B.M. and A.M. Appellant was ordered to comply with a list of standard orders.
The children were adjudicated dependent-neglected on account of "[p]arental unfitness due to drug use of the mother" in the circuit court's adjudication order entered on December 11, 2015. However, the circuit court found that appellant "did contribute to the dependency-neglect of the herein juvenile, [sic] specifically, [he] tested positive for Methamphetamine[,]" that appellant was not a fit parent for purposes of custody, and that the children could not be safely placed with appellant. It explicitly stated that appellant must follow the case plan and court orders. The goal of the case was reunification with a concurrent plan of relative placement, permanency, and adoption.
A review order was entered on May 6, 2016, in which the circuit court stated that appellant had participated in the case by visiting the children on a regular basis, submitting to random drug screens, submitting to a drug-and-alcohol assessment, and by "very partial" [sic] cooperating with DHS and complying with the case and all court orders. It also stated that appellant had not participated in and completed parenting classes; remained drug free, testing positive most recently for THC on March 23, 2016; obtained and maintained clean, safe, and stable housing, with utilities turned on; obtained and maintained stable employment; or prepared and submitted a budget indicating sufficient income. Finally, it stated that appellant had started "the 12-out-patient drug sessions, completing 4 so far" while noting that appellant "needs to consider whether outpatient is sufficient or whether [he] needs more treatment."
A review hearing was held on July 27, 2016; appellant did not appear. A review order was entered on July 28, 2016, in which the circuit court stated that appellant had only participated in the case plan by viewing "The Clock is Ticking" video and submitting to a drug-and-alcohol assessment. It found that appellant had not participated in the case with regard to any of its other orders, specifically noting that appellant stated he had taken methamphetamine on July 8, 2016; appellant had been incarcerated from May to July 2016, with an arrest warrant for him in Cleburne County; and appellant had "[n]o contact since July 8, 2016." In each review order, the circuit court found that DHS had made reasonable efforts to provide family services and the case plan remained the same.
DHS filed its petition for termination of appellant's parental rights on September 9, 2016. It alleged that termination of appellant's parental rights was in the children's best interest, taking into consideration the likelihood that the they would be adopted if the termination petition was granted and that there was the potential harm to their health and safety caused by returning them to the custody of the appellant.3 DHS alleged the following grounds against appellant pursuant to Arkansas Code Annotated section 9–27–341 :
A hearing on DHS's termination petition was held on January 5 and 12, 2017. Appellant was initially in court, according to his attorney, but he left and did not return. At the beginning of the hearing, appellant's attorney argued that a permanency-planning hearing should be held before a termination-of-parental-rights (TPR) hearing on DHS's petition. Given that B.M. had been placed with a married, paternal aunt in North Dakota, appellant moved that the home study of the aunt be considered for placement of A.M.6
Noting that Arkansas Code Annotated section 9–27–341(b)(1)(B) states that a permanency-planning hearing is not a prerequisite to filing a TPR petition or to a circuit court hearing the same, the circuit court found that it "[did] not believe that there had been an error or a significant omission in not having a Permanency Planning Hearing because the Department was entitled to file a Petition for Termination of Parental Rights according to that Statute without a Permanency Planning Hearing having been held." Finding it to be "premature for the Court to consider a hearing about the placement of the children when the Court has not decided as to whether Mr. McKinney does or does not have parental rights to these children intact[,]" the circuit court found it appropriate to proceed with the TPR hearing, which followed immediately thereafter.
Tina Green, foster-care worker and the latest caseworker assigned to the case,7 testified that appellant missed his initial drug-and-alcohol assessment, though he completed the rescheduled assessment. He was recommended for outpatient treatment but failed to complete treatment; he was discharged for noncompliance after four sessions. He eventually completed another drug-and-alcohol assessment on December 30, 2016, which recommended a 21–day inpatient program. He was currently in an inpatient rehab as of January 3, 2017, which he was scheduled to complete on or around January 24, 2017; he had left another rehab—Project New Start—voluntarily on November 21, 2016.
Green testified that there were periods where appellant was not in contact with DHS, leaving it with no ability to drug screen him. The longest period was approximately seven months, during which DHS had only two drug screens for appellant, the latest being on January 3, 2017, when he tested positive for "methamphetamine, MPA, and oxy." Green did not believe appellant's drug issue had been "rectified satisfactorily." She opined that "at least six months of some sort of sobriety" would have been helpful; "a minimum of three" months.
Green testified that appellant did not have stable housing, as he was living with relatives in Mississippi, and she had not been able to check the home for appropriateness. Appellant never asked for services to be provided in Mississippi, stating that he was willing to travel to Jonesboro to complete the services if DHS set them up; he did not tell her that he was completing parenting classes or any other services in Mississippi. Green had provided appellant with the information for parenting classes, but he had not provided proof of completion. Appellant had provided no proof of employment or income, and though he had been complying with visitation, it had not been consistent due to his different rehab entries and periods of incarceration.
Appellant had told Green that he and Furnish were still married and living together in December 2016; appellant had not told her that their relationship status had changed. Appellant brought Furnish to his January 3, 2017 visit with the children though she remained in the car; Green saw that as evidence that the two "remained together."8 Green had concerns with appellant's continued relationship with Furnish, whom she described as unstable as well because "she had admitted out of her own mouth" that she still had current drug-use issues, and the circuit court had terminated her parental rights to the children, a decision after which appellant married her.
Green believed termination to be in the children's best interest based upon appellant's "instability, the current drug use"; his lack of proof of income; his noncompliance with court orders; and his lack of adequate housing. She believed the above-referenced factors posed a danger to the children and believed the children were adoptable—even if there were currently no families interested—though she testified that there were currently families interested in adopting the children.
Gretchen Lackey, the caseworker immediately preceding Green from March 2016, testified by phone.9 She stated that appell...
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