Pratt v. Ark. Dep't of Human Servs. & Minor Child

• Decision Date: 20 June 2012
• Docket Number: No. CA 12–172.,CA 12–172.
• Citation: 2012 Ark. App. 399,413 S.W.3d 261
• Court: Arkansas Court of Appeals
• Parties: Yolanda Lafay PRATT & Kirby Jackson, Appellants v. ARKANSAS DEPARTMENT OF HUMAN SERVICES & Minor Child, Appellees.

2012 Ark. App. 399

413 S.W.3d 261

Yolanda Lafay PRATT & Kirby Jackson, Appellants

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES & Minor Child, Appellees.

No. CA 12–172.

Court of Appeals of Arkansas.

June 20, 2012.

Leah Lanford, Attorney at Law, Arkansas Public Defender Commission, Little Rock, for Appellant Yolanda Pratt.

Janet Lawrence, Attorney at Law, Conway, for Appellant Kirby Jackson.

Melissa B. Richardson, Bristow & Richardson P.L.L.C., Jonesboro, and Tabitha McNulty, DHS Office Chief Counsel, Little Rock, for Appellee.

DAVID M. GLOVER, Judge.

Yolanda Pratt and Kirby Jackson appeal from the termination of their parental rights to their son C.J., who was born June 10, 2006. We affirm both terminations.

Background

This case began¹ in 2010 with DHS taking emergency custody of C.J. amid allegations and counter-allegations that C.J. was living among people who were smoking crack cocaine, in unsafe living conditions, with an abusive, alcoholic father (Kirby) who beat Yolanda with a belt, hit C.J. with his fist, and locked Yolanda in a closet.² Yolanda's mental capacity and how it affected her ability to care for C.J. were also at issue. At the probable-cause hearing, the trial court ordered DHS to retain custody of C.J. and to develop an appropriate case plan. A guardian ad litem was subsequently appointed for Yolanda. At the adjudication hearing on December 9, 2010, C.J. was determined to be dependent-neglected and Yolanda was found to be significantly low functioning, which raised questions about her ability to be a fit parent. The goal of the case was set as reunification.

At a March 8, 2011 review hearing, the trial court determined that little progress had been made. The court was particularly concerned that Yolanda's “full scale IQ is 55,” that she was very dependent, and that Dr. Paul Deyoub did not believe she would be able to be an appropriate parent by herself. In addition, hair-follicle test results for C.J. were positive for cocaine, and the foster parents testified that C.J. had substantial developmental delays and serious dental issues. The court found that DHS had made reasonable efforts to further the goal of reunification, including modified parenting classes to accommodate Yolanda's low-functioning skills, but that she had not benefitted from the services, and that the case was “still not going well.” Kirby's status as C.J.'s biological father was established, and an attorney was appointed to represent him.

Then, at the August 23, 2011 permanency-planning hearing, the trial court changed the case goal to adoption, concluding that it remained to be seen whether the parents were minimally qualified to care for C.J., who is a high-needs child.

Termination Hearing

The termination hearing was held on November 1 and 8, 2011. Twelve witnesses testified. Kirby testified at length. He stated that before C.J. was taken away, he worked with C.J. quite a bit and that C.J. was “going to the potty” more often than he was having accidents. He acknowledged that C.J. had serious dental problems that even affected his ability to eat. Kirby explained that he had been diagnosed with chronic post-traumatic stress disorder and depression, and he acknowledged substance-abuse treatment for marijuana about ten years ago, but denied having a cocaine habit. He said that he had no idea why the VA records stated that he had a daily cocaine habit from 1987 to 1997, and no idea why those records stated that he did not stop using marijuana until 2006 because he stopped using it in 1999; neither did he know why they said that he was an alcoholic, dependent on alcohol, because he was not. He stated that his discharge plan included focusing on his anger; being able to live better with his family; taking care of projects; and being more involved in the community.

Kirby acknowledged that he had talked with DHS representatives for the past year about his home condition. According to him, his plan to maintain stability with his PTSD was to talk to his brother, mother, and pastor, and to go to an outpatient program at the VA on a weekly basis, but he had not started that program yet. On a scale of one to ten, Kirby said that he ranked Yolanda at a seven concerning her level of functioning. He attributed the reason this case was opened in the first place to a “misunderstanding” between him and Yolanda. He described friction between them because Yolanda was doing everything her mother told her to do. Kirby explained that Yolanda sought an order of protection against him but that she lied in her affidavit concerning the protection order; that she also lied to DHS about abuse taking place in their house. He denied abusing Yolanda and offered his opinion that he did not dominate her. He described his anger-management training, what he had learned from it, and his concerns about DHS and its assessments of his house and the care of C.J. He expressed his belief that C.J. was developmentally delayed but that C.J. would at some point reach the status of an average child or above. He stated that C.J.'s hair-follicle test was positive for cocaine because Yolanda's mother was living in a cocaine- and methamphetamine-infested motel. He announced his intention to stay with Yolanda.

The trial court questioned Kirby about the allegations made by Yolanda (before she recanted them), including the allegations that Kirby kicked her, hit her in the head, bit her, locked her in a closet for one night, hit C.J. in the head and back with his fist; that Kirby had been abusive to her for years; that he had broken her nose and busted her head open in the past; and that he called her “bitches, hoes, and motherfucker,” and cursed C.J., too. Kirby responded that he thought Yolanda made those allegations because she was easily influenced by her mother.

Dr. Deyoub, a forensic psychologist, testified that he had prepared psychological evaluations on Yolanda and Kirby. Dr. Deyoub expressed his opinion that Yolanda's recanting of the abuse allegations was not credible, explaining that she could not articulate why she had made the allegations nor why she had recanted. He testified that she had an IQ of 55; that her academic ability was also 55, the lowest score on the WRAT; that she would have trouble making day-to-day decisions; that she would not be able to attend to the day-to-day routines of the child; that he did not believe she had the ability to take care of the child independently; and that the only explanation he could give for how she managed with the child for four years was that Kirby was there. He said that his diagnosis of dependent personality was secondary to her mental challenges; that he believed she had been in a dependent relationship with Kirby for twelve years; that he believed it was an exploitative, controlling relationship; and that the order of protection from domestic court came shortly before DHS got involved.

Dr. Deyoub testified that he had stated in his report that reunification services would not help “because nothing will raise her IQ, and she will not be able to process or take advantage of services.” He stated that if Yolanda decided to stay with Kirby, then that presented an additional level of potential harm for C.J.

With respect to his evaluation of Kirby, Dr. Deyoub testified that his IQ was 82; that he had very significant test results for anxiety disorder, obsessive disorder, alcohol dependence, cocaine dependence, and a personality disorder. He said that Kirby admitted that he had used cocaine at some point in his life, but claimed that it was twenty years ago. He stated that his assessment of alcohol dependence was based on Kirby's history; and that Kirby told him he was still drinking but minimized the amount. He said that Kirby had acknowledged that he had been treated at the VA years ago for alcohol and cocaine. Dr. Deyoub said that although Kirby “completely denied” any domestic abuse, he believed there was domestic abuse and that returning C.J. to the same people, with the same relationship, and under the same circumstances without any type of admission of abuse, would be to do so without any remediation. Dr. Deyoub testified that he did not find Kirby to be credible. The only problem Kirby identified to Dr. Deyoub was that Yolanda and her mother “got together to take C.J. away.” He expressed his opinion that there would be potential harm if C.J. were returned to Kirby and that, in his view, there would be another case, i.e., that it would happen again.

Mary Giles, Children's Program Director at the learning center that provided full developmental services to C.J. before he was taken from Yolanda and Kirby, testified that she did not have any concerns with the specific physical care C.J.'s parents gave him; that he was functioning at a one-to-two-year-old level; and that even though Kirby told them C.J. was potty trained, she did not consider him ready to be potty trained because he could not cognitively understand the process of potty training. She said that she saw Yolanda interact with C.J.; that she thought Yolanda was doing the best she could based on her developmental level; and that the learning-center staff often gave her additional support. She stated that she did not have any concerns about physical harm to C.J. by his parents, but that she was concerned that they would not be able to fully care for him based on his developmental needs. She said that the learning-center personnel were under the impression that the parents were in denial about C.J.'s actual developmental state, and that with such denial there is concern about an inability to provide proper care. She said that C.J. seemed bonded to them.

Heather Zakrzewski, a special-education instructor, testified that C.J. had been in her class since August; that he received special training to develop daily-living skills and pre-language skills; that he could not speak; that he was not toilet trained; and that she did not see those two things...