Salazar v. Ark. Dep't of Human Servs., CV–16–1083

• Decision Date: 05 April 2017
• Docket Number: No. CV–16–1083,CV–16–1083
• Parties: Leanna SALAZAR, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
• Court: Arkansas Court of Appeals

518 S.W.3d 713

Leanna SALAZAR, Appellant

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

No. CV–16–1083

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: April 5, 2017

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Mary Goff, Office of Chief Counsel, Bentonville, for appellee.

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

WAYMOND M. BROWN, Judge

Appellant appeals from the circuit court's termination of her parental rights to A.M., born 8/15/14. On appeal, appellant argues that (1) the circuit court erred in abdicating its duty to evaluate the evidence and make its own findings as to the issue of A.M.'s placement across state lines with appellant, and (2) there was insufficient evidence to support a finding that termination was either in A.M.'s best interest or that the alleged grounds were proven or relevant to the circumstances of appellant and her boyfriend, Jeffrey McCollum.¹

On November 3, 2014, though they lived in Killeen, Texas, appellant and McCollum were driving through Arkansas on their way to Missouri when they were subjected to a routine traffic stop. Finding K2 (synthetic marijuana) and an infant in the car "covered by a blanket" that had "K2 smoke trapped" underneath it, appellant was arrested for possession of a controlled substance and endangering the welfare of a minor in the second degree. McCollum was arrested for possession of a controlled substance, possession of drug paraphernalia, and endangering the welfare of a minor in the first degree. The Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on November 6, 2014. The circuit court entered an ex parte order granting the petition on the same date.

A probable-cause order was entered on December 11, 2014, stating that appellant had waived the necessity for a probable-cause hearing and finding that probable cause existed—and continued to exist—for A.M.'s removal. An adjudication order was entered on January 23, 2015, adjudicating A.M. dependent-neglected due to neglect and parental unfitness. Appellant stipulated that DHS would prove the facts stated in the affidavit and the circuit court found the same. In the order, the circuit court stated that it would transfer the case to State of Texas "if the Court in the resident county of the mother will accept transfer." The goal of the case was reunification.

In the circuit court's April 16, 2015 review order, it stated that appellant had not yet received the case plan and therefore extended her time to complete her case plan by one month. It specifically stated that it "would not transfer [the] case to Texas at this time."² The goal of the case continued to be reunification.

The circuit court's July 16, 2015 review order restated that the goal of the case was reunification and that the case would not be transferred to Texas. It stated that appellant "needs to comply with the case plan" for she had "minimally complied" in that she attended visits with A.M., but had "not provided proof that she had stable housing, attended counseling, completed a drug and alcohol assessment, completed a psychological evaluation or obtained employment." It noted that appellant had informed DHS that she would obtain services in Texas instead of Arkansas "through the Department" there. Appellant was advised that said services would need to meet Arkansas's DHS requirements and that she would be financially responsible for services she obtained outside of Arkansas.

The circuit court entered an order on September 30, 2015, seeking an expedited placement decision under the Interstate Compact on the Placement of Children (ICPC) finding that under "Article III(d) of the [ICPC] codified as Arkansas Code Annotated section 9–29–201 et seq., this court may only authorize the Arkansas Department of Human Services ("DHS") to place each of the above juvenile [sic] in a receiving state, including provisional placement ... after receipt of written notification from the receiving state that the proposed placement does not appear to be contrary to the best interest of the juvenile."³

In its November 4, 2015 review order, the circuit court found that appellant had "complied with the case plan in that she has attended visits with the juvenile, attended counseling, completed a drug and alcohol assessment, attended drug treatment, completed parenting classes, [and] completed a psychological evaluation." However, appellant still needed to complete an ICPC home study, have her employment verified by DHS, and have McCollum's Social Security benefits verified by DHS. Its order also noted that McCollum had attended visits with A.M., attended counseling, completed a drug and alcohol assessment, attended drug treatment, and completed parenting classes. Finally, a Court–Appointed Special Advocate (CASA) was appointed and the circuit court stated that it would order an ICPC home study of appellant's residence in a separate order.

A permanency-planning order was entered on January 15, 2016, stating that "[t]he Court, mindful of the available permanency-planning dispositions, does hereby determine that it is in the best interest of the juvenile that the goal of the case shall be: To authorize a plan to return the juvenile to the parent, [appellant]." It went on to state:

The Court finds [appellant] is complying with the established case plan and orders of the Court, making significant measurable progress toward achieving the goals established in the case plan, and diligently working toward reunification. Specifically, the conditions that caused the juvenile's removal and the juvenile's continued removal from the home; and the return of the juvenile to [appellant] shall occur within a time frame that is consistent with the juvenile's developmental needs but no later than three (3) months from the date of the permanency planning hearing[.]

The circuit court stated that appellant still needed to complete an ICPC home study. The order stated that the circuit court would await the results of the ICPC home study "to determine the issue of custody of the juvenile with [appellant] and for monitoring purposes if the child is placed with [appellant]." If approved, A.M. was to be placed with appellant, noting that the circuit court "[wanted] to move as quickly as possible closing the case."

On February 12, 2016, DHS noted that Texas had denied placement of A.M. with appellant and closed its file. The attached December 27, 2015 home study stated that it had been determined that the conditions in appellant's home were "Favorable" and that placement was "recommended" in appellant's family home based on the strengths determined during the assessment. However, it also stated that the "decision to verify or approve a home lies with the Foster and Adoptive Home Development Program" and that there was "no guarantee" that the home would be verified or approved based on the recommendation. A December 29, 2015 Kinship and Disposition Summary detailed that appellant's home had not been selected as a placement option due to a safety concern and a well-being concern. It stated that before reconsideration could be made, McCollum had to begin treatment for his schizophrenia

, appellant and McCollum needed to complete drug and alcohol screenings or obtain recommendations from their therapist that they were drug free with the tools to remain so, and background checks needed to be completed in any state they had resided in the last five years, including Arkansas and Missouri.

In the circuit court's fifteen-month-review order entered March 14, 2016, it changed the goal of the case to termination of appellant's parental rights and adoption. It stated that while appellant had complied with the case plan and McCollum had sought services as well as attended visits with A.M., the ICPC home study on their home was denied. It ordered that concerns raised in the home study "shall be addressed prior to placement of the juvenile with" appellant in Texas. DHS was ordered to request a follow up with the ICPC home study and prepare an addendum to the ICPC home study to be sent to Texas. The circuit court specifically noted that while the goal of the case had been changed to adoption, prior to the termination of parental rights (TPR) hearing, it "shall consider placement of the juvenile with the [appellant] in the State of Texas through ICPC if the issues raised by the State of Texas can be resolved."

Appellant filed a motion to show cause on May 12, 2016, stating that "at the February 23, 2016 hearing, it was discovered that the original home study," which was denied on December 29, 2015 by Texas, "did not contain the updated material that showed the compliance of the Defendant, with the bulk of the issues review [sic] by DCFC in Texas" and DHS "represented to the court that it would send an addendum." Appellant had determined that DHS had not requested the addendum as of May 11, 2016, thereby prejudicing her, and sought a contempt citation. An order to show cause was entered on May 20, 2016.

On June 12, 2016, appellant's and McCollum's counselor since April 22, 2016, forwarded a letter stating that appellant had "made progress in regarding [sic] issues previously thought to be concerns in such a manner that [she did] not believe they [were] concerns at the time." She stated that appellant had "appropriately addressed concerns" about her father's contact with A.M. However, while noting McCollum's "potential to be more independent with support around learning tools to manage his symptoms appropriately[,]" she stated that his "need for intensive support and his not being open to receiving support from anyone but [appellant made] her hesitant to recommend the child be placed in the couple's home at this time." She suggested that three to four months of additional time be given for appellant and McCollum to "learn how to act in a manner where [A.M.] is a priority...