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

• Decision Date: 28 September 2016
• Docket Number: No. CV-16-463,CV-16-463
• Citation: 2016 Ark. App. 435,502 S.W.3d 569
• Parties: Tomeko Sharks, Appellant v. Arkansas Department of Human Services and Minor Child, Appellees
• Court: Arkansas Court of Appeals

2016 Ark. App. 435

502 S.W.3d 569

Tomeko Sharks, Appellant

v.Arkansas Department of Human Services and Minor Child, Appellees

No. CV-16-463

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered September 28, 2016

Leah Lanford, Ark. Pub. Defender Comm'n, for appellant.

Andrew Firth, County Legal Operations, for appellee.

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

BRANDON J. HARRISON, Judge

Tomeko Sharks appeals the Pulaski County Circuit Court's decision to terminate his parental rights to his child, one-year-old D.S. He argues that terminating his parental rights was not in D.S.'s best interest and that the Arkansas Department of Human Services (DHS) failed to prove a statutory ground to support the termination. We affirm the circuit court's decision.

I. Case History

In December 2014, DHS took emergency custody of D.S. after someone had reported that Sharks was swinging four-month-old D.S. in a threatening manner at the Pulaski County Courthouse. Police officers arrested Sharks for public intoxication after observing him behave erratically and telling them he would kill D.S. and D.S.'s mother if he had to. The circuit court adjudicated D.S. dependent-neglected in February 2015. The court found D.S.'s putative father Tomeko Sharks's "use of alcohol with his prescription medication ... make him an unfit parent."

The court then ordered Sharks, among other things, to

1. Cooperate with DHS

2. Undergo a psychological evaluation if he hadn't undergone one within the previous six months

3. Attend and participate in individual counseling and follow all recommendations

4. Take medication as prescribed

5. Refrain from illegal drug and alcohol use

6. Undergo a drug-and-alcohol assessment

7. Submit to random drug screens

8. Complete parenting classes

9. Obtain and maintain stable employment or income

10. Maintain safe, stable housing

The court also appointed Sharks a guardian ad litem after he "displayed behavior that concerned the Court." Because of this behavior, the court ordered Sharks to undergo a drug screen, which was positive for amphetamines. Sharks refused the alcohol portion of the drug test.

A review order was entered June 2015. There, the court wrote,

Putative father [Sharks] has minimally complied with the case plan and court orders. Specifically, he cancelled his psychological evaluation. He attended one parenting class and was dropped from those classes for nonattendance. He has not submitted to random drug screens when requested by DHS. He had the drug and alcohol assessment. He was positive for benzodiazepines on one screen, but has a prescription to account for that positive screen. He was positive for alcohol on one drug screen. He was arrested several times since the last hearing—two times for public intoxication. He has visited the juvenile six (6) of the ten (10) scheduled visits. He appeared at one of the visits under the influence, but he was allowed to visit, as he was not inappropriate. No information has been presented, other than his testimony, that he is attending individual counseling or substance abuse treatment. He is evasive and not truthful. He has not cooperated with DHS as far as signing release for V.A. information. He has made no progress towards alleviating or mitigating the causes of the juvenile(s)' removal from the home.

In its September 2015 permanency-planning order, the court found Sharks to be D.S.'s legal father based on DNA evidence and appointed an attorney to represent him. The court also noted that Sharks "has been incarcerated in Pulaski County Jail since August 16 and expects to be released October 16." While the court noted that Sharks's visits with D.S. were "very appropriate," it also stated that Sharks "did not attend all of the visits before his incarceration, and has missed more visits than he attended." Sharks had not submitted to random drug screens as ordered or provided a release for DHS to obtain his medical records from the Veterans Affairs. The order states, "The court believes [Sharks] has been in individual counseling and substance abuse treatment at the V.A.; but, there is no documentation to support that claim nor to demonstrate the progress made in treatment."

DHS petitioned for termination of parental rights in October 2015. The petition alleged that terminating Sharks's parental rights was in D.S.'s best interest and that two statutory grounds for termination existed under Arkansas Code Annotated sections 9–27–341(b)(3)(B)(vii)(a ) (Repl. 2015) (other-factors-arising ground) and 9-27-341(b)(3)(B)(ix)(a ) (3)(B)(i) (aggravated-circumstances ground). Sharks was not satisfied with his appointed attorney, so the circuit court granted Sharks's request for a continuance and appointed him a different one.

II. The Termination Order

The court held a termination hearing in January 2016 and entered a final order terminating Sharks's parental rights in February 2016. The termination order, in part, states,

After the filing of the original dependency-neglect petition, other factors or issues arose which demonstrate that placement of the juvenile in the custody of the father is contrary to the juvenile's health, safety or welfare. This case has been open for over a year, and Mr. Sharks just started completing services a couple of weeks ago, well after the October 15, 2015 date of the filing of the Petition for Termination of Parental Rights. He failed to complete the parenting classes to which he was referred, and was dropped for missing two (2) classes. He continued not to provide his medical records from the V.A., and only provided a release to obtain his medical records two (2) weeks ago. Three (3) referrals had to be made for father for a psychological evaluation, and two (2) referrals for a drug and alcohol assessment. The Court finds Jessica Warren's testimony to be very credible. Ms. Warren testified, today, that the parents have made a game of whether they will complete services, and are not interested in participating in the services to remedy the cause of the juvenile's removal. On December 22, 2015, Mr. Sharks told Ms. Warren that the juvenile's mother had stabbed him in the leg, and that they have a violent relationship. Subsequently, Ms. Warren and a DHS Supervisor talked to mother about severing her relationship with Mr. Sharks, and the mother did not seem to see the issues that would place the juvenile at risk if she remains in a relationship with Mr. Sharks. Mr. Sharks did not complete his psychological evaluation until January 18, 2016, and only completed his drug and alcohol assessment on January 25, 2016. He has only attended twenty one (21) of fifty five (55) scheduled visits with this juvenile since the case began on December 12, 2014. This week, he presented Ms. Warren with proof of completion of the Centers for Youth and Families parenting class he attended. He did not submit to all of the requested drug screens, as court ordered. He submitted a certificate of participation for completion of the 28-day intensive outpatient substance abuse program at the V.A. Today, Mr. Sharks testified that he is not an alcoholic, and that he has learned his triggers to think he can drink a beer. Mr. Sharks talks a good game, but he does not follow through in any timely or consistent manner with the things that have been put in place by DHS and this Court to enable him to be a fit and proper parent with whom this child can be placed, in the event the mother was not able to become a fit and proper parent. The Court finds Mr. Sharks very credible regarding his testimony today that his [ ] disease, his disk problems, his hypertension, and his PTSD did not cause him to not participate in services.

The Court finds Mr. Sharks has ongoing issues related to his mental health diagnosis of PTSD and his alcohol abuse, and those require consistent long-term treatment. Mr. Sharks is not viewing this case or the juvenile's needs from a realistic perspective, especially when he testified that, although he currently does not have stable housing for the juvenile, he has a sister and brother in town, and they will open up their house immediately. The Court finds Mr. Sharks not credible in his testimony that he did not know he had to work this hard from the beginning, and he was not aware that he was supposed to participate in the case plan until he was released from his incarceration on October 16, 2015. The Court finds Mr. Sharks to be manipulative, and untruthful, as the Court has made painstaking efforts, every step of the way, to explain to him and the juvenile's mother, what was happening in the case at each hearing, what was required to enable the juvenile returned to the legal custody of mother or, in the alternative, for the juvenile to be placed in the permanent legal custody of the father, and the time frame in which those services and steps needed to be completed. At times Mr. Sharks would talk erratically and not be focused, and the Court took great care to ensure he understood what was required of him. At other times, he would talk clearly and appropriately. That is why, from the day after the disposition-hearings the Court appointed a guardian ad litem for Mr. Sharks.

The juvenile's foster mother, Jessica (last name withheld), testified today that the juvenile attends ninety (90) minutes of speech therapy, sixty (60) minutes of developmental therapy, and sixty (60) minutes of occupational therapy each week. The juvenile is prescribed a Flovent inhaler, two (2) times per day, for reactive airway, a nebulizer (which is an albuterol breathing treatment for shortness of breath and wheezing), as needed, and Ranitadine, for his reflux, two (2) times per day. The Court finds this foster mother to be very capable and very truthful. She testified that parenting this juvenile is a full-time job because of his therapies, many medical appointments, many medical issues, and the time it takes to work with him on his speech development. He is very time

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