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

• Decision Date: 05 October 2016
• Docket Number: No. CV-16-538,CV-16-538
• Citation: 503 S.W.3d 813,2016 Ark. App. 453
• Parties: Jessica TAYLOR, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees
• Court: Arkansas Court of Appeals

2016 Ark. App. 453
503 S.W.3d 813

Jessica TAYLOR, Appellant
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees

No. CV-16-538

Court of Appeals of Arkansas, DIVISION II.

OPINION DELIVERED OCTOBER 5, 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 children.

503 S.W.3d 815

ROBERT J. GLADWIN, Chief Judge

Appellant Jessica Taylor appeals the March 28, 2016 order of the Crittenden County Circuit Court terminating her parental rights to her minor children, A.T.1 and A.T.2, as well as the attempted adjudication of her infant daughter, A.T.2, as dependent-neglected that occurred at the beginning of the November 3, 2015 hearing held on the termination-of-parental-rights (TPR) petition filed by appellee Arkansas Department of Human Services (ADHS). As an initial matter, we dismiss the appeal of the adjudication of A.T.2 as dependent-neglected. The TPR order appealed from was entered on March 28, 2016, and appellant filed a timely notice of appeal on March 31, 2016, that specifically indicated the appeal of the March 28, 2016 order with a reference to a hearing regarding the adjudication and the TPR order. The TPR order, however, does not reference the adjudication of A.T.2, and a nunc pro tunc adjudication order as to A.T.2 was not filed until July 6, 2016 effective as of the November 3, 2015 hearing date). Because the record was lodged with our court on June 9, 2016, the trial court no longer had jurisdiction to enter the nunc pro tunc order. It was filed with our court, along with a stipulation from the parties to supplement the record, on July 18, 2016, but that does not cure the fact that the order attempting to adjudicate A.T.2 dependent-neglected is a nullity.

With respect to the TPR order, we affirm as to A.T.1 and reverse and remand with respect to A.T.2. We will address the supporting grounds for termination of appellant's rights as to the minor children individually.

I. Facts

On March 18, 2014, ADHS received a hotline referral from Crittenden County Regional Hospital about appellant, and ADHS family service worker Deidra Reed investigated. The nurse reported concerns about appellant's "current living situation and her mental capability." Appellant—the mother of then one-month-old A.T.1—reported that, about a month before, she had returned to town. She initially lived with her father, but he did not have working utilities, so she moved into the local women's shelter. Appellant reported that her son, S.B., was in foster care in Oklahoma because she had "signed her rights away ..." because she could not afford to care for him. According to the investigation, appellant appeared to be "low functioning" and had reported that she had been prescribed PTSD and anxiety medications. Given the circumstances, ADHS assumed immediate emergency custody of A.T.1.

Three months later, the trial court conducted an adjudication hearing. The trial court found that, given appellant's failure to provide adequate housing, she had neglected A.T.1. A.T.1 was adjudicated dependent-neglected on June 10, 2014, and the trial court ordered A.T.1 to remain in ADHS's custody. Reunification and adoption were made concurrent case goals. Appellant was ordered to do certain things to achieve reunification: (1) complete a psychological evaluation and follow all recommendations; (2) obtain safe, stable housing, including functional utilities; (3) obtain stable employment or other means of income; (4) complete intensive parenting classes; and (5) submit to random drug screens.

As of the September 2014 review hearing, appellant was in substantial compliance with the trial court's orders, having completed parenting classes and having submitted to a psychological evaluation. The trial court maintained a goal of reunification and ordered A.T.1 to remain in ADHS's custody. The case was not reviewed again until February 2015; however, the trial court entered an interim order

503 S.W.3d 816

on December 16, 2014, that ordered ADHS to provide appellant with housing-assistance services.

On June 1, 2015, appellant gave birth to A.T.2 and was allowed to leave the hospital with the baby. However, upon learning that appellant had given birth, ADHS appeared at her residence—she had resumed living with her father in his camper—and without entering or verifying the conditions of the home, removed A.T.2 from appellant's custody based on the following:

This Worker and FSW Fleming went to the address with [local police] assisting. Upon arrival This Worker and FSW Fleming informed [appellant's] father that [ADHS] was going to have to take custody of [A.T.2] and he and [appellant] refused and [appellant's father] locked [appellant and A.T.2] in the camper and police then instructed him to open the door. [Appellant] then began to yell outside of the camper cursing and making racial slurs to the Workers and stated that she would put a bullet through her head. At this time this Worker and FSW Fleming began to back away from the camper and informed Law Enforcement of what [appellant] had stated and they then backed off as well but were later able to talk [appellant] out of the camper.

It was determined that since A.T.1 had been in foster care, appellant's circumstances had not improved:

The camper does not have any working utilities. The living situation is not suitable to care for a child at any given time. The mental state of [appellant] appears to be unstable and there is no financial means to provide for [A.T.2].

ADHS assumed immediate emergency custody of A.T.2 and filed a petition for emergency custody and dependency-neglect on June 9, 2015, stating that A.T.2 had been removed because the home was inadequate and because appellant had an open case on A.T.1.

On June 18, 2015, just seventeen days after A.T.2's birth, ADHS filed a TPR petition alleging that TPR was in both children's best interest pursuant to two statutory grounds set out in Arkansas Code Annotated section 9–27–341(b)(3)(B)(i)(a) and (vii), with only the latter ground being alleged in regard to A.T.2. The trial court set a termination hearing on the TPR petition and scheduled A.T.2's adjudication hearing for the same date.

At the hearing on November 3, 2015, the trial court first heard evidence pertaining to A.T.2's adjudication and ordered her adjudicated dependent-neglected based on inadequate housing and because "[A.T.1] is in [A]DHS legal custody ...." The trial court then moved directly to the TPR hearing on both children, and at the conclusion of that hearing, terminated appellant's parental rights to both A.T.1 and A.T.2.

The TPR order was entered on March 28, 2016, and appellant filed a timely notice of appeal on March 31, 2016, that specifically indicated the appeal of the order of the trial court entered on March 28, 2016, with reference to a hearing regarding adjudication and TPR. The record was lodged with our court on June 9, 2016, and a nunc pro tunc adjudication order as to A.T.2 was not filed until July 6, 2016, effective as of the November 3, 2015 hearing date. It was filed with our court, along with a stipulation from the parties to supplement the record, on July 18, 2016.

II. Standard of Review

The standard of review in termination-of-parental-rights appeals is de novo, but we reverse a trial court's decision to terminate parental rights only

503 S.W.3d 817

when it is clearly erroneous. Hernandez v. Ark. Dep't of Human Servs. , 2016 Ark. App. 250, 492 S.W.3d 119. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Id. Credibility determinations are left to the fact-finder, here, the trial court. Schaible v. Ark. Dep't of Human Servs. , 2014 Ark. App. 541, 444 S.W.3d 366.

III...