Johnson v. Arkansas Department of Human Services

Karen R. Baker, Judge, dissenting. I would reverse finding that the failure to provide any services to the father within the twelve-month period when the children were in out-of-home placement fails to meet the statute’s requirement that a meaningful effort be made by DHS to rehabilitate the home and correct the conditions that caused removal. Because the statutory prerequisites for termination of parental rights were not met, the State had no authority to terminate this father’s rights.

The facts of this case make it clear that the conditions and circumstances that caused removal of these three children are related to poverty. The parents’ second child was diagnosed with failure to thrive, caused by the parents feeding the infant watered-down formula. It takes no leap in logic to understand that parents with limited resources might water down formula to make it go further when feeding their child. In that case, DHS did provide services to the family. The condition that caused the removal was remedied and was not repeated with either the first child or the two subsequent children.

The second case the State filed concerning this family occurred when the parents found themselves without housing. The reason stated for the second case file being opened was that the father dropped the mother and his three sons off at a shelter “not telling the mother of his whereabouts.” The abstract contains documents that indicate that when the family was asked to leave the motel in which they had been living, the mother contacted DHS, and DHS told the family to go to the shelter. When the mother contacted DHS a second time, she was unable to say where the father was. Again, it is logical that a man looking for housing might not be able to provide an address or give information as to his specific location at any given time.

At the probable cause hearing held less than two-weeks later, it was found that despite services rendered, the family had no means to support the children, and the State took custody of the children from their parents. Two months later at the adjudication hearing, the children were found to be dependent-neglected. While the majority states that this determination was “not due to poverty per se,” there is no explanation of factors relied upon by the trial court or this court that establish the basis for the removal of these children except poverty. At the time of the adjudication hearing, both parents were living together in another motel.

By the time of the permanency planning hearing, both parents were still living together at yet another motel. This time, the mother was pregnant with the parents’ fourth child. The judge asked her if she understood the cause of pregnancy and how to prevent it and emphasized that he had already taken away her other three children. Given this exchange, it is not surprising that the mother left the State of Arkansas with her unborn child before the next hearing. Until faced with the threat that she might lose yet another child to the State’s custody, she had attended every hearing and worked with DHS in the receipt of services.

At the time DHS took these children away from their parents, the family had lived for years as a two-parent family. No allegations that the parents were abusive or that the children were in danger were ever made. 1 While living from motel to motel may not be the optimal living situation, the family had consistently lived from motel to motel. Although testimony revealed that the cost of motel rental was generally more than for other housing rental, nothing in the record explains why DHS’s rental assistance failed to help stabilize the parents’ living accomodations.

Throughout their life together as a family, the parents had never married and all three children were born out-of-wedlock. As the psychologist who performed the psychological evaluation of the father observed, if this man were given his children back (had he not been incarcerated) he would likely go to Texas. This is a logical conclusion given that the mother of these three children was in Texas with their fourth child and the two had consistently lived together with their children. Although the majority emphasizes throughout its opinion that the father had been ordered to establish his paternity, there is no dispute that this man consistently acknowledged these children as his family. Not only did he acknowledge them, he was the sole provider of support of these children without any state assistance at the time the children were removed from his custody. Despite this fact, the judge ordered that no reunification services be provided to him until he established paternity by some means other than his verbal claim to it.

The hearing for termination of parental rights was held on November 14, 2000. For the first time since the beginning of these proceedings, counsel was appointed for appellant. 2 At the hearing, the father argued that DHS had not made a meaningful effort to reunify him with his children because he had been provided absolutely no reunification services during the case. DHS conceded that the agency had not provided appellant with any reunification services. This concession was necessary since DHS was under court order to not provide any services to the father until he established his legal paternity.

First, the court ordered DHS not to provide services to the father. Then the court ordered DHS to provide services merely as a prerequisite to termination of his parental rights. Ordering that services be provided to the father, at that stage of the proceedings, was inherently contradictory to the requirement that a meaningful effort be made by DHS to rehabilitate the home and correct the conditions which caused removal.

Furthermore, the correlation between the father’s failure to establish legal paternity to the children and the condition of his being unable to support his family and provide appropriate housing, eludes me. However, if it is so significant as to be a basis for terminating parental rights, then I must point out that once DHS was finally ordered to provide services to the father, DHS provided no services related to the court’s order regarding paternity.

The majority offers an alternative grounds for termination based upon Ark. Code Ann. § 9-27-341 (b) (3) (B)(vii) (a) citing the father’s incarceration. The majority is careful to try to make the distinction that the trial judge did not terminate his parental rights because the father had been incarcerated, but because the statutory requirements for termination had been met. However, that section of the code also requires that DHS offer appropriate family services and that despite the offer of appropriate family services the parent has manifested incapacity or indifference.

The trial court’s order precludes any such finding. On March 6, 2001, the court entered a permanency planning order in relation to the father alone that found that DHS had complied with the case plan, in that DHS “had made reasonable efforts to deliver reunification services. Specifically, the Department has offered a drug and alcohol assessment and a psychological evaluation.” Testimony at trial indicated that the father completed both the drug and alcohol assessment and a psychological evaluation while incarcerated. The court then concluded that the father had not complied with the case plan or orders of the court. “Specifically, he has not received therapy nor has he participated in drug treatment. The Court realizes he has been incarcerated since the last hearing and not free to participate in these activities.” Testimony of the DHS representative conceded that appellant was cooperative in relation to the offered services, but that some services were not offered because the representative was unfamiliar with the prison system and whether some services were available. Specifically, the representative stated that she thought that drug treatment had been available in other cases of incarceration, but was not offered here. The court then relieved DHS from providing any further reunification services unless appellant obtained a lawful release from custody.

The father cooperated in every service offered. DHS conceded that failure to offer some services to that point fell upon DHS. Then the court, for a second time, relieved DHS from providing any services. Nothing could support the finding that the father manifested indifference or incapacity when the testimony presented by DHS established that he was cooperative and completed the services offered to him.

The facts of this case are disturbing, but the fact that it is not an isolated case makes reversal even more imperative. Trial judges have a duty to insist upon strict compliance with the statutory criteria before entering an order terminating parental rights. This “[ijnsistence upon strict compliance with the statutory criteria . . . enhances the child’s best interests by promoting autonomous families and by reducing the dangers of arbitrary and biased decisions amounting to state intrusion disguised under the rubric of the child’s best interests.” In re Danuael D., 724 A.2d 546, 553 (Conn. 1999)(citations omitted). Therefore, our adherence to strict compliance with our statutes is not merely a standard of review. See Arkansas Dep’t of Human Servs. v. Cox, 349 Ark. 205 , 82 S.W.3d 806 (2002) (finding DHS’s conduct deeply disturbing when agency took custody of child utterly without authority and outside the limited circumstances set out in our state statutes). As one law journal notes, statistical data on neglect and children living in poverty show that “[s]tate governments appear to be destroying family ties of a large number of poor families with no concomitant benefit to children.” Second Chances: Insuring That Poor Families Remain Intact by Minimizing Socioeconomic Ramifications of Poverty, 102 W. Va. L. Rev. 607 , 613 (Spring 2000).

In this State, we require strict compliance with our statutes before destroying those family ties. That was not done here, and this case should be reversed.

Hart, J., joins.

The majority footnotes that with one exception when the eldest child was removed from the foster home for a brief time, that the boys were reunited in the same foster home. It should be noted that the reason for the removal was abuse of the child while in foster care, m the custody of the State.

This hearing was also the first time that die mother of the children was represented by counsel, although she was not physically present. Counsel was appointed for the purpose of the termination proceeding and relieved upon its conclusion.