Mary Link and Thomas Link v. Arkansas Department of Human Services and Minor Children ( 2023 )

Cite as 2023 Ark. App. 569ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-23-263
Opinion Delivered December 6, 2023
MARY LINK AND THOMAS LINK
APPELLANTS
APPEAL FROM THE MILLER
V. COUNTY CIRCUIT COURT
[NO. 46JV-22-134]
ARKANSAS DEPARTMENT OF HONORABLE L. WREN
HUMAN SERVICES AND MINOR AUTREY, JUDGE
CHILDREN
APPELLEES AFFIRMED
KENNETH S. HIXSON, Judge
Mary Link and Thomas Link appeal separately from an adjudication order finding
their children, MC1 (DOB 08-19-06), MC2 (DOB 11-12-11), and MC3 (DOB 04-30-15)
dependent-neglected. In Mary’s appeal, she argues that the Arkansas Department of Human
Services (DHS) failed to sufficiently prove that the children were dependent-neglected and
also that DHS failed to make reasonable efforts to prevent the children’s removal. In
Thomas’s appeal, he too argues that DHS failed to sufficiently prove that the children were
dependent-neglected. We affirm.
I. Facts and Procedural History
DHS has had a long history of involvement with this family, which dates back to 2014
when a protective-services case was opened for suspected environmental neglect. DHS had
further involvement with the family in 2016, 2018, and 2019. Most recently, DHS opened
a protective-services case in May 2022 concerning allegations of educational neglect—
specifically that the children had not been attending school for the past two years—and DHS
again began providing services to the family.
On October 31, 2022, while this most recent protective-services case remained open,
DHS received a hotline report citing allegations of environmental neglect, inadequate
shelter, and inadequate supervision. After an investigation that included interviews with all
three children, DHS exercised an emergency hold on the children on November 1, 2022.
On November 7, 2022, DHS filed a petition for emergency custody and dependency-
neglect. DHS attached to the petition the affidavit of DHS investigator Peter Ferrara. The
affidavit stated that in the hotline report it was alleged that the Links’ trailer had no running
water, a significant cockroach infestation, and a shortage of food for the children. It was
also alleged that MC1 was not being taken to medical appointments and that Thomas may
be using controlled substances. Mr. Ferrara stated in the affidavit that he went to each of
the three children’s respective schools and independently interviewed each child. According
to the affidavit, MC1 told him that their home was frequently without running water and
that the family had been without running water for approximately two weeks. MC1 further
stated that their home has cockroaches “everywhere” and that there is frequently a shortage
of food, especially in the middle of the month when their food stamps run out. MC1 also
stated that her mother was bedridden due to an ankle surgery and that MC1 was frequently
forced to be the caretaker for her younger siblings. MC1 stated that she suspected her father
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may be using drugs because he associated with a friend who uses drugs and would stay gone
from the residence for days at a time. When Mr. Ferrara interviewed MC2, MC2 stated that
her father cannot keep up with the bills; that they will go several days without running water,
and the water had been off for the last five days; and that there were so many cockroaches in
the home that she had seen her father vacuum up the roaches with a shop vac. In MC3’s
interview, he stated that the children do not have enough to eat or have clean clothes; that
there was no running water in the home, and he had not bathed in a while; and that there
were “too many [cockroaches] to count.”
Mr. Ferrara’s affidavit went on to state that after he interviewed the children, he
proceeded to the Links’ trailer in an attempt to make contact with the parents. He arrived
at 11:25 a.m. and received no response after knocking on the door of the residence. 1 No
sounds or activity were detected inside the trailer. Mr. Ferrara stated that he saw large
amounts of bagged and unbagged trash in the yard, and there was a foul odor emanating
from the porch and surrounding area. Based on these facts, DHS exercised an emergency
hold on the children.
On November 8, 2022, the trial court entered an ex parte order for emergency
custody of the children. On December 14, 2022, the trial court entered a probable-cause
order stating that the parents had waived the probable-cause hearing and requested that an
adjudication hearing be scheduled.
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It was later learned that Mary was inside the trailer that day when Mr. Ferrara
knocked on the door.
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The adjudication hearing was held on January 9, 2023. Mr. Ferrara was the first
witness to testify. Mr. Ferrara testified about his interviews with the three children and their
statements concerning the trailer sometimes being without running water or adequate food
and the roach infestation. Mr. Ferrara also testified about his visit to the trailer wherein he
observed trash “piled very high” by the mailbox near the trash receptacle, where some of the
bags had “burst and the trash had fallen on the ground and not been picked up.” Mr. Ferrara
also observed a small amount of trash on the porch and stated there was a “no trespassing”
sign on the front door. When Mr. Ferrara knocked on the door, no one answered. Mr.
Ferrara also stated that there was an unpleasant odor on the porch. Mr. Ferrara produced
photographs that were consistent with his description of the condition of the property. Mr.
Ferrara testified that, from what he had observed, the trailer was not a fit and proper or
environmentally safe place for the children to be living.
Mr. Ferrara stated that when he exercised the emergency hold on the children, they
had a “very strong odor that would be associated with when you don’t wash yourself and
sweat.” He stated that, in addition to their initial clothing allowance, DHS purchased
hygiene items, including shampoo and soap, and let the children bathe before they changed
into clean clothes.
Alexis Lampkins, who is the primary caseworker in the case, testified next. Ms.
Lampkins stated that, as part of the open protective-services case, DHS completed a referral
for the Youth Advocate Program (YAP), which she described as a “preventative service” to
assist the family. Ms. Lampkins further testified that DHS provided home visits,
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transportation, and cleaning supplies. Ms. Lampkins, however, stated that both parents were
uncooperative with DHS and at times would become upset and decline to accept the cleaning
supplies. Ms. Lampkins stated that the parents “were 100 percent against the Department
providing services to them” and that DHS had difficulty gaining access to the house. Ms.
Lampkins stated further that, despite DHS efforts, the unsanitary and unsafe condition of
the home had not been remedied. She indicated that there was a lot of trash, a cockroach
issue, and floors in need of repair. Ms. Lampkins stated that this was not just a dirty home
but one that was unsafe and dangerous for the children. She described it as a “severe
environmental issue in the home” and stated, “I’ve addressed it, and it has just not been
remedied as it should be.” Ms. Lampkins also suspected a possible issue with substance
abuse, and she testified that she had asked both parents to submit to a random drug screen
but that both had refused. Ms. Lampkins believed it was in the children’s best interest to
remain in DHS custody and continue to receive services.
On cross-examination, Ms. Lampkins was questioned about another caseworker’s visit
to the trailer, which had occurred on October 30, 2022, just two days before removal of the
children. Reading from the other caseworker’s report, Ms. Lampkins stated that on that
visit, the trash was stacked in the yard as it had been before, and the yard needed to be
cleaned. However, the caseworker also reported a clean kitchen and running water and
further reported “a few groceries [were] needed” and there were a “few pests.”
Melanie Bellew is a family intervention specialist for YAP and stated that, beginning
August 11, 2022, she would visit the home twice a week for a minimum of two hours each
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visit and provide intensive treatment services and counseling for the family. Ms. Bellew
stated that on her first visit, there were lots of bugs and the home was in disarray, but after
that, there were significant improvements in the home. She did indicate that there was an
issue with trash and roaches and there was an odor in the house, but she never noticed the
need for any repairs.
Christina Johnson, a therapist, provides counseling for all three children. Ms.
Johnson testified that MC1 had expressed feeling depressed, having anxiety, and having
suicidal ideation and further expressed that these issues were related to MC1’s relationships
in her family. Ms. Johnson was concerned that MC1 has “some trauma that she needs to
deal with” and indicated that “from day one” after her removal, MC1 expressed that she did
not want to go home to her parents. According to Ms. Johnson, MC1 had been placed in
the position of a parental role in caring for her younger siblings, which she thought was an
unhealthy environment. Ms. Johnson thought that MC1 needed more therapy before
returning to her parents, and she also opined that it would not be in the best interest of
MC1’s younger siblings to return home at that time.
Mary testified on her own behalf. Mary acknowledged that there had been a roach
infestation at the trailer, but she indicated they had since sprayed roach killer and vacuumed
up the dead roaches, which helped alleviate the problem. Mary also acknowledged that the
floor needs to be repaired and that, on a couple of occasions, they had been without running
water but that “it’s never been off for not even like seven days.” Mary denied that the water
was shut off when the children were removed, and she was unsure why her children had
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reported it was shut off. Mary stated that the family receives food stamps and that on one
occasion the food stamps were cut off due to an issue with her application, and she also
acknowledged an issue with having food “like the last of the month maybe.” However, Mary
stated that the children were never without something to eat and never went to bed hungry.
Mary stated that she had broken her ankle and would likely not be able to walk until June
2023. She stated that because of her broken ankle she is not working but that she plans to
resume her work at a convenience store when it is healed. Mary stated that there were a few
times she refused DHS access to her home but explained that on those occasions, Thomas
was not there, and she would have had difficulty getting around with her broken ankle. Mary
also acknowledged that, partially due to her broken ankle, she depends on MC1 to help
parent the younger children. Mary stated that she missed her children and was working on
finding a better home. Mary stated that she would follow any of the trial court’s orders
because she “would do anything for [her] children.”
Thomas testified that he is employed at Family Dollar. He acknowledged that they
had run out of food stamps in the past but maintained they had never run out of food.
Thomas stated that the water to the trailer had been shut off twice, and he acknowledged
that he needed to replace a section of the kitchen floor. He also acknowledged a problem
with cockroaches, stating that they are very hard to kill but that “I’ve pretty much got them
eradicated.” Thomas stated that on one occasion he refused DHS access to the house but
stated that he did so because the caseworker was disrespectful. Thomas also testified that
DHS had asked him to take a drug test but that he refused the test, and stated, “I don’t see
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the point in it because I do not have a history of drug abuse.” Thomas stated that he had
not used methamphetamine since he was eighteen years old.
Based on the evidence presented at the adjudication hearing, on February 6, 2023,
the trial court entered an adjudication order finding all three children dependent-neglected
due to neglect and parental unfitness. The trial court specifically found that “the allegations
in the petition are true and correct and that the parents failed to provide for the essential
and necessary physical, mental, and emotional needs of the juveniles including a shelter that
does not pose a risk to the health or safety of the juveniles.” The trial court found that it
was in the best interest of the children to remain in DHS custody, and the goal of the case
was reunification with a concurrent goal of relative placement.
Mary and Thomas each separately appealed from the adjudication order.
II. Legal Framework
Adjudication hearings are held to determine whether the allegations in a petition are
substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1)(A) (Repl. 2020). A dependent-
neglected juvenile is one at substantial risk of serious harm as the result of, among other
things, neglect or parental unfitness committed against the juvenile, a sibling, or another
juvenile. Ark. Code Ann. § 9-27-303(17)(A) (Supp. 2021). Dependency-neglect allegations
must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(A)(ii)
(Supp. 2021). In dependency-neglect cases, the standard of review on appeal is de novo, but
we do not reverse the trial court’s findings unless they are clearly erroneous. Samuels v. Ark.
Dep’t of Hum. Servs., 2016 Ark. App. 2, 479 S.W.3d 596. A finding is clearly erroneous when,
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although there is evidence to support it, the reviewing court on the entire evidence is left
with a definite and firm conviction that a mistake has been made. Id. In reviewing a
dependency-neglect adjudication, we defer to the trial court’s evaluation of the credibility of
the witnesses. Id. The focus of an adjudication hearing is on the child, not the parent; at
this stage of a proceeding, the Juvenile Code is concerned with whether the child is
dependent-neglected. Id.III. Mary’s Appeal
In Mary’s appeal, she argues that DHS failed to sufficiently prove that the children
were dependent-neglected. Mary also argues that DHS failed to make reasonable efforts to
prevent the children’s removal. We address Mary’s arguments separately.
A. Adjudication of Dependency-Neglect
Mary first argues that the trial court clearly erred in finding the children dependent-
neglected. She contends that there was a lack of evidence to support the trial court’s findings
of neglect or parental unfitness and further asserts that the children are not at a substantial
risk of serious harm.
Mary asserts that, although DHS identified environmental issues with the home
during the protective-services case, the testimony at the adjudication hearing showed that
these conditions had improved as the case progressed. Mary notes that the YAP family
intervention specialist, Melanie Bellew, testified that on her initial visit to the home, it was
in disarray but that she later observed “large improvements” and noticed nothing in need of
repair. A DHS caseworker visited the home just two days prior to the removal of the children
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and noted in her report that the trailer had running water and the kitchen was clean.
Although all three children told the DHS investigator that the house was without running
water, Mary states that there was no evidence to support these statements and that the
children’s statements were contradicted by the DHS report. Although there were reports of
large amounts of trash around the home, a cockroach problem, and issues with groceries,
Mary contends that none of what was reported rises to the level of neglect or parental
unfitness. Mary argues that because DHS failed in its burden to prove that the children were
dependent-neglected, the adjudication order should be reversed.
Although the trial court’s finding that the children were dependent-neglected was
based on both neglect and parental unfitness, only one basis is necessary to support a
dependency-neglect finding. See Mayer v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 365, 674
S.W.3d 748. We uphold the trial court’s finding of dependency-neglect on the basis of
neglect.
“Neglect” includes those acts or omissions of a parent that constitute a failure to
provide for the essential and necessary physical, mental, and emotional needs of the
juveniles, including failure to provide a shelter that does not pose a risk to the health or
safety of the juveniles. Ark. Code Ann. § 9-27-303(37)(A)(iv) (Supp. 2021). Moreover, the
statutory definition of a neglected child does not require proof of actual harm or impairment
having been experienced by the child. Maynard v. Ark. Dep’t of Hum. Servs., 2011 Ark. App.
82, 389 S.W.3d 627. The term “substantial risk” speaks in terms of future harm. Id.10
The children were removed from the home after DHS received a hotline report, later
confirmed in interviews with the children, that the house had no running water, a roach
infestation, and inadequate food. Although Mary denies that the house was without running
water at the exact time the children were removed, both Mary and Thomas acknowledged in
their testimony that they had been without running water in the past. In MC1’s statements
to Mr. Ferrara, she stated that the home had roaches “everywhere” and that there was
frequently a shortage of food, especially in the middle of the month when their food stamps
ran out. When Mr. Ferrara went to the home on the day of removal, he noticed large piles
of trash in the yard and foul odor emanating from the porch. Mary was home that day but
did not answer when he knocked on the door. Mary and Thomas both testified that there
were times when they denied DHS access to the home, and during the case, both Mary and
Thomas had also refused a drug test. Thomas also admitted in his testimony that the kitchen
floor of the home was in need of repair.
Although Mary argues that improvements were made to the living conditions of the
home prior to the children’s removal, we find it significant that all three children, when
independently interviewed on the day of removal, identified significant environmental
concerns in their statements to Mr. Ferrara. The issues of no running water, a cockroach
infestation, inadequate food, and an overabundance of trash all bear negatively on the
physical, mental, and emotional needs of the children and pose a risk to their health and
safety. The primary DHS caseworker testified that this was not just a dirty home but was an
unsafe and dangerous situation for the children. Having reviewed the record, we hold that
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the trial court did not clearly err in finding the children dependent-neglect based on the
children being at a substantial risk of serious harm as a result of neglect as defined in the
Juvenile Code.
B. Reasonable DHS Efforts to Prevent Removal
In the adjudication order, the trial court found that DHS had made reasonable efforts
to prevent removal of the children. Mary asserts that this finding was clearly erroneous.
Mary argues that, other than the YAP services, the only services provided by DHS were home
visits and providing cleaning supplies, and she asserts that additional services should have
been offered to prevent removal.
Arkansas Code Annotated section 9-27-327(a)(2) (Repl. 2020) provides that at the
adjudication hearing,
[u]nless the court finds that a removal occurred due to an emergency and the agency
had no prior contact with the family or the child, evidence shall be presented to the
court regarding all prior contact between the agency and the juvenile or the family
before a finding of reasonable efforts to prevent removal by the Department of
Human Services.
Mary correctly notes that the emergency exception was not applicable because the agency’s
first contact with the family was not at the time of removal. We, however, conclude that the
trial court did not clearly err in finding that reasonable efforts were made to prevent the
need for removal of the children. Mary acknowledges that DHS provided cleaning supplies,
and in the DHS caseworker’s testimony, she stated that the parents would sometimes decline
to accept these supplies and were uncooperative with DHS’s efforts to provide these and
other services. Mary also acknowledges that the family was provided with YAP services,
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which included a family intervention specialist visiting the home twice a week for a minimum
of two hours a day. Despite these services to the parents, the need for removal was not
prevented.
Moreover, even if the trial court had not found that reasonable efforts were made,
Ark. Code Ann. § 9-27-335(e)(2)(C) (Repl. 2020) would have allowed the trial court to
remove the children and transfer custody to DHS “despite the lack of reasonable efforts by
the department to prevent the need for out-of-home placement if the transfer is necessary . .
. to protect the juveniles health and safety.” Here, the trial court specifically found in its
order that “continuation of custody in the Department is in the best interests of the juveniles
[and] necessary to the protection of the juveniles’ health and safety.” Because we cannot
hold that the findings by the trial court were clearly erroneous, we affirm on this point.
IV. Thomas’s Appeal
Thomas’s only argument on appeal is that the trial court clearly erred in finding the
children dependent-neglected. Thomas argues many of the same points raised in Mary’s
brief and states that there were contradictory facts as to whether the home posed a risk to
the children’s health and safety, that there was testimony as to improvements to the
condition of the home during the protective-services case, and that the children were never
without adequate food. The focus of an adjudication hearing is on the child, not the parent;
at this stage of a proceeding, the Juvenile Code is concerned with whether the child is
dependent-neglected. Samuels, supra. For the reasons explained in our discussion of Mary’s
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appeal, we also reject Thomas’s argument and hold that the trial court did not clearly err in
finding the children dependent-neglected.
Finally, we note that, under Thomas’s sole argument on appeal, he also states:
In all actuality, the underlying issue from which these allegations flow is the socio-
economic hardship of the Link family. Mary could not work because of her ankle;
the family was dependent upon a single-income household and food stamp benefits
that fell through in September of 2022.
Thomas goes on to argue that, because of the family’s financial hardships, a finding of neglect
would not be supported under Ark. Code Ann. § 9-27-303(37)(A)(ii) (Supp. 2021), which
provides that “neglect” includes:
Failure or refusal to provide the necessary food, clothing, shelter, or medical
treatment necessary for the juvenile’s well-being, except when the failure or refusal is
caused primarily by the financial inability of the person legally responsible and no services for
relief have been offered[.]
(Emphasis added.) However, as recognized by Thomas in his brief, the trial court did not find
neglect under subdivision (37)(A)(ii) of the statute but rather found neglect under
subdivision (37)(A)(iv), which provides that neglect includes “[f]ailure . . . to provide for the
essential and necessary physical, mental, or emotional needs of the juvenile, including failure
to provide a shelter that does not pose a risk to the health or safety of the juvenile.” We
have already concluded that the trial court’s finding of neglect under subdivision (37)(A)(iv)
was not clearly erroneous, and as Thomas recognizes, that subsection contains no exception
for financial inability. Nonetheless, we note that the record shows that Thomas was
employed during the case, the family was living rent-free in a trailer, the family received food
stamps, and DHS had been providing cleaning supplies, which were at times rejected by the
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parents. Thus, we do not agree with Thomas’s claim that the family was without means to
improve the conditions of the home and provide a safe environment for the children.
V. Conclusion
In conclusion, we hold that the trial court committed no clear error in finding the
children dependent-neglected, nor do we find clear error in its finding that DHS made
reasonable efforts to prevent removal of the children. Therefore, we affirm Mary’s appeal,
we affirm Thomas’s appeal, and the adjudication order is affirmed in its entirety.
Affirmed.
ABRAMSON and WOOD, JJ., agree.
James & Streit, by: Jonathan R. Streit, for separate appellant Thomas Link.
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for separate appellant
Mary Link.
Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for
appellee.
Dana McClain, attorney ad litem for minor children.
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