Holloway v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 458
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-914
JASMINE HOLLOWAY Opinion Delivered September 9, 2015
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. 26JV-14-129]
ARKANSAS DEPARTMENT OF HONORABLE VICKI SHAW COOK,
HUMAN SERVICES AND MINOR JUDGE
CHILD
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Jasmine Holloway appeals from the order of the Garland County Circuit
Court terminating her parental rights to her daughter, G.H. On appeal, Holloway contends
that the circuit court erred in finding G.H. to be dependent-neglected, in finding aggravated
circumstances as a basis for terminating her parental rights, and in “fast-tracking” the
termination of her parental rights. We affirm.
I. Background and Procedural History
Prior to the instant case, Holloway had a history with the Arkansas Department of
Human Services (DHS) revolving around the status of her mental health and her supervision
of G.H. In 2010, there was an unsubstantiated referral for inadequate supervision. Later that
year, there was a true referral for threat of harm, suffocation, and inadequate supervision.
Cite as 2015 Ark. App. 458
DHS maintained an open protective-services case for three months in 2010, followed by an
open foster-care case from August 2010 through February 2012.
The instant case began with a January 2014 hotline report to the Garland County
Division of Children and Family Services (DCFS), which indicated that Therapeutic Family
Services had tried to have Holloway committed due to her schizophrenia, her failure to take
her medication, and her paranoia and agitation. Approximately one month later, in February
2014, the Garland County DCFS received another hotline report that G.H. had been taken
first to National Park Hospital and then to Arkansas Children’s Hospital, suffering from
dystonic symptoms that were consistent with having taken an overdose of medication. DHS
placed a seventy-two-hour hold on G.H. at that time.
After the seventy-two-hour hold, DHS filed a petition for emergency custody and
dependency-neglect, which the circuit court granted in an order entered the next day. Six
days later, the court entered a probable-cause order in which it cited DHS’s previous history
with the family and determined that there was probable cause that the emergency conditions
that necessitated removal of G.H. from Holloway’s custody continued.
Three months later, the circuit court entered an adjudication order in which it found
G.H. to be dependent-neglected. The court found that G.H. suffered from abuse and neglect
due to Holloway’s failure to appropriately supervise G.H., which resulted in G.H.’s being
left alone at an inappropriate age, thus creating a dangerous situation or a situation that put
the juvenile at risk of harm. Regarding the cause of G.H.’s hospitalization and Holloway’s
failure to appropriately supervise, the court specifically stated that it found
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Cite as 2015 Ark. App. 458
that the testimony of Dr. Karen Farst is highly credible and that the juvenile could
have died due to the ingestion of the mother’s prescribed anti-psychotic medication
found in the juvenile’s system or the juvenile could have suffered permanent damage,
and finds that the mother is very hostile and angry, that she has not submitted to
therapy, and that she cannot keep the juvenile safe. The Court further finds that the
juvenile has spent three-fourths of her life out of the mother’s custody.
Based upon this, the court concluded as follows:
The Court finds by clear and convincing evidence that the juvenile was subjected to
aggravated circumstances in that the juvenile was subjected to extreme cruelty and
that said neglect and abuse inflicted upon the juvenile could endanger the life of the
child, and finds by clear and convincing circumstances that there is little likelihood
that services to the family will result in successful reunification, especially in light of
the facts of this case and the family’s history with the Department.
The court declared that the goal of the case would be adoption. Holloway did not appeal
from this adjudication order.
DHS subsequently filed a petition for termination of parental rights. As grounds, DHS
cited Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A)&(B) (Repl. 2009),
which provides for termination when a parent has subjected a juvenile to aggravated
circumstances. As defined, “aggravated circumstances” means that a juvenile has been
abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused,
or a determination has been made by a judge that there is little likelihood that services to the
family will result in successful reunification.1
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DHS also alleged statutory grounds under section 9-27-341(b)(3)(B)(vi)(a) (the court
has found the juvenile dependent-neglected as a result of neglect or abuse that could
endanger the life of the child) and section 9-27-341(b)(3)(B)(vii)(a) (the “subsequent issues
or factors” statutory ground). Because Holloway’s arguments on appeal pertain to the court’s
“aggravated-circumstances” findings, it is unnecessary to discuss these other two factors
further.
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Cite as 2015 Ark. App. 458
After a hearing, the circuit court granted the petition to terminate Holloway’s parental
rights. In its written order, the court noted that Holloway had been found to have subjected
G.H. to aggravated circumstances and that its previous adjudication of aggravated
circumstances had not been appealed. Specifically, the court cited G.H.’s exposure to
antipsychotic medications that caused her to suffer a realistic and serious threat of death. The
court also noted its previous findings, “by clear and convincing evidence at the adjudication
hearing, that the juvenile was subjected to aggravated circumstances in that she was subjected
to extreme cruelty and that said neglect and abuse inflicted upon the juvenile could endanger
the life of the child, and . . . that there is little likelihood that services to the family will result
in successful reunification especially in light of the facts of this case and the family’s extensive
history with the Department.” Citing testimony presented during the hearing, the court also
found that G.H. was adoptable and stated that it considered the potential harm to G.H.’s
health and safety if she were returned to Holloway’s custody. The court therefore granted
DHS’s petition to terminate Holloway’s parental rights.
II. Aggravated Circumstances
Holloway’s first argument on appeal is that the circuit court erred “in finding
dependency-neglect against the mother” based on its finding of aggravated circumstances.
Her second point on appeal is that the court erred in finding aggravated circumstances and
cruelty as bases for termination of her parental rights. Both of these arguments pertain to the
circuit court’s determination in the adjudication order that G.H. was dependent-neglected
and had been subjected to aggravated circumstances.
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Cite as 2015 Ark. App. 458
An adjudication order is an appealable order in a dependency-neglect proceeding.
Ark. Sup. Ct. R. 6-9(a)(1)(A) (2014). In termination cases, a challenge to a finding of
aggravated circumstances must be made, if at all, in an appeal from the adjudication order.
Willingham v. Ark. Dep’t of Human Servs., 2014 Ark. App 568; Hannah v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 502. Where a party fails to appeal from an adjudication order in which
an aggravated-circumstances finding is made, she is precluded from asserting error with
respect to that finding on appeal from an order terminating parental rights. See Anderson v.
Ark. Dep’t of Human Servs., 2011 Ark. App. 791, 387 S.W.3d 311; Krass v. Ark. Dep’t of
Human Servs., 2009 Ark. App. 245, 306 S.W.3d 14. Accordingly, we are unable to reach
either of Holloway’s first two arguments on appeal.
III. “Fast-Tracking” Termination
Holloway’s third argument on appeal is that the circuit court erred and abused its
discretion in “fast-tracking” the termination of her parental rights and “denying her the
court’s usual provision of rehabilitative services and a permanency planning process.” This
argument was never presented to the circuit court, however, and it is thus not preserved for
our review. Samuels v. Ark. Dep’t of Human Servs., 2014 Ark. App. 527, 443 S.W.3d 599;
Cushman v. Ark. Dep’t of Human Servs., 2013 Ark. App. 3 (we will not consider arguments
raised for the first time on appeal); Gilmore v. Ark. Dep’t of Human Servs., 2010 Ark. App.
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614, 379 S.W.3d 501.2 The circuit court’s order terminating Holloway’s parental rights is
therefore affirmed.
Affirmed.
VAUGHT and HIXSON , JJ., agree.
Kearney Law Offices, by: Jeffery H. Kearney, for appellant.
Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
2
Even if we were to reach the merits of Holloway’s arguments, we would find no
merit to them. Holloway complains that no permanency-planning process was allowed prior
to DHS’s decision to seek termination. There is no requirement in Arkansas law, however,
that a permanency-planning hearing be held prior to the filing of a petition to terminate
parental rights. See Ark. Code Ann. § 9-27-338(b)(1)(A) (Repl. 2009) (“This section does
not prevent the Department of Human Services or the attorney ad litem from filing at any
time prior to the permanency planning hearing a . . . [p]etition to terminate parental rights.”);
Ark. Code Ann. § 9-27-338(b)(2) (“A permanency planning hearing is not required prior to
[a petition to terminate parental rights].”); Ark. Code Ann. § 9-27-341(b)(1)(B) (“This
section does not require that a permanency planning hearing be held as a prerequisite to the
filing of a petition to terminate parental rights or as a prerequisite to the court’s considering
a petition to terminate parental rights.”).
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