2013 Ark. App. 521
Ark. Ct. App.2013Background
- DHS investigated after Sept. 6, 2011 hotline report of suspected abuse of D.S.; DHS substantiated abuse and later adjudicated the children dependent-neglected based on the home condition and appellant’s behavior.
- Children were removed from Janice Burns’s custody; review hearings occurred through late 2012; temporary custody of D.S. was granted to paternal grandmother Nancy Swiney on Nov. 14, 2012.
- Caseworker Marice Bragg testified at the Jan. 10, 2013 permanency-planning hearing that Burns had inconsistent contact information, an unstable housing history, intermittent and mixed drug screens, no verifiable income, and no documentation from an inpatient rehab facility.
- Burns testified she was in rehab, had completed parenting classes, planned to seek disability income, and would live with her mother; she blamed DHS for lack of services and asserted she was making progress.
- The circuit court denied Burns’s motions (dismissal and directed verdict), found Burns had not complied with case-plan objectives (housing, employment, substance documentation), questioned her credibility, awarded permanent custody of D.S. to the Swineys, and closed the dependency-neglect case (order filed Feb. 7, 2013).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court failed to follow permanency preference (return within 3 months) | Burns: evidence showed measurable progress and child could be returned within three months | DHS/Court: child needed immediate permanency; progress was not verified or reliable | Court: Argument not preserved; even on merits, evidence supported permanent placement with Swineys |
| Whether DHS failed to provide reasonable services after transfer to Helena | Burns: DHS provided little/no services after transfer, violating reasonable-efforts requirement | DHS: prior orders made reasonable-efforts findings; failure-to-serve in the later period was due to Burns’s failure to provide contact info | Court: Prior reasonable-efforts findings unappealed; for the review period at issue, court found lack of services resulted from Burns’s failure to keep DHS informed; affirmed |
| Sufficiency of evidence to support change of permanency goal | Burns: lack of services and some positive evidence of compliance meant goal change was not substantiated | DHS/Court: Burns lacked stable housing, income, credible explanations for drug tests, and failed to produce rehab documentation | Court: Evidence supported finding that permanency with grandparents was in child’s best interest |
| Preservation and standard of review | Burns: raised new statutory-preference argument on appeal | DHS/Court: appellate review limited to preserved arguments; standard is de novo with deference to trial credibility findings | Court: Did not consider new argument; affirmed trial court under applicable standards |
Key Cases Cited
- Anderson v. Ark. Dep’t of Human Servs., 385 S.W.3d 367 (Ark. Ct. App. 2011) (standard of review and deference to trial court credibility findings in dependency-neglect proceedings)
- Scudder v. Ramsey, 426 S.W.3d 427 (Ark. 2013) (appellate courts will not consider arguments raised for first time on appeal)