*1 261 his claim. outrage to sustain facts that existed sufficient after he answered Gray’s Here,- course, allegedly of threats made motion summary judgment. confederate, by Gray purported and his Affirmed. Flowers, were the Derrick essence case. Cesena’s HENRY, JJ., GLOVER and agree. Treece, The second is Hess v. case (1985),
Ark. 693 S.W.2d where
divided court affirmed the award of com- damages and
pensatory punitive where
defendant, Hess, by motivated personal
animosity, two-year campaign on a carried plaintiff discharge to cause Treeee’s from 2009 Ark. App. During the Little Rock Police Force. JONES-LEE, Appellant, Eurana years, personally those two Hess through paid kept informants Officer v. repeatedly
Treece under surveillance and ARKANSAS DEPARTMENT OF reports plaintiffs supervi- filed false SERVICES, HUMAN in the Rock Police Department, sors Little Appellee. alleging official misconduct as as often No. CA 08-1008. twice a week. of Appeals Court alleged repeti-
While the duration and of Arkansas. tive nature of the conduct Hess is analo- March bar, we gous case at believe that inappo- nature of the conduct makes Hess First, not a
site. Hess is case where the supervi-
plaintiff and defendant had a relationship, but rather
sor/subordinate plaintiffs employment
one where Second, by
affected conduct. complaints by made Hess cal-
17false spawn police investiga-
culated to official superiors.
tions Treeee’s also Hess Treece,
essentially expanding stalked
scope geo- complained conduct
graphically temporally anywhere anytime. Conversely, the conduct
that Cesena of in instant complains
ease was not intended to result official investigations place
police did not take place
outside of the out- employment or of work
side hours.
Because we hold that the com- conduct of is
plained sufficiently extreme and
outrageous support outrage as to Cesena’s
claim, we disputed need not consider the *2 13, 2005), (born
September and C.S.J. 2007). March She argues that circuit court erred in determining that ter- *3 mination was in the children’s best inter- est, that the Department Arkansas of Hu- (DHS) man Services a meaningful made effort to rehabilitate the home and correct removal, the conditions that caused remedy she failed to the conditions that caused the children to be removed from the home. She also challenges the continuance, denial of her motion for a contending precluded that it pre- from senting evidence regarding her current mental status. affirm We the termination order and the denial of her motion for a continuance. and Procedural History
_[¿Factual began This case report with a of inade- quate supervision of Jones-Lee’s two old- 10, 2007, February est children. On DHS five-year-old found three-year-old Z.J. and C.J. unattended at their home. Jones-Lee left the children unsupervised while she one-year-old attended church with A.J. Z.J. and were immediately C.J. taken into emergency custody. time, At the Lee was pregnant seven months’ with later, days Two investigator C.S.J. spoke with Jones-Lee by telephone and Jones-Lee agreed bring A.J. into DHS’s However, office. Jones-Lee arrived with- Firm, PLLC, Robertson Law by: Bon- out A.J. She told the investigator that she Robertson, Rock, nie ap- North Little for left the older children alone go pellant. church due to their problems. behavior Turner, Gray Allen Office of Chief She said that she did not patience have the Counsel, Rock, appellee. Little take boys the older to church and that Lanford, P.A., by: Leah B. Leah Lan- she did not feel like “smacking” them. ford, Rock, Little for minor children. explained She that while she was at church, watching “God was the children.” BROWN, Judge.
WAYMOND M. investigator further told the appeals from an or- that she could do whatever wanted to hEurana terminating children, der her parental rights to her with her that she did not have to (born 20, 2001), August four children: Z.J. investigator, answer to the and that she (born (born 15, 2003), C.J. November A.J. must answer to God. Jones-Lee ad- investigator manager. hospital- that she had case He recommended
mitted outpatient ization or at least treatment and depression but said diagnosed been management. her medication medication not take be- that she did depen- not want to become she did cause ordered, began As individual dent. with Fritzie on June 12, ,(2007. In | July a letter dated custody taken into until the
A.J. was not Hemphill notified Jones-Lee’s first case- February held probable cause worker, Shirley Burgess, they on March 2007. C.S.J. was born addressing depression, the issues of memo- later, days emergency DHS took cus- Two *4 loss, ry parental capacity, and that Jones- |shim, and the circuit court subse- tody weekly in participated Lee had probable found cause to continue quently sessions, been and she had referred All the children were eventu- custody. management. Hemphill for medication dependent-neglected. ally adjudicated stated, further “We have also discussed boys placed in the The two older experienced the fact that Ms. Jones had home; A.J. and C.S.J. were same foster difficulty some remembering important foster homes. placed separate Burgess, may necessary events. Ms. be supervised Lee was awarded visitation. obtaining physi- to assist Ms. Jones with a 1) required plan The case to neurological cal evaluation evalua- and/or 2) housing employment; and obtain stable tion to rule out medical issues.” and complete parenting to classes demon- skills; 3) participate to parenting strate During the review hearing, first held on psychological any 27, 2007, evaluations and follow July the court found that Jones- 4) therefrom; resulting recommendations “substantially complied” Lee had with the 5) as prescribed; to take medication to case and plan progress had made “some” 6) alcohol; illegal drugs refrain from and mitigating toward the reasons for removal. 7) home; a clean to maintain and safe to In particular, completed Jones-Lee had ability to and protect classes, demonstrate parenting undergone psy- had 8) safe; keep steps the children to take evaluation, chological had exercised visita- paternity the chil- resolve one of tion and acted appropriately, working was 9) dren; participate and individual part-time apart- and had moved into an counseling. ment, participating was in therapy, was taking prescribed, medication as and had performed Dr. Paul DeYoub psycho- attended the appoint- children’s medical 7, logical evaluation of May Jones-Lee on ments. The court noted that Jones-Lee 2007. He considered Jones-Lee to be “needs to continue services and be able to ill chronically displayed psy- because she demonstrate provide that she can for the secondary depression. chosis He diag- juveniles’ keep needs and them safe and major depression, nosed Jones-Lee with protected.” severe, recurrent and with psychotic fea- tures; 5, 2007, parenting problems; personality September On the court entered disorder, inadequate dependent. and Dr. a temporary prohibiting order DeYoub felt that reunification family was not an and her extended members from option visiting because Jones-Lee was “too dis- the home of the parents, foster schools, He did not think that turbed.” reunifica- children’s venue where tion present. could be considered until Jones-Lee the children were On September participated regular stabilized and in a hearing before the next review medication, conducted, routine therapist, and a was Jones-Lee was incarcerat- r,misdemeanor charges. ed on unrelated maintained stable housing employ- [ ment; County She remained the Pulaski Jail and that she exercised weekly visi- 19, until December except tation when the children were sick or DHS was unable to facilitate the visits. The next review was held Nonetheless, the court found that after 6, report December 2007. In a court filed being released from incarceration in De- previous day, DHS prior stated cember Jones-Lee missed several incarceration, she exercised outpatient therapy appointments. Despite ordered, visitation as maintained a safe having three appointments scheduled in children, environment for herself and her January February outpatient counseling. received explained that she wanted to defer coun- court found that compliance with the case seling until she completed her parenting plan “very, very slowly” proceeding classes and obtained a psychological evalu- an appropriate permanency toward plan However, ation. previously she had com- for the children. The court noted that pleted parenting in April classes 2007 and Jones-Lee did not exercise visitation with *5 obtained a psychological evaluation in May incarcerated, her children while but that 2007. Jones-Lee claimed that she had she did visit them prior to incarceration. received consistent mental-health treat- It further noted that Jones-Lee had violat- ment since June that she had attend- previous ed its order visiting one of her ed her bi-monthly appoint- medication children at the parent’s foster home. ments, and that she took her medications The court also found that Jones-Lee had prescribed, as although she did not feel the any not received formal mental-health out- medication helped her. The court cited treatment, patient although spent she five Dr. opinion, DeYoub’s stating it did days in epi- UAMS for “a mental-health not believe Jones-Lee’s assertion that she sode.” It further found that Jones-Lee had been receiving type or frequency was taking prescribed two of her three of mental-health treatment recommended medications, and that she had some indi- DeYoub, by Dr. as she had no supporting vidual counseling prior to being incarcerat- prove documentation to her claim. Final- ed. voluntary Because Jones-Lee’s drug ly, the court found that Jones-Lee had negative, tests were the court found that attended therapy “sporadically, episodical- she had illegal drug refrained from use. ly, inconsistently, and that is not suffi- The court determined that Jones-Lee had cient to warrant additional time for her to only partially complied with plan the case continue working | toward ^reunification.” and court orders and “only had made mini- 22, 2008, mal On progress” February remedying peti- toward the cause DHS filed tion to parental of removal. terminate Jones-Lee’s Jones-Lee was ordered to comply ground with court orders on the plan and the case children had upon jail. her been out of the home for release from more than twelve months and that Jones-Lee had failed to |fiIn a permanency-planning order en- remedy the conditions that caused remov- 22, 2008, tered February § al. See Ark.Code Ann. 9-27- changed goal the case to adoption and (b)(3)(B)(i)(a.) (Repl.2008). A termi- termination of rights. It found nation May was scheduled for Jones-Lee had partially complied plan. with the case It noted that each of drug her negative; screens had been April On Jones-Lee filed a except incarcerated, when she was she motion for a psy- continuance because her appoint- testify be unavailable to at celled three or four of the missed
chiatrist hearing. She also assert- were can- the termination ments and that other sessions requested had a neu- therapist ed that celed due to Jones-Lee’s work schedule had been ob- rological evaluation transportation difficulties. Finally, she asserted that another tained. Hemphill explained that Jones-Lee re- “proba- that Jones-Lee opined doctor had ported in her initial sessions that she had ge- services due to a bly” special needed suffered a head trauma and she had mental in- undiagnosed netic condition and difficulty memory remembering. loss and summarily The court denied the capacity. Thus, the initial treatment focused on ad- request for a continuance.1 dressing depression and de- Jones-Lee’s |sThe hearing proceeded as termination termining genetic medical or whether statements, During opening scheduled. memory precipitating factors were noted that Dr. Ha- Jones-Lee’s counsel loss. testified that Jones-Lee had subpoenaed, roon had been progress” had “made some because she subpoena, released from the not been “developed had some awareness of some of that she was out state. counsel ^dynamics precipitated that could’ve that the court requested leave record the events that have occurred” and be- open pending Dr. Haroon’s re- greater understanding cause “she has a garding Jones-Lee’s mental state. problem leaving the children un- The first witness who testified was Yet, supervised.” observed that Hemphill, outpatient thera- *6 Jones-Lee “still has a limited understand- pist. explained She that Jones-Lee at- ing why wrong it was to leave the weekly tended four sessions as ordered in Hemphill children alone.” concluded that July, that June and she did not attend yet ready Jones-Lee was not to care for incarcerated, therapy while and that she opined her that Jones-Lee children again February treatment in began 2008. require approximately more six Hemphill described Jones-Lee’s attend- therapy position months of to be to “sporadic.” ance as said Hemphill since care for her children. She said that when during preceding the month the ter- ready Jones-Lee would be to do so would hearing, mination Jones-Lee attended depend on whether she had a medical con- basis, weekly on but of the precipitating memory problems. dition weekly forty-eight sessions that could have Hemphill also testified Jones-Lee had been attended since June Jones-Lee own, attempted, on her to obtain a neuro- only eleven. After re- being attended evaluation, logical and that Jones-Lee jail, leased from she attended two sessions obtaining would need assistance in a refer- February April 2008 and two 2008. ral, personally said that she can- functioning. due to her level of thereafter filed a motion for re- tinued. Dr. Haroon further stated in the affi- consideration, asserting that the court should davit that she told DHS that could back, open "easily given proper have left the record Dr. to receive Ha- have her kids if motion, testimony. support” roon's "crucial” To her and that she "assured that the was hearing she attached an affidavit in which Dr. Haroon date for the The was rescheduled.” summarily stated that she informed DHS that she wished circuit court denied Jones-Lee’s Jones-Lee, testify requested Although and she motion for reconsideration. appear hearing telephone. at the via Accord- Lee included that order in her second amend- affidavit, ing appeal, appear to the DHS informed Dr. Ha- ed notice of she does not appear appeal roon that she did not need to in court from the denial of her motion for May on 7 because the would be con- reconsideration. diag- Hemphill’s Dr. DeYoub also testified his testimony, about Pride concluded opined of Jones-Lee. He that reuni- nosis yet Jones-Lee had not demonstrated option fication was not an because Jones- ability protect the children or that disturbed,” Lee “too gaps was the children would they be safe if biggest treatment were the cause of fail- returned to her care. explained ure. He that she needed to be Trulsrud, supervisor Michelle and on a regular stabilized rou- medication volunteer, CASA also testified. She rec- tine, and that she needed mental-health ommended termination based on Jones- treatment. Because he had not reviewed Lee’s failure to complete therapy and the records, any of psychiatric Jones-Lee’s fact that she currently is not able to care Dr. DeYoub was to opine regarding unable for the children. Trulsrud admitted that
whether her mental status was better she had not spoken to psychi- However, than when he saw her. he atrist or to Jones-Lee. opined that if Jones-Lee had not received treatment, regular psychiatric then she Haroon was not present and did InDr. treatment, not adequate had received be- testify. Her supervisor, Michael Up- anti-psychotic cause she needs medi- son, Operation the Chief Officer of Arkan- cations. He also stated that Jones-Lee Healthcare, sas Behavioral brought Jones- would have to have very signifi- made “a Lee’s medical records. He testified that improvement” cant in order for her missed one medication- | to be reunited with her. inchildren management appointment, and that oc- curred when she was Upson incarcerated. caseworker, current Danyette said that Jones-Lee Pride, diagnosed with assigned had been to this case since adjustment disorder depressed December 2007. mood. Pride testified that Upson difficulty had Dr. cooperated, reading Jones-Lee had that she has Haroon’s notes, available, but he testify been has maintained did that Dr. a stable Haroon residence, employment, April has maintained noted on “I do believe *7 trained, that she underwent the if psychological eval- will be a [sic] safe mother.” uation, that she taking was her He give medi- could not an typical estimate for a ordered, cations as and that completed she course treatment but stated with Nonetheless, parenting classes. Pride rec- ill, chronically the mentally the treatment ommended termination based on “non-con- usually “lifelong.” is sistent lack of mental- requested testified that she outpatient health therapy.” She explained parenting in-home services from her case- completed because Jones-Lee had not worker in February gave before she her Hemphill, mental-health therapy then, birth to C.S.J. She said that since no recommendation could be made as to she asked attorney request her in- whether mentally stable attorney creased visitation but that her did enough to care for her children. Pride not broach the subject with the court be- explained that Jones-Lee was never of- cause attorney the not think judge did the fered in-home services to in develop- assist agree. Accordingly, request neither ing parental her skills because she had not presented judge. to the circuit completed counseling. She admitted Haroon, spoken she had not to Dr. In an thoroughly detailing pre- order its psychiatrist, case, Lee’s findings and that she did not vious in this the termi- know what Dr. Haroon recommended re- nated parental rights. The garding Nonetheless, termination. based court based grounds its decision on the petition, in its examination. Dr. by DHS DeYoub testified
asserted outside of Jones-Lee’s had lived that he children tests administered would at least twelve months and that home for neurologi- have indicated if there was a failed to correct conditions Mere problem. compliance cal or last finding, removal. In so that caused compelling minute efforts are not rea- court stated: rights. sons not terminate dispute is no the mother have psychological The mother did
112there
(8)
eight
therapy
has
attended
ses-
complied
evaluation. She
with some of
(11)
in eleven
months. This is
sions
but not all of
recommendations
abysmal. The fact is that we are no
them. She is not a fit
proper par-
today
reunification than we
closer
....
ent
These children cannot wait for
has
were at removal. She
made no
get
position
their mother to
into a
where
mitigating
eliminating
or
progress
may
appropriate,
be able to be an
by addressing
causes of removal
her
mentally-stable parent
day.
some
considerable mental-health issues. She
permanency
children need
and parents
memory
can
has selective
recall the
provide
who can
for all of their needs.
case,
names of the workers
The mother cannot do that.
dates,
attorneys, and
but she has not
the court
terminated Jones-Lee’s
accepted
responsibility
for her role
children,
parental rights to each of her
in the removal of the children from her
appeal
this
followed.2
accept
home. The mother still does not
responsibility for her actions. She still
Termination
very
understanding
little
when
has
as to
|iaAn
terminating parental rights
order
her children were removed. We do not
upon finding by
must be based
clear and
give parents all the time in the world to
convincing evidence that
termination of
achieve reunification. These children
rights is in the best
parent’s
interest
permanency.
deserve
These children
children, considering the likelihood that
of the
custody
have been out
mother’s
adopted
the children will be
if
parent’s
time,
period
yet
for a substantial
potential
are terminated and the
anything through
has not learned
by returning
harm caused
the children to
of this case. She testified that
course
custody
Ark.
parent.
Code Ann.
little or
nothing
she has learned
ther-
9-27-341(b)(3)(A).
§
The court must also
apy.
argued
The mother has
that if the
grounds
§
find one of the
outlined
9-27-
Department only provided her with a
*8
341(b)(3)(B). Only
ground
one
is neces
examination,
neurological
she would be
sary. Albright
Dep’t
v. Ark.
Human
of
However,
in
position.
a different
this
Servs.,
277,
97 Ark.App.
269
neglected
Rather,
and has continued to be out of
are adoptable.
argues
(12)
custody
parent
of the
twelve
the circuit court erred in ordering termi-
and,
despite meaningful
months
effort
nation because it failed to consider the
by
department
to rehabilitate the
potential harm if the children were re-
parent and correct the conditions that
or,
turned to her
alternatively, because the
removal,
caused
those conditions have
evidence does not support
the chil-
by
parent.
not been remedied
dren would be
if
harmed
returned to her.
argues
She also
that the court
speci-
never
parental rights
Termination of
is
fied what “clear
convincing”
evidence
remedy
derogation
an extreme
and in
of
supported its order.
natural rights
parents.
Bene
Servs.,
v. Ark. Dep’t
dict
Human
of
Jones-Lee maintains that
present-
DHS
(2006).
Ark.App.
S.W.3d
ed no evidence regarding the current wel-
However,
paren
courts are
to enforce
fare of the children. She notes that while
tal
to the detriment or destruction
custody,
DHS’s
sepa-
children were
well-being
of the health and
of a child. Id.
other,
rated from each
and that Z.J. and
A heavy
placed upon
party
burden is
C.J. were in four different foster
homes
seeking
to terminate the
relation
year.
|1sShe
less than one
contends that
ship,
warranting
facts
termination
any harm
by
suffered
her children after
proven by
convincing
must be
clear and
removal
custody
from her
was due to the
convincing
evidence.
Id. Clear
evi
instability that they experienced while in
that degree
proof
dence is
which will
baldly
foster care. She
states that “[t]he
produce in the fact finder a firm conviction
presented
evidence
to the court showed
| Mallegation
regarding
sought
to be
potential
more
harm to the
kids
the 15
established.
Id.
When
burden of
they
months
had been out of her care than
proving
disputed
by
fact is
clear and
proved
was ever
to have occurred while
evidence,
convincing
question
they were in her care.” Jones-Lee also
appeal
must be answered on
is whether
blames DHS
providing
for not
her in-home
the trial court’s
finding
disputed
parenting services.
she argues, that
fact was proven
convincing
clear and
the court’s conclusion that
the children
clearly
evidence was
erroneous. Williams
would be potentially harmed if returned to
Dep’t
v. Ark.
Human
99 Ark.
her care is
speculation.
based on
As none
(2007).
App.
viewed de novo on but previous findings findings and its based on give courts a high degree of deference to the evidence court, presented at the termination *9 the circuit in superior as is a far Second, hearing. position statutory to observe the there is no parties before it requirement judge credibility every and that factor witnesses. considered Id. in parental rights termination of action be by established convincing clear and evi
A. Best Interest dence; rather, after consideration of all factors, Jones-Lee not challenge does evidence must be clear and circuit court’s findings convincing that the children that in termination is the best the child. See McFarland v. other proof
interest of of the “harm” that has come to Human Dep’t Ark.App. Ark. her children as a result of being placed (2005). Hence, 210 S.W.3d fact, foster In reports care. court required to specifical- circuit court was court contrary. orders indicate the ly explain supported which evidence its facts, these we hold that the circuit h7On event, findings. best-interest In court in finding did not err termi- recognizes part another interest, nation was in the children’s best her that the circuit argument clearly court considering likely potential harm in being stated that her terminat- returning them to custody. ed due to her lack of mental stability and remedy the failure to her mental instabili- B. Remedy Failure to the Conditions ty through therapy consistent sessions. that Caused Removal 11f;The expressly found that Jones- sessions, Lee had attended few therapy We consider Jones-Lee’s third ar very she testified she learned gument next: that the circuit court erred therapy, little in that she does not under- in finding that she failed remedy removed, why stand the children were conditions that caused removal. See Ark. accept that she does not responsibility for 9-27-341(b)(3)(B)(i)(a). § Ann. Code her actions. The evidence that Jones-Lee prove concedes that she did not comprehend does not places her “consistency in therapy her sessions” but in peril by leaving children them unsuper- contends that complied she otherwise clearly supports vised a finding that the every aspect of the plan. case She main subjected children would be potential tains that her missed therapy sessions harm if returned to her care. apathy were not due to toward her treat In focusing on the “harm” the children ment by but were caused conflicts care, have suffered while in foster work, schedule due to transportation prob argument misplaced, Lee’s as she fails lems, therapist. cancellations to dispute the supporting evidence the cir- argues Jones-Lee also that the court failed cuit potential-harm court’s finding. More- to consider her recent improvements, and over, Jones-Lee cannot create the condi- that it disregarded ways in which she tion that caused her children placed to be complied with the plan. Finally, case in foster care and then argue that argues that permanency could still be instability of the system pre- foster-care achieved within a reasonable amount of cludes the circuit court from finding that time. returning her poses great- children to her Again, Jones-Lee persuade. fails to potential er having harm than the children Jones-Lee does not challenge the circuit remain in the system. foster-care Foster court’s finding that she attended stable, eight care is not meant to be a long-term solution, therapy sessions in eleven months. As the precisely why which is parents sessions, weekly are sessions were given comply limited time to with the plan, forty case should have attended at least why reunification ses- must be time, sions. She four weekly achieved within a attended sessions reasonable from perspective. June/July children’s 2007. As See Jones-Lee was in- Ark.Code 9-27~341(a)(3). §Ann. Moreover, 24, 2007, September in this carcerated from until case, pointing other than December the fact that she attended no fur- some of her placed children were in multi- ther year. sessions with *10 ple homes, foster j Jones-Lee cites to no only attended four out 18Jones-Lee require adequate of what should have been sixteen sessions will mental-health coun- prior being seling, incarcerated. at a minimum. “general” that she received coun- testified It Hemphill is true that both and Jones- incarcerated, seling while but offered psychiatrist Lee’s felt with continued proof to that she re- support no written treatment, Jones-Lee could become stable jail. in counseling Upon ceived while re- enough to regain custody of her children. lease, again counseling she did not attend Hemphill estimated that would take six Hemphill February
with until 2008. She months. arguing pre- While that she was February, two attended sessions none vented from presenting evidence of her March, in April. and two attrib- current mental state and recent improve- only uted three or four missed sessions to ments, Jones-Lee explain why fails to her own cancellations. could not deposed have her psychiatrist, the court since she psychiatrist While cited number of knew the would not be available to counseling testify Jones-Lee’s missed sessions at the termination hearing. “abys- and termed her lack of attendance
mal,” the court was not playing “num- Jones-Lee would have us reverse on the It is game.” apparent bers court hope that she consistently attend did not terminate Jones-Lee’s counseling, would benefit from it when she solely rights based on the fact that she before, did not ready would be counseling Significantly, missed sessions. regain custody of her children when she the court also relied on Jones-Lee’s failure unsupervised had not exercised visitation. anything to learn from the sessions that She was warned the permanency-plan- she did attend. Jones-Lee has not pro- 22, ning 2008, order entered on February gressed point compre- where she sporadic that her counseling attendance young hends that children should not be prevent was insufficient to goal the case unsupervised; accepted nor has she re- Yet, being changed from to termination. sponsibility leaving the children alone. afterward, she attended two more sessions over the next two months. Therefore, the court concluded that today “we are no closer to reunification diligently Had Jones-Lee attended is, counseling, than we were at removal.” That de an may additional six months spite complying with the remainder of her have been reasonable. But to permit her plan, yet case not fit par is more time on the facts in this record is to ent, precisely and her unfitness is hope against hope; deny due her more time comply her failure to with the on the clearly facts record is not errone- portion plan. compliance Uphold of her Partial Accordingly, ous. we that the cir- with, or even completing plan, determining case cuit court did not err in preclude does not termination. remedy What mat Jones-Lee failed to the conditions compliance ters whether a parent’s that caused her children’s removal from completion plan custody. or of the case Dep’t achieved See v. Ark. Jefferson Servs., making intended result of her capable of Human 356 Ark. 158 S.W.3d (2004) caring order, her child. v. (affirming See Ullom Ark. a termination 119for Dep’t part, Human 340 Ark. 12 in because the regu- mother failed to (2000). Here, sessions, portion larly therapy S.W.3d 204 attend and where plan the case with which sufficiently emotionally Jones-Lee com the mother was not plied mentally did resolve mental-health or stable to have her re- child problems. opined, custody, As Dr. DeYoub turned to her that it stating *11 safe, obtaining physical child to have a Jones with evaluation for the
was best home, be as- neurological where she could evaluation to rule out permanent and/or continuity stability). of testified that Hemphill sured medical issues.” report- because Jones-Lee the issue arose Meaningful Efforts
C. trauma having ed suffered a head However, argues memory also that the cir having despite loss. that DHS made finding hearings erred in the two full that were held after cuit court made, effort to rehabilitate meaningful recommendation was the conditions that and to correct brought home Lee the issue to the court’s never argu support removal. In this caused hearing. attention until the termination ment, to two services points determined, As the circuit court the neuro- to her: the neuro provided that were logical apparently evaluation was not im- by her recommended logical evaluation portant to Jones-Lee until the termination parenting and in-home services. counselor hearing. 9-27-341(b)(3)(b)(i)(a) requires Section Moreover, the court on Dr. DeY- relied among things, other that it prove, DHS to according oub’s to his meaningful effort to rehabilitate made a tests, neurological no for a there was basis and to correct the conditions parent He examination. testified tests During removal. the termi- that caused that he administered would have indicated elicit- hearing, nation Jones-Lee’s counsel neurological problem if a existed. Addi- testimony regarding neurological- ed tionally, the court was not convinced that and DHS’s evaluation recommendation memory problems. Jones-Lee had It in-home provide parenting failure to ser- found, instead, memory that her was selec- argued point during
vices. She then words, tive—in other she re- was able to closing argument. ^remember, member what she wanted to problem The fatal for Jones-Lee names, such as her caseworkers’ her attor- appeal any did not from neys, and dates. final, |21appealable adjudication or review short, In the circuit court was faced with orders in which the circuit court deter conflicting that psychiatric evidence meaningful ef mined that DHS had made for a testing neurological revealed no need forts toward reunification. See Ark. evaluation, assertion, versus Jones-Lee’s 2(c)(3). R.App. point prior At no P.-Civ. evidence, medical devoid the termination did Jones-Lee evaluation, needed such an and her coun- challenge appropriateness of the reuni suggestion “may” selor’s that she need offered, offered, by fication services or not in obtaining assistance such an evaluation. failure challenge DHS. Her the court’s It was within the circuit’s court’s discre- prior “meaningful-efforts” findings pre conflicting tion to determine on the evi- reviewing any cludes this court from now dence whether Jones-Lee needed a neuro- rulings resulting from those or adverse Lewis, logical supra. evaluation. See v. appealed ders not from. See Lewis Ark. Dep’t Human 364 Ark. no specific finding The court here made (2005). S.W.3d in- regarding provide DHS’s failure to parenting home services. The caseworker argument also on the fails evaluation, explained parenting that in-home services neurological merits. As to parent “completes” are July provided informed DHS on when However, “may necessary counseling. be Ms. individual the fact assist
273 not “complete” therapy Id Additional that Jones-Lee did believes them to be true. dispositive ly, cannot be because appellant must show prejudice from may necessary even after the denial of a motion for continuance. Id be children We hold that parent’s are returned to a care. What the circuit court in is this case did not abuse its dispositive is the fact discretion in denying Jones-Lee Jones-Lee’s motion for a many continuance. therapy missed so sessions that she never progressed point where it Here, DHS —not subpoe- Jones-Lee — productive seemed to offer in-home par- naed Jones-Lee’s psychiatrist, Dr. Ha- enting services. the circuit court’s roon, appear at the termination hearing. findings Jones-Lee failed to attend April On days ten before the therapy any- sessions and failed to learn hearing, Jones-Lee filed a motion for con- thing support from those sessions DHS’s tinuance on two grounds: that Dr. Haroon decision not to offer parenting in-home would be unable to attend the termination services. hearing because she would be out of state and because Jones-Lee had not received a facts, On these the circuit court not did neurological evaluation. Jones-Lee al- in finding err that DHS meaningful made leged that Dr. opined Haroon “that efforts to rehabilitate the home and cor- | probably is special need of ^Defendant removal; rect the conditions that caused services, as a genetic result of a condition therefore, we affirm the termination order. undiagnosed incapacity.” mental urged that the case should not Motion Continuance for proceed to termination until “a full evalua- n ¾Jones-Lee’s | argument final tion adequate provided services” were is that the circuit court in denying erred to her. her motion for a continuance because the July attached the precluded denial her from presenting evi counselor, letter from her Hemphill, dence supporting that termination was not which Hemphill it “may stated be necessary. A trial court shall grant a necessary to assist” Jones-Lee in obtain- only motion for continuance upon a show ing physical neurological evaluation and/or ing good only cause and long so as is evaluation to rule out medical issues. necessary. See v. Dep’t Smith Ark. However, Jones-Lee did not attach an affi- Human 93 Ark.App. Haroon, davit from Dr. stating what facts (2005). S.W.3d 705 The granting or denial true, prove she would required by be as aof motion for continuance within 16-63^02(a) §Ann. (Repl.2005). Ark.Code court, sound discretion of the trial and that court’s decision will not be reversed absent The circuit summarily court denied an abuse of discretion amounting to a deni Jones-Lee’s motion. At the beginning of Id When justice. al of deciding whether the termination hearing Jones-Lee assert- a continuance granted, should be the cir that Dr. ed Haroon had not been released cuit court should following consider the from her subpoena requested (1) movant; factors: the diligence of the keep court open pending record (2) probable effect testimony at doctor’s concerning Jones-Lee’s (3) trial; procuring likelihood of the mental state. The court made no at ruling witness’s post attendance in the event of that time. Later in the proceedings, the (4) ponement; and filing of an affida court the termination continued issue as to vit, stating what facts the witness Z.J.’s father attorney. because he had no prove, noted, but appellant also that got “we’ve still having Additionally, Dr. Haroon come the circuit court not err as did possibly
table put If I it off for Dr. anyway.... diligent because was not back *13 ninety testify, beyond First, we’re to Dr. seeking testimony. Haroon Haroon’s ninety days runs this Haroon, because days subpoenaed could have Dr. court stated that the con- month.”3 The so, to do thus waiting instead of for DHS Z.J.’s father would occur re- tinuance for giving her more control over her own wit- ruling on Jones-Lee’s re- gardless of its Second, upon |2r,learning ness. that Dr. hearing, At the end of the quest. town, Haroon would be out of request keep to the rec- court denied the Third, deposed have the doctor. could “time is of the essence open, stating, ord Jones-Lee did not attach an affidavit from got it. And |2.-,need we to do we’ve and Dr. Haroon to the motion for a continu- and don’t want to [I] time on the docket ance, what explaining evidence she would can’t just continue because one witness prove to be true. See Ark.Code Ann. come.” 16-63-402(a). Moreover, § Jones-Lee’s argues merely that the denial of that Dr. Haroon Jones-Lee now motion stated be- a continuance robbed her of special her motion for lieved that Jones-Lee needed ser- present vices; evidence of her opportunity not state that the rendering did “only state expert current mental services would enable those Jones-Lee to witness familiar with Jones-Lee and her parent a fit within a reasonable become That current mental status.” is not so. perspective. Sig- time from the children’s counselor concluded nificantly, ignores ready Jones-Lee would not be to be reu- concerning dearth of evidence her current nited with her children for six months. due, in part, mental status was no small directly While Dr. DeYoub could not testi- the fact that she not consistently did at- state, fy as to Jones-Lee’s current mental tend her sessions with Hemp- he that Jones-Lee have testified would hill nearly year she waited one very “a significant improve- have made request neurological evaluation. ment” in for her order children to be reu- Given that diligent Jones-Lee was not nited with her. securing testimony that she claimed Jones-Lee is correct that she not was crucial, given testimony permitted to have Dr. testify Haroon only testimony “denied” was not the re- a fit parent proper could become garding Jones-Lee’s current mental state However, training. through Upson, mother, or her current fitness as Jones-Lee was able to admit Dr. Haroon’s circuit court did not abuse discretion its opinion “if trained” Jones-Lee would when it denied Jones-Lee’s motion for a That, itself, be a “safe mother.” was addi- continuance. tional evidence of Jones-Lee’s current status, mental Affirmed. showing that she is not currently a “safe mother.” in some
respects, testimony Dr. Haroon’s would VAUGHT, C.J., GRUBER, PITTMAN, have Hemphill’s been cumulative to testi- JJ., HENRY, agree. mony, not have and would been the HART, GLADWIN, ROBBINS, concerning Jones-Lee’s current JJ., BAKER, mental state. dissent. pending ninety days requires Administrative Order Number 3 that have been more than quarterly report circuit courts to submit after cases submission.
HART, J., dissenting.
yet
she was
ready
to care for her
children and
require
approximately
The circuit court “shall conduct and
six months in therapy to be in a position to
Complete a termination of parental rights
care for her children. DHS also presented
(90)
ninety
days
within
from the
the testimony
|28DeYoub,
of Dr. Paul
petition
date the
paren-
termination of
forensic psychologist who evaluated Jones-
tal
is filed
good
unless continued for
time,
earlier,
Lee one
year
one
May
|g79
§
cause....”
Ark.Code Ann.
—27—
evaluation,
2007. At the time of the
Dr.
841(d) (Repl.2008). On
review a denial
*14
DeYoub felt that Jones-Lee was “too dis-
continuance,
of a
we consider whether the
turbed” for reunification. Dr. DeYoub de-
circuit court abused its discretion. Rhine
scribed Jones-Lee’s condition on the date
Dep’t
v. Ark.
Human
101 Ark.
of
that he examined her as
shape,
“terrible
870,
(2008). Here,
App.
On DHS argues that she subpoenaed noted that it had Dr. Haroon good showed cause for a continuance. On and was prepared complete April hearing she filed a motion for a without Dr. continuance, being present. Haroon The stating that her psychiatrist, court going concluded that “we’re Haroon, pro- Dr. Shamshad would be out of ceed and not arguing waste more time state on the date the hearing and unable thing.” the same to attend the termination hearing. 5, court denied the motion May Dr. Haroon present was not and did not 7,
During opening May statements at the testify. supervisor, Upson, Her Michael hearing, termination Jones-Lee’s Operation Chief Officer of Arkansas counsel noted that Dr. Haroon had been Healthcare, Behavioral brought subpoenaed but was out of Lee’s medical records. Upson had difficul- requested state. Counsel the court notes, ty reading Dr. Haroon’s but he did leave the open pending record Dr. Ha- testify 24, that Dr. April Haroon noted on testimony roon’s regarding Jones-Lee’s 2008, trained, that “I do believe if mental state. The court made no at ruling will be a At [sic] safe mother.” the conclu- that time. stated, hearing, sion of the the court During the hearing, presented DHS possibility I said there was a of Dr. testimony of Fritzie Hemphill, certainly Jones-Lee’s Haroon —I have made that de- outpatient cision, therapist, who testified but want didn’t to make ahead while Jones-Lee made progress, had some certainly, time and since that was a stability, her mental even regarding But I denied
request [Jones-Lee]. motion, time the es- because is of decision to terminate though court’s | we need to it. And sence parental rights focused on her mental- Mdo and don’t time on docket got we’ve sum, In stability. health Jones-Lee re- just because one wit- to continue want quested open that the record be held come. ness can’t hear Dr. Haroon’s on her men- state, essentially tal and the circuit court pa- Jones-Lee’s terminated The court good concluded that cause was not shown May an In order filed rights. rental beyond found that the children had the hearing for the extension of dependent-neglected and adjudicated ninety-day period. despite been But this custody of Jones- continued out had ruling, terminate court’s decision to despite months and that Lee for twelve parental rights was based on effort DHS to rehabilitate meaningful conclusion that had its not addressed correct the conditions caused her and her mental-health issues. *15 removal, not been the conditions had the The record that shows Jones-Lee was § by her. See Ark.Code Ann. 9-
remedied Haroon, psychiatrist, seen Dr. on 27-341(b)(3)(B)(i)(a). finding, In so the April just days before the termi- Jones-Lee had “made no court stated that hearing. Upson nation that Dr. testified eliminating or mitigating in progress that, training, Haroon wrote by addressing her con- of removal causes Lee would be a mother. Dr. safe Haroon’s health mental issues.” siderable post-hearing that affidavit also noted she thereafter filed a motion for easily given could have her kids back if reconsideration, asserting that the court contrast, proper support. pre- In DHS reopen the record to receive Dr. should DeYoub, who, testimony sented the of Dr. testimony stability on her Haroon’s earlier, having year seen Jones-Lee one compliance with medical and mental-health opine unáble to her was as to current to her treatment. attached state, Hemphill, therapist, mental an affidavit in which Dr. Haroon motion opined that capa- who Jones-Lee would be had been subpoenaed stated that she to in caring approxi- ble of for her children hearing; that she informed attend mately precluded six months. The court that attorney DHS’s she would be out of date; producing testimony Jones-Lee from that that she state on that told DHS’s attorney testify directly wanted to if would have most addressed the and asked appear by telephone; question she could her mental health —the testi- attorney told her she did not need DHS’s mony psychiatrist yet of Jones-Lee’s —and appear hearing to because the would be parental made its decision to terminate her continued; that she told attorney DHS’s rights on based mental-health issues. “easily that Jones-Lee could have her kids Also, despite the court’s desire conclude back, given proper support”; if ninety-day period the case before the that she was assured the date for the up, hearing nevertheless continued be circuit hearing would rescheduled. The the father of one of the children. Giv- court denied motion for reconsidera- this, en the court one must conclude that tion. by denying the re- abused its discretion open quest to hold the record for Dr. appeal, argues
On hi Rhine, testimony. supra request court Haroon’s See denied hold the rec- (holding to hear Dr. the circuit court abused its Haroon’s ordJj¡open
277 problems.” a continu- refusing grant Ark.App. 102 at discretion limit). beyond ninety-day ance S.W.3d at 640. The Prows court conclud ed given the instability in the child’s court apparent It the circuit life foster care and the circuit court’s emphasis terminating placed more law, incorrect statement of the the moth rights parental prior er’s recent mental stability could well af expiration ninety-day of the limit than on fect the court’s ultimate decision. panel relevant evidence. One recently court the bal this wrestled with Similarly, the circuit court case at speedy ance between resolution of termi bar, rather emphasizing ninety- than necessity nation and the of hear hearings day limit, have should likewise considered ing critical Prows v. Ark. evidence. See positive relevant evidence on Jones-Lee’s Dep’t Health and Human mental stability and determined whether (2008). Ark.App. 283 S.W.3d In her children be could returned her with- Proivs, the mother suffered from mental period Instead, reasonable of time. instability, though but even was not the circuit not only did not consider child, sole yet ready custody to have evidence, and weigh the it placed great it was that her mental state established weight on the limit ninety-day pre- recently improved. had circuit court cluded Jones-Lee from even presenting terminated the mother’s evidence, despite terminating her pa- instability because of her mental and her *16 rental based on mental-health is- remedy failure to that The cir condition. Moreover, sues. it cannot be said that her cuit court further stated that had to (the are currently children’s lives stable rights if terminate the mother’s together, children are not and two of the to immediately go the child was not able children in four different foster home with mother. the The Prows homes in than year). less one reversed, holding that the circuit court supports Prows the that conclusion the weighed have evi should considered and circuit court abused its discretion not improve mother’s dence about the recent holding open the record for taking the analyzing ments. In whether the error Dr. testimony Haroon’s on this critical is- harmless, was the court that there noted sue. statutory requirement was no the The majority concludes that Jones-Lee immediately child must be to return able was not diligent because she did not sub- the It statutory pro mother. cited the poena depose Dr. Haroon or her. This vision that intent of the termination not the for diligence, standard “provide permanency statute is to a majority such a authority pro- cites no for all juvenile’s life in in which the instances posed standard. This was no last-minute family juvenile return of a to the home is effort Dr. secure Ha- health, contrary juvenile’s safety, or testimony roon’s at hearing. DHS had appears welfare and it from the evidence Haroon, subpoenaed in fact Dr. and after a the family return to home cannot be laslearning Dr. Haroon would be out of accomplished period reasonable state, |a2juvenile’s sought a continuance time as viewed from the per days nine spective.” prior § for that Ark.Code Ann. 9-27- 341(a)(3). Moreover, It reason. Jones-Lee also asked statutory concluded that this trial, child, for a stability beginning continuance at the provision “seeks trial, trial, parent allowing during while time and after and the court reasonable (all considered) things fully material to correct was to hear Dr. apprised need currently a safe suggest her mental-health that she is not testimony on
Haroon’s assertion, however, diligence. obfus- Surely, this denotes mother. This issues. that denial was also notes that Dr. Haroon’s conclusion majority The cates fact file failed to an appellant could be a safe moth- proper because was Ar- her motion. The support The circuit court should have heard affidavit er. Court, however, stated Supreme testimony kansas to determine whether State, 362 Ark. v. within a reasonable time. Stenhouse would occur (2005), argu- that to raise this S.W.3d so that This case should be remanded State, ment, appellee, who was the may the circuit court hear Dr. Haroon’s that an the circuit court object before must then determine whether DHS, to file affidavit. failed appellant parental rights termination of is warrant- also did do so. appellee, was the who ed. Further, majority suggests that the because tes- error harmless BAKER, GLADWIN, ROBBINS, and require addi- tified that Jones-Lee JJ., join. ignores This the fact that therapy. tional only psychiatrist who is the Dr. Haroon Jones-Lee, psycholo-
treated DeYoub, nothing knew about her
gist, Dr. majority state. also
current mental harmless we that it was because
suggests notes, and those notes
have Dr. Haroon’s