Hines v. Ark. Dep't of Human Servs.

2014 Ark. App. 515

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-343

Opinion Delivered October 1, 2014

VIRTLE NENETTE HINES APPEAL FROM THE ST. FRANCIS
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-11-224]
V.
HONORABLE ANN B. HUDSON,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILDREN AFFIRMED
APPELLEES

BRANDON J. HARRISON, Judge

Virtle Hines appeals the order of the St. Francis County Circuit Court that granted

permanent custody of three of her children to her parents, Alvirgil and Elton Hines. On

appeal, Hines asserts that the circuit court erred in finding that the children could not be

safely returned to her care and that it was not in the children’s best interest to be

permanently placed with their maternal grandparents. We affirm.

In December 2011, the Arkansas Department of Human Services (DHS) filed a

petition for emergency custody of Hines’s three children: A.J., born 9/28/09; S.J., born

5/31/07; and M.J., born 7/25/02.1 The attached affidavit explained that a protective-

service case was first opened on this family in November 2007 due to a true report of

1
Hines is not married to the children’s father, and it does not appear that he is involved in
their lives.
1
2014 Ark. App. 515

environmental neglect. At that time, Hines was threatening to kill herself, and the family

received mental-health services, transportation, and case-work counseling. The case was

closed in February 2009 because Hines complied with the case plan.

On 13 December 2011, Hines presented herself to the local DHS office and stated

that she could no longer care for her children. Hines reported that she was diagnosed with

schizophrenia at twenty-two and has received treatment, that her symptoms worsened

after the birth of two-year-old A.J., and that she hears voices telling her that the children

are not safe and that someone is going to murder them. Hines explained that “she looks at

cable a lot to drown out the voices, but the voices then start to talk to her directly

through the television, telling her ‘stupid stuff’ and saying ‘filthy things’ to her.” Hines

stated that “her family doesn’t visit or call, and it’s just her and the children, all day, every

day; and she can’t take the pressure.” Hines also admitted to being an alcoholic and to

whipping M.J. with an extension cord and “occasionally slapping” M.J. After an

assessment for treatment by Mid-South Health Systems, Hines was admitted to in-patient

treatment at Delta Medical in Memphis.

When the children were taken into custody, M.J. had “loop type” injuries to her

mid-torso and thighs consistent with being hit with a cord. A.J. had burn marks on his

thighs, which Hines said were accidentally caused by an iron, and a bruise around his right

eye. DHS asserted that Hines’s “fragile mental and emotional health” placed the children’s

safety and well-being at risk and asked that the children remain in DHS custody.

The court granted the order for emergency custody and, in March 2012,

adjudicated the children dependent-neglected. The goal of the case was reunification, and

2
2014 Ark. App. 515

Hines was ordered to continue mental-health treatment at Mid-South and take her

medications as prescribed. In April 2012, the court placed the children in the temporary

custody of Hines’s parents, Alvirgil and Elton Hines, and designated relative placement as

a concurrent goal of the case. The court ordered that visitation would be at the Hineses’

discretion but that Hines could not live in the home or have overnight visitation.

A review order entered in October 2012 reflects that Hines was taking her

medication and “appears to be doing better,” and in November 2012, the court found

that Hines had made “significant improvements” and was allowed extended visits with the

children. In April 2013, the court again noted improvement on Hines’s part and that it

wished to hear testimony from April Bailey, Hines’s counselor at Mid-South. After

hearing Bailey’s testimony, the court found that Hines was not sufficiently taking

advantage of her therapy and ordered that her counseling be increased “significantly.” The

court later ordered that Bailey and Mid-South provide the court and DHS with monthly

progress reports on Hines.

After several continuances, caused in part by Hines’s failure to appear at scheduled

hearings, a permanency-planning hearing was held over two days in December 2013 and

January 2014. Bailey testified that she had not seen Hines from September 5 to December

4 because Hines failed to schedule any appointments. Bailey testified that she worked with

Hines on awareness and coping skills. Bailey also testified that Hines contradicted herself

“a lot” and that she was still experiencing hallucinations and paranoia. Sherea Henry, the

DHS case worker, recommended permanent relative custody with the Hineses. Henry

opined that Hines “hasn’t made much progress with her mental health issues” and that

3
2014 Ark. App. 515

additional time would not correct the issue. Henry explained that Hines would do well at

times, and other times she would not. Henry also stated that Hines had not satisfied DHS

with regard to her attendance at counseling sessions and described some extended

visitations with the children that had to be cut short because “she [Hines] had pretty much

had all she could take.” Henry also explained that DHS was ordered to provide

transportation to Hines’s appointments with her therapist but that it was up to Hines to

call and schedule that transportation. Finally, Henry testified that Hines had a good

relationship with the children but that DHS was making the relative-placement

recommendation based on the children’s safety.

Hines told the court that she was currently in counseling and attends day treatment

three times a week at Mid-South. She admitted she had not seen Bailey as often as she was

supposed to because some days she did not want to talk, did not feel like leaving the

house, or had “other things to do.” She believed that she posed no danger to the children

and agreed that she needed to continue taking her medication. When asked if she could

continue to change for the better, she said, “I can’t say that I can but I can try.”

In a written order filed 7 February 2014, the court found that the children could

not return to the care of their mother, that they were doing well in the placement with

their grandmother, and that it was in the children’s best interest to remain in that

placement. The court granted permanent custody to Alvirgil and Elton Hines and closed

the case. Hines appealed.

The burden of proof in dependency-neglect proceedings, including reviews and

permanency-planning hearings, is preponderance of the evidence. Ark. Code Ann. § 9-

4
2014 Ark. App. 515

27-325(h)(2)(B) (Supp. 2011). The standard of review is de novo, but we will not reverse

unless the circuit court’s findings are clearly erroneous. Anderson v. Ark. Dep’t of Human

Servs., 2011 Ark. App. 522, 385 S.W.3d 367. A finding is clearly erroneous when,

although there is evidence to support it, the reviewing court is left with a definite and firm

conviction that a mistake has been made. Id.

Hines generally argues that the court erred in finding that the children could not be

safely returned to her and that the court’s finding was based on “fear” surrounding her

mental illness. Hines asserts that she has a home, a steady income (from disability), and was

showing no signs of hallucinations or hearing voices. She also contends that she was

“making an all-out effort on her own to improve her mental condition” and that DHS did

not assist her in transportation to her therapist as required by the case plan. She claims that

this is the “same case” as Grant v. Arkansas Department of Human Services, 2010 Ark. App.

636, 378 S.W.3d 227, in which this court reversed a termination of parental rights based

on a lack of evidence of adoptability. Hines also cites Benedict v. Arkansas Department of

Human Services, 96 Ark. App. 395, 242 S.W.3d 305 (2006), another termination-of-

parental-rights case, in which this court reversed on best-interest grounds. She concludes

that it was not in the children’s best interest to be placed with her mother “when there is

no supported evidence in the record that the appellant has ever placed her children in

harm’s way or done any actual harm to her children.”

In response, DHS first argues that Hines failed to raise any argument below that

DHS had not provided transportation services, nor did she appeal any of the court’s prior

findings that DHS had made reasonable efforts to provide services. DHS also says that the

5
2014 Ark. App. 515

evidence showed that the children could not be returned to Hines for the various reasons

the circuit court heard.

We agree that any argument regarding transportation services was not properly

preserved for this court’s review. More important, given the evidence presented and the

history of the case, we hold that the circuit court did not clearly err in granting custody of

the children to Hines’s parents for the reasons the circuit court discussed in its written

order. We therefore affirm the award of permanent custody.

Affirmed.

WYNNE and GLOVER, JJ., agree.

Wilson Law Firm, P.A., by: E. Dion Wilson, for appellants.

Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor

children.

6