Jordan Tolbert v. Arkansas Department of Human Services and Minor Child
CourtCourt of Appeals of Arkansas
Date FiledOctober 7, 2026
StatusPublished
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Full Opinion
Cite as 2026 Ark. App. 477
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-26-292
JORDAN TOLBERT Opinion Delivered October 7, 2026
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. 72JV-24-365]
ARKANSAS DEPARTMENT OF HONORABLE BETH STOREY BRYAN,
HUMAN SERVICES AND MINOR JUDGE
CHILD
APPELLEES AFFIRMED
CINDY GRACE THYER, Judge
Jordan Tolbert appeals from the order of the Washington County Circuit Court
terminating her parental rights to her daughter, Minor Child (MC). On appeal, Tolbert does
not challenge the statutory bases for the termination decision. Rather, she argues that the
circuit court erred in terminating her parental rights when she had not been offered
reasonable accommodations under the Americans with Disabilities Act; in addition, she
asserts that the court erred in not appointing her a guardian ad litem. We find no error and
affirm.
The Arkansas Department of Human Services (DHS) exercised a seventy-two-hour
hold on MC hours after her birth on May 31, 2024. A social worker at Willow Creek
Women’s Hospital contacted DHS on May 30 because Tolbert, who was scheduled to be
induced that day, was acting erratically. She had tested positive for cocaine on May 29 and
had had multiple positive tests for drugs during the course of her pregnancy. Tolbert also
left the hospital against medical advice after her water broke, although she returned to the
hospital later. DHS determined that a seventy-two-hour hold was necessary: MC did not have
a competent legal caretaker because Tolbert had been placed on a psychiatric hold in the
behavioral-health unit at Northwest Medical Center and Tolbert was suspected of using
drugs. DHS filed a petition for emergency custody and dependency-neglect on June 3, 2024,
and the court entered an ex parte order for emergency custody the same day. That order also
appointed counsel for Tolbert.
The court entered a probable-cause order on July 3 (following a hearing conducted
on June 4) finding that it was contrary to MC’s welfare to be returned to Tolbert’s custody.
The court cited multiple factors in support of its finding: Tolbert was under an involuntary
mental-health hold at the time of MC’s birth; she tested positive for cocaine at the time of
MC’s birth; cord-blood results showed that MC had been exposed to cocaine; and Tolbert
has a history of mental-health issues that had previously impeded her ability to parent.1
Adjudication hearings were held on August 7 and September 26; Tolbert was
represented by counsel at both. The court adjudicated MC dependent-neglected on the basis
of neglect and parental unfitness, citing Tolbert’s mental-health instability and illegal drug
use. The court set the goal of the case as reunification and granted Tolbert supervised
1
Another child was removed from Tolbert’s custody in 2019. That child was placed
in a guardianship with Tolbert’s parents.
2
visitation with MC once a week on the condition that she remain civil to the DHS staff
supervising the visits.
DHS and the attorney ad litem filed a joint motion to suspend supervised visitation
on December 11, 2024, arguing that Tolbert had “consistently demonstrated a pattern of
inappropriate behaviors” and was rude to DHS staff. In addition, the motion alleged that
Tolbert had “demonstrated unsafe parenting practices during visits, such as attempting to
feed the juvenile powdered formula without a bottle.” The court granted the motion the
same day, suspending visitation and all contact between Tolbert and MC until further order
of the court.
Following a January 15, 2025 review hearing, the court kept MC in DHS’s custody,
finding that Tolbert had not meaningfully engaged in reunification services, had not
maintained stable housing or employment, had recently been ordered to be involuntarily
committed to a mental-health institution for evaluation based on a finding that she was a
danger to herself or others, and had tested positive for cocaine on December 5, 2024. The
review order also cited testimony from the hearing, including that of Tolbert’s father, who
said that he had sought Tolbert’s involuntary commitment because she had posted videos
and posts online asking for jobs as an assassin and seeking someone to kill him. He further
testified that Tolbert had had mental-health issues for years and had hospital stays dating
back to when she was fourteen years old. The order also noted Tolbert’s testimony wherein
she had said she would like to go by the name “Katie” and that her father had murdered her
mother. The court concluded that Tolbert was not mentally stable and that visits between
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her and MC would be emotionally damaging to the child. After finding Tolbert
noncompliant with the case plan, the court continued the goal of the case as reunification.
A permanency-planning hearing was held in May 2025. In the ensuing order, the
court found that Tolbert was in minimal compliance with the case plan. The court
emphasized that it still had serious concerns about her mental health needs “and the
delusions that [she] still seems to have at this time.” The court found that Tolbert had not
maintained stable housing or employment, had not maintained consistent contact with
DHS, had not participated in individual counseling or followed the recommendations of her
psychological evaluation, and had not visited with MC since December when her visits had
been suspended. The court authorized a plan for adoption, with DHS filing a petition for
termination of parental rights.
DHS filed its petition on June 3, 2025. A termination hearing was scheduled for July
24, but Tolbert sought a continuance due to a recent change in parent counsel. The court
reset the hearing for August 8, 2025. The court continued the case again at the August 8
setting. On August 29, 2025, the court dismissed the petition because it was unable to
schedule a termination hearing within the ninety days permitted by Arkansas Code
Annotated section 9-35-325(d) (Supp. 2025) (formerly codified at Ark. Code Ann. § 9-27-
341(d) (Repl. 2020)). DHS filed a second petition for termination of parental rights on
August 29. As grounds for termination, DHS cited twelve months failure to remedy,
subsequent other factors, and aggravated circumstances.
4
The termination hearing was held on December 5, 2025. Because Tolbert does not
challenge the sufficiency of the evidence supporting the statutory grounds for termination
or the circuit court’s best-interest determination, we summarize the facts presented by the
witnesses at the hearing.
Before testimony began, Tolbert requested a Slovak translator, claiming that she
spoke only broken English and that it was difficult for her to understand what was being
said. She said that English is her “fifth language.” The court declined to appoint a translator,
saying it had understood throughout the case that English was Tolbert’s primary language.
Patricia Tabb, Tolbert’s mental-health therapist, described Tolbert’s apparent
struggles to complete her telehealth sessions and said that Tolbert needed to be in residential
treatment or in a hospital. She noted, however, that Tolbert did not appear to be open to
treatment and had told Tabb that she was not taking any medication. Tabb eventually
discontinued her sessions with Tolbert because she was combative and noncompliant. It was
her opinion that Tolbert needed intensive inpatient treatment.
Tolbert testified that she was living in an apartment in Fayetteville on which her
parents had cosigned the lease. She called her parents, Whitney and James Tolbert, “the
foster placement” and described them as her “old roommates”; she also denied that they are
her parents. She said she was seeing a psychiatrist who told her the only medication that
might help her was Adderall for her ADHD; she also claimed that she did not need
psychiatric-management treatment through medication. She described her current
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psychiatric treatment and other medical issues but denied that she is mentally ill, saying she
has PTSD and physical disabilities such as high blood pressure and anemia.
Tolbert claimed that MC was taken into foster care because she was raped on the way
to the hospital and could not figure out a way to tell the hospital. She denied that MC had
tested positive for cocaine when she was born and said she had never used cocaine. She
acknowledged having been involuntarily committed to psychiatric care at the time of MC’s
birth, saying she had not been making sense to the doctor. She denied any substance abuse
and said that her only mental-health diagnoses were PTSD, ADHD, and autism-spectrum
disorder. She agreed that she had been involuntarily committed in December 2024 and said
that after being released from that hold, she was homeless from February through June 2025.
Tobert said that since her last stint in inpatient treatment, she had seen two or three different
therapists. She quit seeing the first one because she diagnosed her with autism-spectrum
disorder. Other than seeing those therapists, she managed her mental-health needs with
meditation, exercise therapy, and Pilates.
On cross-examination, Tolbert claimed to have gone to over one hundred hours of
meetings at her church that were equivalent to AA/NA meetings, despite her assertion that
she never did drugs. When counsel asked whether Tolbert understood why they were in
court, she said “not since . . . our first court date.” She recalled, however, that the first court
date had been over a year ago, and she said she was still working on the same goal as before,
which was to get her kids back. She again claimed that ADHD and PTSD were “all [her]
mental illnesses.”
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At the conclusion of Tolbert’s testimony, her attorney argued to the circuit court that
she did not think Tolbert had demonstrated a full understanding of what was happening.
Accordingly, counsel stated, “[A]nd so I would ask for a . . . continuance in order that my
client be able to get appropriate treatment longer term than whatever she received last time
when she was involuntarily committed by the court. And then once she gets that treatment
and can fully understand what this process is and what is even happening here today, then
continue the hearing at that time.”
DHS’s counsel responded that the case had been going on for a year and half and
said it was “pretty clear today that this is another delay tactic.” The court asked whether DHS
had any sort of requirement or obligation to “restore fitness, for lack of a better word.” DHS
acknowledged that it was required to provide reasonable efforts but added that the agency
had referred Tolbert to therapists throughout the case and that Tolbert had been hesitant
and reluctant to participate in therapy. Counsel said she believed “that this is a situation that
cannot just be remedied by the Department.” Throughout the duration of the case, the court
had consistently found that DHS had made reasonable efforts, yet Tolbert had been
unwilling to admit that she had mental-health issues and had been unwilling to participate
in the treatment that DHS had arranged for her. DHS therefore objected to continuing the
case.
The ad litem suggested that what Tolbert’s counsel was raising was a question of
fitness to proceed, and if that were the case, the appropriate thing would be for parent
counsel to move for the appointment of a guardian ad litem for her client or to seek some
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other type of hearing to determine her capacity. That had not happened either with current
counsel or Tolbert’s previously appointed counsel, despite “having had numerous
opportunities for her counsel to seek that information.” The ad litem suggested that none
of Tolbert’s testimony had specifically indicated that she was unable or unfit to proceed;
however, if the court were to make a finding that Tolbert was unfit to proceed, the ad litem
asked the court to appoint a guardian ad litem.
The court agreed with the attorney ad litem that, considering her testimony, Tolbert
was fit to proceed and had an understanding of the purpose of the hearing. Parent counsel
disagreed, saying Tolbert was “not fully cognizant of why we’re here.” Counsel pointed out
that she had just been appointed for the termination hearing and stated, “I have not been
here throughout the pendency of this case, and that was actually going to be my next request
was to not only have DHS see to it that she gets inpatient treatment that she obviously
requires. And––but that also she is appointed a guardian ad litem.” The court denied the
request.
The court then resumed taking testimony. Peyton Lee, the foster-care worker on the
case for much of 2025, said that Tolbert had completed a psychological evaluation, which
recommended that she undergo counseling, get clean, and obtain psychiatric help and
medication. Tolbert followed some of the recommendations, but she did not consistently
engage in individual counseling. When Lee asked her about her counseling, Tolbert was
“very cagey, very dodgy,” and would become combative when Lee pressed her on the matter.
It was Lee’s understanding that Tolbert had been diagnosed with bipolar disorder and
8
schizophrenia. She said that Tolbert had been prescribed an antipsychotic medication, and
although she occasionally saw Tolbert with a pill bottle, she was unsure whether she was
actually taking the medication. She knew that when Tolbert was discharged from an
inpatient treatment, the recommendation was that she continue with outpatient treatment
and take her medication, but it was unclear whether she actually followed through. Lee also
offered testimony about the services that had been offered to Tolbert, including parenting
classes and a drug-and-alcohol assessment. She said, however, that even if Tolbert had
complied and done all the things asked of her, DHS was still concerned that she might not
be a fit parent because of her mental-health issues.
Alicia Crihfield, the current caseworker, testified that MC was placed with her
maternal grandparents, Whitney and James Tolbert, where she was thriving. She said that if
Tolbert’s parental rights were terminated, it was very likely that MC would be adopted, either
by her current placement or “somebody else as well that’s a family friend.” Crihfield
explained that the root issues throughout the case had been Tolbert’s mental health, her
participation in services, and her ability to demonstrate that she can be an adequate caregiver
for MC. She said that MC came into care in part because her cord blood tested positive for
cocaine and in part because Tolbert was homeless and had mental-health needs. Crihfield
opined that Tolbert had not remedied those issues. She noted that Tolbert tested positive
for cocaine in June and had not been participating in services for her mental health; as a
result, DHS could not say that she could adequately take care of MC. She added, “[U]ntil
her mental health’s addressed where we feel that she’s safe to be around, we can’t start family
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time.” Crihfield testified that there were no other services DHS could provide and nothing
they could do for her mental health, which was “the biggest concern at the moment.” DHS
could recommend help from medical professionals, but it could not have her committed.
Crihfield said DHS recommended that the goal of the case be adoption and that Tolbert’s
parental rights be terminated.
Tolbert’s parents both testified at the hearing as well. James Tolbert explained that
Tolbert began demonstrating antisocial behaviors when she was a child and had first been
hospitalized for depression at the age of fourteen. She had seen therapists and psychiatrists
who prescribed medications and treatments, but she was noncompliant with those attempted
remedies and had continued to decline over the last ten years. According to James, Tolbert
had been diagnosed with schizophrenia, bipolar disorder, and manic episodes, and there had
“been some conversations” about her having dissociative-identity disorder. He described how
her condition had worsened as she became less compliant with taking her medication and
how she now seemed to “stay more in that state of hallucinations, delusions.” He was
concerned first and foremost with MC’s safety should she be returned to Tolbert. He added
that MC needed the best chance at a productive life, and he did not “think she would have
that opportunity if returned” to her mother.
Whitney Tolbert testified that Tolbert had had problems from a very young age, and
they had gotten much worse over the past ten years or so. Whitney explained that Tolbert
had been diagnosed with anxiety, depression, various types of mood disorder, bipolar
disorder, and possibly borderline personality disorder. Interactions with her daughter were
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usually confrontational and rarely positive. The longest period of time Tolbert had been
consistently stable was a stretch of about seven or eight months in 2019 to 2020, when
Whitney made sure she was taking her antipsychotic medication. Since 2020, she had not
been consistently compliant with any sort of treatment. Whitney expressed concern that
Tolbert could not take care of herself, and if MC were returned to her, MC would not be
taken care of at all. She was unsure if Tolbert would even know who MC was if she were
returned to her.
At the conclusion of the hearing, the court found that Tolbert had not remedied the
conditions that caused removal; specifically, she had not maintained her mental-health
treatment to an extent that would allow her to be stable enough to take custody of MC. The
court concluded that it was unlikely that continuing services from DHS would help her,
given that she refused mental-health treatment and medication and denied she had mental
illness. In short, the court found that termination of Tolbert’s parental rights was in MC’s
best interest.
A written order terminating Tolbert’s parental rights was entered on January 5, 2026.
The court found first that Tolbert was fit to proceed with the hearing, noting that she
understood and answered the questions asked of her. Regarding grounds, the court found
that DHS proved that MC had remained out of custody for more than twelve months and
that Tolbert had not remedied the conditions that caused removal “because Mother has not
maintained her mental health treatment and it is obvious that she still suffers from mental
illness today.” The court also found that other subsequent factors existed, including Tolbert’s
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involuntary commitment during the course of the case and her ongoing denial that she
suffered from mental illness. Finally, the court found that DHS had proved the existence of
aggravated circumstances, noting that DHS had offered appropriate family services
throughout the case, but Tolbert’s inability to take her mental-health needs seriously clearly
demonstrated that there was little likelihood that services to the family would result in
successful reunification.
As to MC’s best interest, the court cited the testimony that an adoptive home had
already been identified for MC and found that MC is highly adoptable. Potential harm, the
court wrote, was evidenced in Tolbert’s failure to maintain her mental-health treatment to
the extent that she could safely care for MC. Accordingly, the court terminated Tolbert’s
parental rights. Tolbert filed a timely notice of appeal on January 6, 2026.
A circuit court’s order terminating parental rights must be based on findings proved
by clear and convincing evidence. Ark. Code Ann. § 9-35-325(b)(3). Clear and convincing
evidence is defined as that degree of proof that will produce in the fact-finder a firm
conviction as to the allegation sought to be established. Posey v. Ark. Dep’t of Health & Hum.
Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews
termination-of-parental-rights cases de novo but will not reverse the circuit court’s ruling
unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, 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 determining whether a
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finding is clearly erroneous, an appellate court gives due deference to the opportunity of the
circuit court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a circuit court must find by clear and convincing
evidence that termination is in the best interest of the juvenile, taking into consideration (1)
the likelihood that the juvenile will be adopted if the termination petition is granted; and
(2) the potential harm, specifically addressing the effect on the health and safety of the child,
caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-35-
325(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing
of clear and convincing evidence as to one or more of the grounds for termination listed in
section 9-35-325(b)(3)(B). However, only one ground must be proved to support termination.
Reid v. Ark. Dep’t of Hum. Servs., 2011 Ark. 187, 380 S.W.3d 918.
Tolbert does not challenge the statutory grounds for termination or the circuit court’s
best-interest determination. As such, she has abandoned any challenge to the sufficiency of
the evidence supporting termination on appeal. See Heath v. Ark. Dep’t of Hum. Servs., 2019
Ark. App. 255, 576 S.W.3d 86; Isbell v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 110, 573
S.W.3d 19. Instead, her first argument on appeal is that the circuit court erred in failing to
ensure that she received reasonable accommodations under the Americans with Disabilities
Act (ADA).
Arkansas Code Annotated section 9-35-325(b)(3)(B)(vii)(b) requires DHS to “make
reasonable accommodations in accordance with the Americans with Disabilities Act of 1990
. . . to parents with disabilities in order to allow them meaningful access to reunification and
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family preservation services.” Tolbert contends that there was ample evidence throughout
the case that demonstrated her disability, which is defined in the ADA as “[a] physical or
mental impairment that substantially limits one or more major life activities of [an]
individual.” 42 U.S.C. § 12102(a)(A). As such, she asserts that the court erred in failing to
ensure that DHS provided her with the required “reasonable accommodations.”
Tolbert’s argument, however, is not preserved for appeal because she never raised or
established that she was entitled to ADA protection below, nor did the circuit court make
any ruling on that argument. See Isbell, supra; Gilmore v. Ark. Dep’t of Hum. Servs., 2010 Ark.
App. 614, at 9, 379 S.W.3d 501, 506. Tolbert nonetheless argues that because the matter
touches on her due-process rights, the issue falls within the third exception to the
contemporaneous-objection requirement set forth in Wicks v. State, 270 Ark. 781, 606
S.W.2d 366 (1980).2 This court, however, has consistently held that it will not apply the
third Wicks exception to reach an unpreserved argument regarding reasonable
accommodations under the ADA in a termination case. Pratt v. Ark. Dep’t of Hum. Servs.,
2012 Ark. App. 399, at 13–14, 413 S.W.3d 261, 267–68; see also Copp v. Ark. Dep’t of Hum.
Servs., 2023 Ark. App. 491, at 26–27, 679 S.W.3d 380, 397; Snider v. Ark. Dep’t of Hum. Servs.,
2020 Ark. App. 502, at 7, 612 S.W.3d 199, 204; Weathers v. Ark. Dep’t of Hum. Servs., 2014
Ark. App. 142, at 11, 433 S.W.3d 271, 277.
2
The third Wicks exception relates to the circuit court’s duty to intervene, even
without an objection, to correct a serious error. This exception is rarely applied. See Strickland
v. State, 2010 Ark. App. 599, 378 S.W.3d 157.
14
In her second point on appeal, Tolbert asserts that in light of her significant mental-
health issues, the circuit court had a duty to appoint a guardian ad litem for her early in the
case so that her due-process rights would be adequately safeguarded.3 We find no merit to
her argument. This court has held that there is no error in failing to appoint a guardian ad
litem when a mentally ill parent is already represented by counsel. See Owen v. Ark. Dep’t of
Hum. Servs., 2019 Ark. App. 413, at 7–8, 587 S.W.3d 586, 589–90; see also Hamm v. Off. of
Child Support Enf’t, 336 Ark. 391, 395, 985 S.W.2d 742, 744 (1999) (noting that a court shall
appoint a guardian ad litem for an infant or incompetent person not otherwise represented in
an action) (emphasis in original). As such, we cannot say that the circuit court erred in
declining to appoint Tolbert a guardian ad litem.
Affirmed.
GLADWIN and MURPHY, JJ., agree.
Lindsey D. Tosh, for appellant.
Ellen K. Howard, Ark. Dep’t of Human Services Office of Chief Counsel, for appellee.
Linda J. Hamilton, attorney ad litem for minor child.
3
As noted above, Tolbert’s counsel did not ask for the appointment of a guardian ad
litem until partway through the termination hearing.
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