M.T. v. Arkansas Dep't of Human Servs.

M.T. v. ARKANSAS DEPARTMENT OF HUMAN SERVICES

CA 96-949                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
              Opinion delivered September 17, 1997


1.   Parent & child -- grounds for termination of parental rights
     must be proven by clear and convincing evidence -- clearly
     erroneous standard used on appellate review. -- Grounds for
     termination of parental rights must be proven by clear and
     convincing evidence; when the burden of proving a disputed
     fact in chancery is by clear and convincing evidence, the
     question on appeal is whether the chancellor's finding that
     the disputed fact was proved by clear and convincing evidence
     is clearly erroneous, giving due regard to the opportunity of
     the trial court to judge the credibility of witnesses.

2.   Parent & child -- termination of parental rights is extreme
     remedy -- when parental rights will not be enforced. --
     Termination of parental rights is an extreme remedy and in
     derogation of the natural rights of the parents, but parental
     rights will not be enforced to the detriment or destruction of
     the health and well-being of the child.  

3.   Parent & child -- trial judge's personal observations given
     great weight in matters involving welfare of children --
     chancellor's determination to terminate parental rights not
     clearly erroneous. -- In matters involving the welfare of
     young children, the appellate court gives great weight to the
     trial judge's personal observations; where the chancellor
     credited the testimony of a SCAN worker and discredited the
     testimony of appellant, pointing to her false assertions that
     the child was not fathered by her husband, and noted that
     appellant had shown little interest in her child until the
     petition to terminate her parental rights was filed, the
     appellate court, upon reviewing the evidence and giving due
     deference to the chancellor's determination of credibility,
     determined that his decision to terminate appellant's parental
     rights was not clearly erroneous.  

4.   Actions -- plaintiff asserts cause of action against another -
     - right to dismiss action rests with plaintiff. -- A plaintiff
     is a party who asserts a cause of action against another, and
     the right to dismiss an action rests only with the plaintiff.

5.   Parties -- appellant lacked standing -- appellant had no right
     to appeal trial court's refusal to allow petitioner to
     withdraw its cause of action. -- Under Arkansas Code Annotated
      9-27-341(a) (Supp. 1995), termination of parental rights is
     a remedy available only to the Department of Human Services
     and not to private litigants; therefore, the right of
     dismissal accrued to DHS as the petitioner, and not to
     appellant as a parent; appellant was not the proper party to
     appeal the trial court's refusal to allow the petitioner to
     withdraw its cause of action; the court of appeals refused to
     consider any alleged error in the trial court's ruling on this
     issue because appellant had no standing to raise it.

6.   Parent & child -- trial court's termination of parental rights
     made pursuant to statutory authority -- no error found. --  
     The chancellor did not err in ordering termination of
     appellant's parental rights where it was clear that such
     termination was based upon the authority of Arkansas Code
     Annotated section 9-27-341 (Supp. 1995); termination of
     appellant's parental rights was pursued because a return of
     the child to her home would have been contrary to the child's
     health, safety, or welfare and because it appeared that the
     return could not be accomplished within a reasonable period of
     time.   


     Appeal from Pulaski Chancery Court, Eighth Division; Wiley A.
Branton, Jr., Chancellor; affirmed.
     Anne Orsi Smith, for appellant.
     Stephen B. Whiting, for appellee Arkansas Department of Human
Services.
     Louis "Whit" Light, for appellee J.L.
     Kathleen Bailey O'Connor, Guardian Ad Litem for the minor
child.
     John F. Stroud, Jr., Judge.
     In June 1995 the Arkansas Department of Human Services filed
a petition to terminate the parental rights of M.T. in her
biological son, J.L., Jr.  The case came before the chancellor in
December 1995.  At the beginning of the hearing DHS made an oral
motion to withdraw its petition, stating that it wanted instead an
adjudication of paternity and placement of the child with the
natural father.  The guardian ad litem responded that the maternal
parental rights should be terminated.  The natural father,
intervenor in this action, stated that he also wanted M.T.þs
parental rights terminated but that he would be willing to permit
visitation at some point in the future.  He asked that the court
determine him to be the father of the child.  
     The chancellor denied the motion of DHS to withdraw the
petition, proceeded with the hearing, and granted the petition to
terminate M.T.þs parental rights.  He ordered legal custody of the
child to continue with DHS and placement of the child with the
biological father until such time as the paternity action could be
adjudicated.  
     M.T. now appeals, raising three points.  She contends that the
chancellor erred by not allowing DHS to withdraw its petition, that
termination of parental rights was not necessary to clear the child
for permanent placement, and that the trial court erred in finding
clear and convincing evidence supporting termination of appellantþs
parental rights.  We affirm, addressing the last point first.  
     Grounds for termination of parental rights must be proven by
clear and convincing evidence.  Ark. Code Ann.  9-27-341(b) (Supp.
1995).  When the burden of proving a disputed fact in chancery is
by þclear and convincingþ evidence, the question on appeal is
whether the chancellorþs finding that the disputed fact was proved
by clear and convincing evidence is clearly erroneous, giving due
regard to the opportunity of the trial court to judge the
credibility of witnesses.  Beeson v. Arkansas Depþt of Human
Servs., 37 Ark. App. 12, 823 S.W.2d 912 (1992).  Termination of
parental rights is an extreme remedy and in derogation of the
natural rights of the parents, but parental rights will not be
enforced to the detriment or destruction of the health and well-
being of the child.  Corley v. Arkansas Depþt of Human Servs., 46
Ark. App. 265, 878 S.W.2d 430 (1994).  
     Here, appellantþs seven-week-old son had skull fractures when
he was brought to Arkansas Childrenþs Hospital in November 1993. 
Appellant said that he had been dropped by her boyfriend the night
before while she was at work.  SCAN filed a petition for emergency
custody of the child, and he was released from the hospital to a
foster home.  At an adjudication hearing the next month, he was
found to be a dependent neglected child.  He was placed in foster
care in the custody of the DHS and eventually placed in the home of
his maternal grandmother.  The boyfriend was ordered to have no
contact with the child.  After the first review hearing in March
1994, the child was returned to appellantþs custody.  A second
emergency custody motion was filed in June 1994 alleging medical
neglect of the child by appellant because of untreated and infected
blisters on his feet as well as failure to thrive.  The motion was
granted, and the child was returned to his grandmotherþs custody. 
The grandmother notified the court several weeks later that she was
not able to continue to keep the child in her home, and he was
placed in the custody of DHS.  
     SCAN noted that appellant was hostile and had failed to
cooperate with the caseworker.  Appellant visited her son only
sporadically and allowed the boyfriend to move back into her home. 
In September 1994 appellantþs therapist notified SCAN that
appellant no longer wished to receive services and that custody of
her son was not important enough to her for her to comply with
SCANþs requirements and the courtþs orders.  Appellant discontinued
visits with her son for several months, resumed them briefly, and
discontinued them again.  At the review hearing in April 1995 the
goal of the case was changed to allow DHS to pursue termination of
appellantþs parental rights rather than reunification with her
child.  In the summer of 1995 appellant resumed visits with the
child.  
     In matters involving the welfare of young children, the
appellate court gives great weight to the trial judgeþs personal
observations.  In re Adoption of K.F.H. and K.F.H., 311 Ark. 416,
844 S.W.2d 343 (1993).  Here, the chancellor credited the testimony
of the SCAN worker and discredited the testimony of appellant,
noting her false assertions that the child was not fathered by her
husband.  He noted that appellant had shown little interest in her
child until the petition to terminate her parental rights was
filed.  Our own review of the evidence, coupled with our deference
to the chancellor on the credibility of the witnesses, shows that
the decision to terminate appellantþs parental rights was not
clearly erroneous.  
     The next point we address, that the chancellor erred in
denying DHSþs oral motion to dismiss the petition, is a procedural
issue.  Under Rule 41 of the Arkansas Rules of Civil Procedure, an
action can be dismissed before final submission of a case without
prejudice to the plaintiff.  A plaintiff is a party who asserts a
cause of action against another, and the right to dismiss an action
rests only with the plaintiff.  See Walton v. Rucker, 193 Ark. 40,
97 S.W.2d 442 (1936).  
     Under Arkansas Code Annotated section 9-27-341(a) (Supp.
1995), termination of parental rights is a remedy available only to
the Department of Human Services and not to private litigants.
Therefore, the right of dismissal accrues to DHS as the petitioner,
and not to a parent.  Though a parent has the right to appeal the
termination of parental rights, she is not the proper party to
appeal the trial courtþs refusal to allow the petitioner to
withdraw its cause of action.  DHS has not appealed the denial of
its motion to withdraw.  We will not consider any alleged error in
the trial courtþs ruling on this issue because appellant has no
standing to raise it.  
     The final point we consider is whether the chancellor erred in
ordering termination of appellant's parental rights "when
termination was not necessary to clear the child for permanent
placement."  Arkansas Code Annotated section 9-27-341(a) (Supp.
1995) reads in part as follows:
     [This section] shall be used only in such cases when the
     Department of Human Services is attempting to clear a
     juvenile for permanent placement.  The intent of this
     section is to provide permanency in a juvenile's life in
     all instances where return of a juvenile to the family
     home is contrary to the juvenile's health, safety, or
     welfare, and it appears from the evidence that return to
     the family home cannot be accomplished in a reasonable
     period of time.   

The statute does not require that termination of parental rights be
a predicate to permanent placement, but only that DHS be attempting
to clear the juvenile for permanent placement when parental rights
are terminated, which was the case here. 
     Though the disposition plan in this case had at one time been
to reunify appellant and the child, the court had ordered the plan
changed to terminate her parental rights.  At the conclusion of the
termination hearing, the court stated:
          [M.T. has] had a long period to try to do the things
     that would make her have a more significant relationship
     with this child.  Having a few visits. . . on the eve of
     the termination hearing, doesn't make it with the Court. 
     When you look at the total history of the case, that's
     not enough. . . .

          This child needs permanency.  Itþs the Courtþs
     opinion that it is in the best interest of this child to
     terminate the motherþs parental rights.  This child, I
     think, will do far better if he doesnþt have to have an
     occasional visit from someone who really has not brought
     much to the quality of his life.  I think the child would
     be much better off with [M.T.] out of his life.  
                           .  .  .  .

          She may show love and concern when she visits the
     child, but a child needs something more than a visit
     every now and then where you stop in and show some
     concern.  A child needs 24-hour parenting, 24-hour
     responsibility.  This child has been abused in this home,
     and I think itþs time to get the child on with his life
     and get him out of an abusive situation.  Hopefully,
     heþll be into something thatþs much better and that will
     not cause this child injury.  

     Clearly, the courtþs determination to terminate appellantþs
parental rights was made pursuant to the authority of Arkansas Code
Annotated section 9-27-341.  Termination of appellant's parental
rights was pursued because a return of the child to her home would
have been contrary to the childþs health, safety, or welfare and
because it appeared that the return could not be accomplished
within a reasonable period of time.     
     Affirmed.  
     Robbins, C.J., and Bird, J., agree.