Sharonna Hollister v. Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION IV

SHARONNA HOLLISTER

APPELLANT

V.

DEPARTMENT OF HUMAN

SERVICES

APPELLEE

CA 00-376

DECEMBER 20, 2000

APPEAL FROM THE PULASKI

COUNTY CHANCERY COURT

[NO. JJN98-120]

HONORABLE WILEY AUSTIN

BRANTON, JR., CHANCERY JUDGE

AFFIRMED

Appellant Sharonna Hollister's parental rights were terminated as to five of her children. The Pulaski County Chancery Court determined that the Department of Human Services had proved its contentions by clear and convincing evidence. Appellant contends that the findings supporting the chancellor's order terminating her parental rights were not based on clear and convincing evidence. We disagree with appellant and affirm.

The Arkansas Supreme Court has held that when the issue is termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents.

Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parentalrights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence.

In reviewing the trial court's evaluation of the evidence, we will not reverse unless the court's finding of clear and convincing evidence is clearly erroneous. Baker v. Arkansas Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. In resolving the clearly-erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Id. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the chancellor's personal observations. Id. After applying the proper standard of review to this case, we affirm.

The facts as developed before the chancery court are as follows. At the time that these proceedings commenced, appellant had five young children: Shalicia, born on March 18, 1992; Quincy, born on April 9, 1993; Eric, born on June 25, 1994; Sharice, born on January 13, 1996; and Bobby, born on February 2, 1997. The Department of Human Services (DHS) became involved when it became aware through a December 1997 report of allegations that five-year-old Shalicia was sexually abused by her father, appellant's husband, who had been jailed for the crime. The suspected sexual abuse of the child was thought to have occurred in October 1997, having been witnessed by the paternal grandmother. DHS filed a petition for dependency/neglect on January 21, 1998. Mr.Hollister posted bond in order to be freed while awaiting trial. When the petition was filed, appellant was subject to house arrest for failure to pay outstanding fines, and the children were residing with appellant's eighteen-year-old sister in an apartment in North Little Rock. The concern of DHS was that appellant would not protect the children from molestation since family members alleged, and Shalicia confirmed, that Mr. Hollister had contacted the children by telephone.

After a hearing to establish probable cause conducted on March 3, 1998, the chancery court issued an order on March 31, 1998, stating that the father was not to have any contact with the child by telephone or in person. Appellant was permitted to continue to have custody, provided that she not permit any contact between the children and Mr. Hollister. DHS was ordered to continue the protective-services case with weekly visits to the home.

An adjudication hearing was conducted on April 7 and on April 14, 1998, and the children were adjudicated dependent/neglected. Appellant failed to appear at this hearing, though she had been ordered to appear. Testimony at the hearings in April indicated that Mr. Hollister had contact with his children through appellant, despite warnings by the court specifically not to permit contact. Further, Mr. Hollister had admitted to the sexual abuse. Four of the children were taken into protective custody with the youngest daughter, Sharice, being placed in the physical custody of her maternal aunt, appellant's eighteen-year-old sister. Appellant was given supervised visitation and was ordered to undergo a psychological evaluation; the father was permitted no visitation, either in person or by phone. Neither parent was permitted to have contact with appellant's sister, who hadcustody of Sharice.

A review hearing was conducted on July 14, 1998, the result of which was that the children were deemed to still be in need of services and that returning them to their mother was not in their best interests. The mother had not attended counseling as ordered, was uncooperative, but had visited regularly. Additionally, she was pregnant with twins, the father of whom, Tyree Price, was at that time charged with murder. She was ordered to continue counseling.

The chancellor noted that the overriding problem facing appellant was her inability to make proper choices. The psychological evaluation, admitted into evidence at the July 14, 1998 review hearing, supported this conclusion. This evaluation indicated that appellant had no other diagnosis than depression and anxiety; she was determined to be within normal intellectual functioning. The psychological examination results stated:

[T]his is a matter of a person simply making the wrong choices with no excuses such as mental illness or mental defect. ... I do not oppose reunification if Ms. Hollister can establish an appropriate home and meet the needs of her children, as well as disavow any relationship with Mr. Hollister... I am concerned about her adequacy given her poor decision making, which continued even after the sexual abuse was discovered in October. ... She is an insecure person, who is dependent and enters relationships even when they are not in her or her children's best interest. Once she makes a serious effort and some improvement through therapy, and obtains a proper physical environment for the children, visitation should be able to increase with eventual reunification, contingent on supervision that she is not breaking the rules regarding Mr. Hollister.

Supervised visits continued thereafter, and appellant gave birth to twin girls on August 28, 1998, the children conceived in her relationship with Mr. Price. Sharice, the youngest of appellant's daughters, remained in the custody of her maternal aunt.

An emergency change of custody was filed on October 2, 1998, after DHS was informed that appellant moved, in contravention of prior court orders, into the home of her sister, the children's aunt who had been permitted physical custody of Sharice. The child was placed with DHS after that date with her sister Shalicia; the boys were together in a different foster care setting. The next review hearing continued with the same requirements and with a goal of reunification, adding the requirement that appellant maintain a job and home stability, that appellant continue with counseling, and that DHS provide transportation for appellant after 4:00 p.m., as reflected in an order filed on December 15, 1998.

A permanency placement planning hearing was conducted on May 18, 1999, and an order was entered on June 18, 1999, finding that DHS would be permitted to proceed toward termination. The chancery court found appellant not to be credible; to have not been cooperative with DHS over the course of more than one year; and to have made poor choices of persons permitted around the children.

This finding was predicated on the following evidence. One therapist testified that appellant attended only eight out of fifty therapy sessions in the last calendar year. Of those eight, only five were attended for the full one hour. The therapist was not optimistic about appellant's willingness to work on her own parental issues, and appellant's status was characterized as being in the beginning stage of therapy. There was additional testimony from DHS personnel that from January 1999 until the May 1999 hearing, appellant missed fourteen of her nineteen weekly Wednesday visits with her children.

When appellant was asked about where she had been living, she replied, "I movearound so much, I wouldn't remember that." Appellant stated that she was currently living with her sister, but before that she had lived with Mr. Hollister's mother, and she was about to move into her own apartment if she got her children back. With regard to her missing visitation and counseling, appellant blamed DHS for not picking her up at the right time. When asked about the paternity of each of her children, appellant stated that another man, Eric Adams, had fathered her son Eric, but like the other two fathers (Mr. Hollister and Mr. Price) he had been charged with a felony, so she no longer had anything to do with him. Appellant was still married to Mr. Hollister in May 1999, but according to appellant she did not associate with him. The order concluded by stating that, "The Court cannot envision a time when these children would be returned to their mother."

A petition to terminate appellant's parental rights was filed on July 22, 1999, the foundation of which was that the children had resided outside the parental home for more than one year, and the parents had failed to remedy the situation causing removal, despite meaningful effort on behalf of DHS. The hearing was conducted on October 22, 1999, approximately 1 ½ years after the children had been removed from appellant's custody. The order granting termination was filed on November 17, 1999. Appellant was then twenty-four years old.

Arkansas Code Annotated section 9-27-341(b)(2)(A) (Repl. 1998) provides:

[A]n order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

(2) Of one (1) or more of the following grounds:

(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and, despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent ....

Arkansas Code Annotated section 9-27-341(a)(3) (Supp. 1999) provides:

The intent of this section is to provide permanency in a juvenile's life in all instances where the 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 a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective.

While the rights of the natural parents are not to be passed over lightly, they must give way to the best interests of the children when clear and convincing evidence shows the natural parents are incapable of providing for the reasonable care for their children. Moore v. Arkansas Dep't of Human Servs., 69 Ark. App. 1, 9 S.W.3d 531 (2000).

Appellant does not contest that the children had been adjudicated dependent/neglected, that they had remained out of the home for more than twelve months, or that the termination was in their best interests. Appellant argues on appeal that there is not clear and convincing evidence (1) that DHS made a meaningful effort to rehabilitate the conditions that caused removal, or (2) that appellant had failed to remedy those conditions causing removal.

In appellant's case, DHS arranged for appellant to visit her children weekly, arranged for counseling, and provided transportation. DHS also provided clothing vouchers and took family members to doctors appointments. In contrast, though appellant did visit her children with diminishing regularity, she never attended counseling with regularity, she did notmaintain employment, and she moved so many times within this period of time that she could not recall all of her addresses. Though appellant blamed most of her missed appointments on DHS' failure to work with her employment schedules or DHS' failure to provide transportation after normal business hours, DHS' personnel directly conflicted that assertion in their testimonies. The chancellor did not find appellant credible. Appellant also stated that even though she missed many of her therapy appointments, she had not learned anything from them and she was only attending to comply with the court's orders. She held two or three short-term jobs during the time her children were gone, and she lived in about five different residences, most of them as a guest of the tenant or owner. This was in direct conflict with the chancery court's order to maintain suitable housing, stable employment, and to attend counseling. Appellant does not argue to this court what DHS could have done to better assist appellant, other than to complain about problems with transportation, which complaints were disbelieved.

As we understand the other portions of her argument, appellant asserts that while DHS should have continuing custody, the chancellor should have ordered that appellant have more time to prove that she could care for and nurture her children. The time within which a parent has to correct the reasons for the children's removal is not infinite; termination may proceed after the children have resided outside the parental home for at least twelve months. Ark. Code Ann. § 9-27-341 (Supp. 1999). The one-year mark is the legislature's determination of a fair amount of time within which to remedy the conditions causing removal. Thereafter, if the parent has not remedied those conditions, the chancellor cannotbe said to have acted too quickly, and we do not find clear error on this point.

We will not reverse a chancellor unless we are definitely and firmly convinced that a mistake has been committed. Adkinson v. Kilgore, 70 Ark. App. 215, 16 S.W.3d 560 (2000). We cannot say that the chancery court clearly erred in finding that DHS proved by clear and convincing evidence that appellant's parental rights should be terminated.

Affirmed.

Stroud and Roaf, JJ., agree.