Hope Lynch v. Arkansas Department of Human Services

ca01-407

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

HOPE LYNCH

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA01-407

OCTOBER 24, 2001

APPEAL FROM THE BENTON COUNTY CHANCERY COURT

[NO. DJ98-504]

HONORABLE JAY T. FINCH CHANCELLOR

AFFIRMED

Appellant, Hope Elizabeth Lynch, appeals the decision of the Benton County Chancery Court terminating her parental rights as to her child, F. L. Appellant presents two points on appeal. First, appellant argues that the judge erred in finding clear and convincing evidence to terminate her parental rights. Second, appellant argues that the judge erred in not allowing her to present testimony at the permanency-planning hearing in violation of her due-process rights. We affirm.

On November 30, 1998, appellee, Arkansas Department of Human Services ("ADHS"), filed a petition seeking emergency custody of F. L., born January 27, 1998, due to a domestic disturbance at the child's home. On December 7, 1998, an order was entered stating that there was probable cause necessitating removal of the child from appellant's custody. Evidence showed that appellant had stabbed Jimmy Wahl, the child's father, that she had made threats to harm herself and the child, and that she had no recollection of what happened. Reba Grauper, the family service worker, testified that there was no food or baby formula in the home. On January 5, 1999, the court adjudicated the case as "Family In Need of Services" and continued custody of the child with

ADHS. The chancellor ordered appellant to obtain a psychological evaluation. On April 6, 1999, the court ordered that return of the child to the custody of the parents was contrary to the welfare of the child. The court further ordered appellant and the child's father to maintain a suitable home, and appellant was to follow the counseling recommendation of her psychological evaluation. Parenting classes were also to be provided in the home.

On August 3, 1999, custody was returned to appellant and the child's father for a trial placement. Appellant and the child's father were to continue to be employed, continue to have an appropriate home, and were not to smoke in the home with the child. Appellant was also to continue her counseling. On January 31, 2000, ADHS filed another petition seeking emergency custody of the child. Evidence showed that quarter-size second-degree burns were found on the child's peritoneum. Neither appellant or the child's father provided a reasonable explanation for the burns. On February 23, 2000, an order was entered stating that there was probable cause that emergency conditions necessitated the removal of the child from appellant and the child's father. Liberal, supervised visitation was authorized. On February 24, 2000, a case plan was prepared stating that appellant would take all medications, and both parents would demonstrate self control and appropriate parenting skills, assure the child's financial needs were met, maintain a safe home, and obtain employment. An adjudication order was entered on April 26, 2000, finding the child dependent-neglected. The requirements for appellant and the child's father were also reiterated. A hearing was held on June 13, 2000, and evidence was presented that appellant had not maintained stable employment or housing; she was not taking her medication as prescribed; she was not attending counseling; and she had missed the last two visitations.

At the permanency-planning hearing on October 10, 2000, appellant's counsel requested theopportunity to examine appellant on the stand in order to show the steps appellant had taken to meet the case plan. Appellant's counsel admitted that this testimony from appellant would be the same testimony that would be presented at a termination hearing. The court did not allow the testimony. Following the hearing, the goal of the case was changed to adoption rather than reunification, and appellant was ordered to pay child support.

At the termination hearing on December 5, 2000, Melanie Chambers, a family service worker, testified that the child had been out of appellant's care for a total of seventeen months and eighteen days. She stated that appellant had not maintained stable employment; she had not followed through with her counseling; she had completed less than five parenting classes; and other than two pieces of clothing, appellant had not provided support for the child. Evidence showed that ADHS was relieved of services after appellant moved to Oklahoma in March 2000. Sharee Ramsey, a family service worker, testified that appellant's visits with the child in the beginning were regular but became less frequent over time.

Appellant testified that she supported her child by putting money in the bank rather than giving the money directly to the caregiver; that she did not take her medication due to the side effects; that she did not attend counseling after she moved to Oklahoma because she did not need the service; and that she did not continue to attend parenting classes. Appellant testified that before moving to Oklahoma, she visited the child twice. Prior to moving to Oklahoma, appellant had lived in three or four different places; after moving to Oklahoma, she had lived in two places. Appellant also admitted that she had a problem controlling her temper. As a result of this hearing, an order was entered on December 18, 2000, terminating appellant's parental rights.1 This appeal followed.

When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the question that must be answered on appeal is whether the chancery court's finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Dinkins v. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). We give due regard to the trial court's opportunity to judge the credibility of the witnesses. Id. Cases such as this are reviewed de novo on appeal. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. (citing Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996)).

Appellant first argues that there was insufficient evidence to terminate her parental rights. Arkansas Code Annotated section 9-27-341 (Supp. 1999), provides the grounds for termination of parental rights. Section (b)(3) states:

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

(i)(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 to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.

(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve

(12) months, and the parent has wilfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile.

(ii)(b) To find willful failure to maintain meaningful contact, it must be shown that the parent was not prevented from visiting or having contact with the juvenile by the juvenile's custodian or any other person, taking into consideration the distance of the juvenile's placement from the parent's home.

(vii)(a) That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or the indifference to remedy the subsequent issues or factors to rehabilitate the parent's circumstances which prevent return of the juvenile to the family home.

Our supreme court has held that when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Baker v. Arkansas Dep't of Human Servs., 340 Ark. 42, 12 S.W.3d 201 (2000) (citing 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 is in derogation of the natural rights of the parents. Id. (citing Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999)). The supreme court recognized, in Baker, that the best interest of the child is the primary consideration in these cases and that parental rights should not be allowed to continue to the detriment of the child's welfare and best interest. Id.

The purpose of the parental rights termination statutes is found in Ark. Code Ann. ยง 9-27-341(a)(3). It states that:

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 return to the family home cannot be accomplished in a reasonable period of time.

Here, appellant argues that the evidence was insufficient to terminate her parental rights in three respects. First, ADHS was relieved of its duty to provide services to appellant on June 13, 2000. Second, the court erred when it did not consider the distance between appellant and her child for purposes of visitation. Third, appellant did not willfully fail to provide support to her child because she provided clothing and a home for the child. However, appellant failed to make any attempt to obtain services after moving to Oklahoma, she failed to maintain sufficient visitations with the child, and she failed to provide support for the child. In sum, appellant's total lack of compliance with the case plan was precisely the situation the statute was designed to remedy.

Appellant was residing in Benton County, Arkansas, when the case was initiated in 1998 andwhen the child was returned to foster care in January 2000. She chose to move to Oklahoma in March 2000, and stated that her reason for moving was to "get away from all the pressure and everything and to make a better life for [herself]." Although ADHS did not offer services after the move, appellant's visitation rights remained intact. She was not prevented from visiting the child at any point; however, her visits with the child became less and less frequent over time. Appellant also failed to provide support for the child. She claims that she met her requirement of support by providing gifts and clothing; however, evidence showed that appellant had given the child gifts on only two occasions since the case began in 1998. Further, appellant testified that she was putting money back in a savings account for her child instead of paying support, indicating that she was able, but unwilling, to comply with the case plan.

Appellant's second argument is that the judge erred in not allowing her to present testimony at the permanency-planning hearing in violation of appellant's due-process rights. Appellant argues that she should have been given the opportunity to present evidence of her changed conditions at the permanency-planning hearing, even though the same testimony was presented at the termination hearing. Appellee contends that appellant has not preserved this issue for appeal. We agree. Appellant did not raise the issue of due process before the chancery court. Failure to raise the constitutional challenge below is fatal to our consideration at this level. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). We have held that even constitutional issues will not be considered when raised for the first time on appeal. Id. Therefore, we do not consider appellant's due-process argument.

Our review of the record establishes that the chancellor's decision to terminate appellant's parental rights was not clearly erroneous.

Affirmed.

Robbins and Roaf, JJ., agree.

1 The child's father consented to the adoption of his daughter.