Cynthia Diane Stone et al. v. Arkansas Department of Human Services

ca01-954

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

CYNTHIA DIANE STONE, CHRISTOPHER ALLEN SCHIWART, HEATHER NICOLE SCHIWART, CHARLES ROBERT DOSSEY, JR., STEPHANIE REENA STOUT

APPELLANTS

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA 01-954

MARCH 20, 2002

APPEAL FROM THE MILLER COUNTY CHANCERY COURT, JUVENILE DIVISION

[NO. J-98-158]

HONORABLE JAMES SCOTT HUDSON, JR., CHANCERY JUDGE

AFFIRMED

The Miller County Chancery Court terminated the parental rights of the appellant, Cynthia Schiwart, on June 6, 2001. On appeal, appellant claims that the chancellor clearly erred in terminating her parental rights. Arkansas Department of Human Services (ADHS) responds that clear and convincing evidence supports the trial court's decision. We affirm.

On May 18, 1998, the Miller County Chancery Court entered an Order for Emergency Custody finding probable cause that appellant's minor children were dependent-neglected and that immediate removal was necessary to protect the health and well-being of H.S., born July 12, 1996, and S.S. born August 18, 1994. On May 20, 1998, an order was entered finding the children dependent-neglected. The basis of the removal of the children fromappellant's home was that Chris Schiwart, appellant's husband, had hit four-year-old S.S. in the face. Appellant and Schiwart were later divorced in 1998, and appellant married Keith Stone in December 1999.

In chancery cases we review the case de novo, but we do not reverse findings of the chancellor unless they are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). In reviewing a chancery court's findings, we give due deference to the court's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000).

Appellant's parental rights were terminated pursuant to Arkansas Code Annotated § 9-27-341(b)(3) (Repl. 2002), which provides:

(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

(A) That it is in the best interest of the juvenile, including consideration of the following factors:

(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and

(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or

putative parent or parents;

(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.

ADHS had to prove by clear and convincing evidence that: (1) termination was in the child's best interest; (2) the child had been adjudicated dependant-neglected; (3) the child had been out of the home for twelve months; (4) ADHS made a meaningful effort to rehabilitate the home and correct the conditions that caused removal; and (5) those conditions have not been remedied by appellant.

Appellant does not dispute that the children were adjudicated dependent-neglected and remained out of the home for more than twelve months. Appellant argues that she did everything ADHS asked her to do, and therefore, her children should be returned to her custody. We acknowledge that appellant attended counseling, went to all but one of her scheduled visits, and divorced Chris Schiwart, who gave S.S. a black eye. Appellant has had several opportunities to demonstrate to ADHS and the trial court that she can care for and protect her children. In December 1998, appellant began unsupervised visitation of her children. This continued through March 1999, at which time the unsupervised visitations were stopped because appellant violated the court's order, which prohibited S.S. from having contact with Chris Schiwart. The unsupervised visits were again initiated, and in July 1999, they were again stopped, this time because appellant violated a court order, which prohibitedthe children from having contact with appellant's father. The children were returned to appellant in September 2000. However, due to domestic violence in appellant's home, the children were removed in November 2000.

ADHS has provided intensive family services, parenting classes, drug screens, supervised and unsupervised visits, psychological evaluations, individual and family counseling, SCAN services, and other services that they felt appellant and whoever was in the home at the time would need in order to remedy the situation. Unfortunately, even with all of these services, appellant has been unable to remedy the conditions that caused removal of her children.

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, 8 S.W.3d 499 (2000). The termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Dinkins v. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). However, the Arkansas Supreme Court recognized in J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997), that parental rights should not be allowed to continue to the detriment of the child's welfare and best interest.

The purpose of the termination-of-parental-rights statutes is set forth in Ark. Code Ann. § 9-27-341(a)(3) (Supp. 1999), which provides as follows:

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 areturn to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective.

The statute does not allow parents an unlimited amount of time in which to correct their situation. The statute plainly states that once the children have been out of the home for twelve months and the parents have not remedied the conditions which caused removal, termination of parental rights is appropriate. Ark. Code Ann. § 9-27-341. Appellant has had approximately three years to remedy the conditions which caused removal, and she has failed to do so.

Once appellant divorced Chris Schiwart, who was abusive, she married Keith Stone, to whom she is currently married, and who is also violent. Appellant has simply exchanged one violent relationship for another. Appellant continues to make excuses for the abuse and violence that occurs in her home. Appellant testified about her current situation as follows:

I don't think anyone has accused me of being physically violent to my children, and I understand the concern with my history of allowing the children back in my care with abusive people. I recognize a pattern of abuse that has occurred in my life. I haven't divorced Keith in order to minimize or get ride of that negative impact. Keith is a violent person sometimes. It's not in the best interest of my children to be placed in a home where there is a violent person.

Clearly, appellant recognizes that it is not in the best interest of her children to place them in her current home situation.

Appellant's caseworker, Dorothy Jackson, testified that appellant had not demonstrated that the children would be safe in her home. Jackson stated that the children were afraid of Stone. She believed that the children were encouraged to be secretive and notreport abuses or violence that occurred. S.S. reported to her that Stone yelled at her and her sister and that he pulled appellant's hair. As late as November 2000, appellant called the police and reported that Stone had thrown scissors at her. Appellant also reported to the police that Stone was using drugs and had threatened to kill her if she called the police.

Dr. Sharon Howard, an expert in child psychology, testified at the hearing regarding her therapy sessions with the children. Howard testified that S.S. stated that she did not feel safe in her mother's home. S.S. disclosed to Howard that Stone's yelling made her sister cry. She also disclosed that Stone pulled her mother's hair when they would fought. S.S. stated to Howard that Stone made holes in the wall when he got mad. Howard expressed concern about appellant's ability to protect her children given the fact that she continued to choose abusive partners and disrregarded the violence in the home.

Despite the full array of services provided to appellant, she has failed to make adequate improvements in her home life. Although appellant has attended all of the programs offered to her by ADHS, she has been unable to implement what she has been taught in these classes. Appellant is currently married to and living with a man that she admits can be violent, yet she continues to stay. Appellant states in her own testimony that it would not be in her children's best interest to be around a person who is violent. Appellant has utilized ADHS's resources without making sufficient improvements to satisfy the statutory requirement that she remedy the conditions which caused removal of her children.

In Moore v. Arkansas Department of Human Services, 69 Ark. App. 1, 9 S.W.3d 531 (2000), a mother failed to provide a home and to demonstrate the ability to adequately parenther children after receiving reasonable, rehabilitative services for over three years. In that case, we could not say that the chancellor clearly erred in finding that ADHS presented clear and convincing evidence to support the termination of the mother's parental rights. This court gives a high degree of deference to the chancellor, who is in a far superior position to observe the parties before him. Dinkins, supra. Given our deferential standard of review, we cannot say that we are left with a definite and firm conviction that a mistake has been made. After reviewing the evidence in this case, the chancellor concluded that there was clear and convincing evidence to support an order terminating appellant's parental rights. We cannot say that his decision was clearly erroneous.

Affirmed.

Pittman and Neal, JJ., agree.