Jennifer French v. Arkansas Department of Human Services

ca04-736

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JENNIFER FRENCH,

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES,

APPELLEE

CA04-736

JUNE 22, 2005

APPEAL FROM THE VAN BUREN CIRCUIT COURT,

NO. JV03-28,

HON. LINDA P. COLLIER, JUDGE

AFFIRMED

Sam Bird, Judge

Jennifer French appeals a March 30, 2004, order of the Van Buren County Circuit Court that terminated her parental rights with regard to J.E. Jr., the second of her three children. French raises three points on appeal: (1) that the Department of Human Services failed to prove facts warranting termination by clear and convincing evidence; (2) that the Department of Human Services failed to show, and the court did not find, that continuing contact would be harmful; (3) that she was denied due process during the proceedings before the trial court. Finding no merit to these points, we affirm the circuit court's order of termination.

FINS Adjudication

On March 7, 2003, the prosecutor filed a Family in Need of Services (FINS) petition based upon an affidavit by Kathy Kirby, French's mother. In the affidavit Kirby stated her

belief that French's four-month-old son, J.E. Jr., was in need of the circuit court's assistance for the following reasons:

[T]he DHS Hotline has been called several times because [of] the lack of care that Jennifer is providing to the baby. Recently, I am aware of the baby being left in a locked room to sleep with dog [feces] in the room on the floor. On visits I have made to the home it has been rarely clean, the baby is not being bathed unless on visits with me, he has had terrible diaper rash that gets better after I've had him but then is back at the next visit, Jennifer was not taking him to the Doctor for medical care until I threatened to call DHS, the baby has a medical condition that must be treated and I believe that Jennifer is not giving him his medication or burping him.

At a hearing on March 26, 2003, the circuit court was informed of Kirby's additional statement that J.E. Sr., although named on the birth certificate as the child's father, was probably not the father; and that Ray Jennings was believed to be the father. French testified that she was living with her boyfriend in a twenty-six foot trailer and had been working for a month and a half as an exotic dancer. The court noted that it had been dealing with French and Kirby and their family for about five years, and that French had a long-standing mental health diagnosis as "bi-polar and probably borderline personalities."

The court adjudicated the case to be a FINS matter. The court ordered paternity tests, counseling for French, and random drug testing of French and Kirby. French was ordered to take all medications as prescribed. J.E. Jr. was placed into temporary custody with Kirby, and French was allowed supervised visitation. Kirby informed DHS on April 1, 2003, however, that she could no longer care for J.E. Jr.; DHS then exercised a seventy-two-hour hold on him.

FINS Review Hearings

At the FINS review hearing of April 2, 2003, French testified that she was twenty-one years old and the mother of two children. She testified that in 1998 she herself was in foster care and was married to the father of her firstborn, who was "taken away" by the court to live with her paternal grandparents. French testified that she was incarcerated for two weeks, was transported to Bridgeway for an evaluation, and was divorced from her husband in February of 1999. She testified that she married her second husband in July of 2000 but had not seen him except for one weekend after August of 2000. She testified that the father of J.E. Jr. was Raymond Jennings, whom she had never married and who currently was imprisoned in Florida.

French denied the allegations in her mother's affidavit. French said that her son had acid reflux but that she gave him his medications. She said that she lived with her sister, whose little puppy occasionally had "an accident." She said that her boyfriend, J.E. Sr., had stayed with them for about a week and had been in prison for "something to do with methamphetamines." French testified that she had last used marijuana on March 25, 2003, the day before the previous court proceeding. She testified that, because her mother had done nothing but cause trouble after the birth of J.E. Jr., she had tried to bluff her mother with a "suicide attempt" despite "no intent to actually do it."

French testified that she had been with J.E. Sr. since May 18 of the previous year, that she had maintained her relationship with him, and that they were planning to get married as soon as she could serve her husband with divorce papers. She admitted making bad decisions regarding marriage and said that she had not married J.E. Jr.'s father. She said that J.E. Sr. had a drug conviction but, unlike the others, had shown that he did not "want to keep the same cycle" and had told her to quit using marijuana. She said that she tried methamphetamine once with J.E. Jr.'s father but did not like it, that she was willing to stop all marijuana, and that her son meant more to her "than any of that."

French said that in 1998 she had postpartum depression and went to a hospital, that she was diagnosed with depression and anxiety disorder by Charter, that she did not know her diagnosis at Bridgeway, and that her current diagnosis at Behavior Health was depression and anxiety disorder. She said that she had been prescribed medications to relieve her mind so that she could sleep and to calm her down in the event of an anxiety attack. She said that she had worked the night before the hearing to get the money for her anxiety medication. She told the court that she was in a position to take care of her child, that she knew his medical condition well enough to take care of him, and that she currently had enough babysitting and housecleaning jobs to take care of him.

Kathy Kirby testified at the hearing, reiterating her allegations in the FINS affidavit but clarifying that the baby had not actually been locked in the room. Kirby also said that J.E. Jr. threw up for a good month before French ever took him to the doctor with his reflux problem, that French's sister called every day to tell Kirby that French would not feed or bathe him, that French and the baby's room was always a wreck, and that J.E. Jr. was filthy and everything was dirty each time that French brought the baby to Kirby, even with medicine that had leaked all over the bag. Kirby said that French and her boyfriend fought constantly, screaming and hollering, with the baby right between them.

Ashley Kirkendoll, French's sister and Kirby's daughter, testified regarding the time that the sisters lived together. Kirkendoll stated that she had a puppy that once had an accident in the baby's room, that she never saw French stressed out more than "normal," that French's boyfriend stayed overnight sometimes but didn't live there, and that there was never any indication that French was not an appropriate parent. Kirkendoll testified that her mother would be lying to say that Kirkendoll had called to say that Jennifer wasn't feeding the baby and taking care of him.

At the conclusion of the hearing, the court ordered a psychological evaluation of French, ordered DHS to review her home and persons living there, and stated that it would allow J.E. Jr. to be returned to her if things looked safe between then and the next month's scheduled hearing. The court also ordered DHS to develop an appropriate case plan for the child and family.

At the second FINS review hearing, conducted on May 7, 2003, the court was informed that J.E. Sr. was currently living with French, that he had failed random drug tests for THC, and that French reported that he had recently entered the hospital after a suicide attempt. French testified that J.E. Sr. was bi-polar and was in the hospital because he had not been on any medicine, that she wanted to marry him, but that she had been unable to serve divorce papers upon the husband who "took off" a month after marriage and whom she had not seen in nearly three years. French told the court that she was working four hours a day at Kentucky Fried Chicken.

Lorna Beach testified at the second FINS review hearing that, after the previous hearing, French had consistently passed recent drug screenings but J.E. Sr. had refused to be screened. Beach further testified:

The Department has not seen a negative drug screening on him.... Though [French] would like for him to be a parent and involved, he shows a lot of reluctance. I don't think he really likes her involvement.

The home situation, we find it small. It's a little trailer. There's not much room for a baby to crawl. That's probably not the biggest concern we have; it's more stability and the issue with the drugs, and his mental illness. And, also, the psychological evaluation that the Court has ordered, we have that scheduled for next week.

Terri Mosley, a social service aide, testified that she had taken French to visit J.E. Jr. five times after he had come into DHS care. Mosley testified that J.E. Sr. came on the first visit but within fifteen minutes became so agitated that he "just burst out of the visit," saying that he couldn't take it. Mosley further stated that he did not return and that French kept asking her to go get him. Mosley further reported that J.E. Sr. told French on the trip home that he thought it might be better if he dropped out of the case so that she could focus on getting the baby back, but that French responded, "No, I want a relationship with you." At the conclusion of the hearing, French informed the court that she was pregnant with J.E.Sr.'s child.

Dependency/Neglect

On July 16, 2003, a dependency/neglect hearing took place. The court commented that French was pregnant and inquired whether she was still using drugs. French replied, "I haven't used in a while. About two weeks ago." She told the court that she would be "dirty" if tested but had started NA classes. A videotape, introduced into evidence by DHS, documented a high speed police chase some two weeks earlier involving French and J.E. Sr. The court converted the case from FINS to dependency/neglect. French was ordered to be free of illegal drugs and to obtain safe, suitable housing. At a review hearing on October 29, 2003, reunification services were discontinued and the goal of the case was changed to termination of parental rights and adoption.

Termination Hearing

At the termination of parental rights hearing on February 27, 2004, clinical psychologist Paul Deyoub, Ph.D., testified that he performed psychological evaluations of French in November of 1998 and in May of 2003. He testified that in 1998 he forecast lifelong instability, a pattern of promiscuity, and unstable relationships. He said that French's borderline personality disorder, depression, anxiety, instability, and drug use affected her ability to take care of children. He stated, "I thought she was not able to care for children, and I think the pattern was the same at twenty-one as it was at sixteen."

Dr. Deyoub reported that French had low scores on the Parent-Child-Relationship Inventory in the second evaluation. He further testified:

My conclusion based upon the tests that I had administered to Ms. French and based upon my interview with her and her responses, was that she was worse than when I saw her at 16. That she had had a marriage, a boyfriend, a pregnancy, and then she was living with another boyfriend at the time I saw her who was on parole. That she had lived all over the place and never lived independently, had problems with vocation and job. ... And I indicated she had deeply-ingrained maladjusted character patterns and I did not think she could parent [J.E. Jr.].

. . . .

I don't see her even in the near future as being able to adequately parent the child. ... So what I'm saying is that the quality of who she is and the quality of her parenting, her instability, is going to be a poor environment for the child and the child is at risk.

Dr. Deyoub concluded that as of May 27, 2003, French's prognosis was no better than it had been five years earlier, and that her test results indicated more of the same for the next five years. He stated, "I would support a termination of parental rights in this case on this child."

French testified at the termination hearing that J.E. Sr., whom she referred to as the father of her children, was in prison. She explained that she had put his name on J.E. Jr.'s birth certificate although he was not really the father. She testified that she had told him that she did not want to be with him if he stayed the same way, but that he was in counseling, and that she might give him a second chance if he could do better. She said that once, before J.E. Jr. was taken from her custody, J.E. Sr. and three other people used methamphetamine in the home when they were supposed to be watching the baby while she was at work. She testified that she had last visited J.E. Sr. when he came to court the previous month, just telling him how the pregnancy was going and other little things. She said that she had not answered a letter from him two weeks earlier because she had been dealing with things.

French further testified that her new baby, Justice E., was almost three months old. French explained, "I picked the name `Justice' because, to be quite honest, I've never felt that I've been given justice by anybody. I never really had a fair chance and she's kinda my justice." French said that she had started a housekeeping business, that she had quite a few clients, and that sometimes she could be at home with Justice while French's mother could do the housecleaning. French said that she had passed her drug tests and had lived in her three-bedroom home for seven months, and that she was to start a job as an executive assistant the following Monday.

French said that things were pretty chaotic between J.E. Sr. and her when they lived together and that marijuana use with him was ongoing. She testified that she tried to be "clean" but slipped sometimes, such as on Mother's Day in her last pregnancy when she thought about "her loss" and soothed herself by smoking. She said that J.E. Sr. would not work and that she worked as a stripper when she was living with him in order to take care of her son. She said that she thought he might be able to be a good husband if given the right resources.

French testified regarding the incident during her pregnancy when J.E. Sr. had been drinking, he drove her car against her wishes, and a seven-mile police chase ensued. She explained that when he followed police orders to get out of the car and lie on the ground, she lay on top of him to keep him from running or getting shot. She subsequently pleaded guilty to disorderly conduct. She testified that she stopped living with J.E. Sr. after his arrest in the incident, that her life had been unstable until she no longer lived with him, and that she currently was more stable. She stated:

I still want to see if this man changes. ... I don't think he's done anything that's really been good for me and my children. ... If nothing else, I, at least, want him to get the help so he can be a decent father.

Order of Termination

Ruling from the bench in the termination hearing, the court made the following observations and findings:

I have to say that Dr. Deyoub got it right. Jennifer has a personality disorder and a borderline personality. ... [F]rom the past seven years that I've known Jennifer, I cannot see a complete character and personality change occurring in six months' time. I just can't see it. ... [W]hat worries me and what has come up over and over and over is ... [J.E. Sr.] has been gone for the past six months, so it hasn't been hardto make progress. ... It hasn't been hard to stay stable because that factor of [J.E. Sr.] has been out of the picture. And, yet, the insight to him being the problem and him -and his very relationship with [French] and [her] relationship with him as being a problem for children has never been addressed by anybody. And every time [French has] been in here over the last seven years, it's had to do with babies, it had to do with men....

I've got to-I've got to make a ruling in what's best for J.E. Jr. and I'm going to have to terminate. And, in doing so, I'm going to have to say that, Jennifer, you've got- you've got to get some insight. ...[Y]ou've got to get some insight into the kind of people that you form relationships with because they drag you down. ... I have seen progress, but it worries me that this progress has been made when the man that put you on that merry-go-round is in jail. And we don't know when he's going to get out, but, apparently, you're waiting for him and I don't like that idea. I don't like it at all.

The order of termination of parental rights, filed on March 30, 2004, sets forth the court's finding that DHS had proven the following by clear and convincing evidence:

there is little likelihood that services will result in successful reunification within 12 months;

that subsequent to the filing of the original petition the issue of the mother engaging in a pattern of harmful relationships with drug users arose and despite the offer of appropriate family services the mother has manifested the indifference to remedy that issue;

that the harmful relationship with J.E. Sr. has placed the juvenile at substantial risk of harm;

that adoption is in the juvenile's best interests;

that J.E. Sr., has not been a direct danger to the child in the past 6 months due to his incarceration; and

that the mother is unfit with respect to the child.

Additionally, the court found that DHS had made reasonable efforts to unify the family throughout the matter.

Discussion of Points on Appeal

1. Clear and convincing evidence

Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2003) requires that an order terminating parental rights 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; and

(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 custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.

. . . .

(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent 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 indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent return of the juvenile to the custody of the parent.

French challenges the trial court's finding that she was an unfit parent regarding J.E. Jr. French proposes that her youngest child, Justice, was not removed from her custody because by the time of her birth French had corrected the conditions that caused removal. She notes that DHS gave up on offering services by the eighth month that J.E. Jr. was out of the home, that a case manager testified that French had corrected the conditions that had led to removal, and that a case worker testified favorably concerning French's meeting the requirements for stable housing and employment, random drug screens, and regular counseling. French's argument, however, ignores several findings upon which the trial court based the order terminating parental rights.

As previously noted, the termination order with regard to J.E. Jr. was based in part on the finding of little likelihood that services would result in successful reunification within twelve months. The trial court also found that the issue of French's engaging in a pattern of harmful relationships with drug users arose subsequent to the filing of the original petition and, despite the offer of appropriate family services, French manifested indifference to remedy the issue. Further, the court found that the harmful relationship with J.E. Sr. placed the juvenile at substantial risk of harm, and that the absence of direct danger from J.E. Sr. for six months preceding the hearing was due only to his incarceration.

An order terminating parental rights must be based upon findings by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2003). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). It is well settled that when the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Id. In making this determination, we review the case de novo, but we give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. 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.

It is apparent in the trial court's findings from the bench that the court gave little weight to French's progress during J.E. Sr.'s incarceration but assigned great weight to Dr. Deyoub's assessment. Dr. Deyoub stated that French had an instability in her life and had unstable relationships, that she had not improved in five years, and that the next five years would be no better. French testified that she hoped to marry J.E. Sr. and hoped that he could be a decent father. French and others testified to the drug use and instability in her life during the time she and J.E. Sr. were in a relationship, which included the months preceding the removal of J.E. Jr. from her care and which ended with J.E. Sr.'s arrest. We hold that the trial court did not clearly err in making the findings that were the basis of its order terminating the parental rights of French with regard to her child J.E. Jr.

2. Continuing contact

An order terminating parental rights shall be based upon a finding by clear and convincing evidence that it is in the child's best interests, "including consideration of ... [t]he 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[.]" Ark. Code Ann. § 9-27-241(b)(3)(A)(ii) (Supp. 2003) (emphasis added). French contends that the court's order of termination was based on speculation about what might happen upon J.E. Sr.'s release from prison. She complains that DHS failed to show, and the court did not find, that continuing contact between French and J.E. Jr. would be harmful. She presents no authority or convincing argument, however, that such a showing or finding is required; therefore, we need not address this point on appeal. See Todd v. Ark. Dep't of Human Servs., 85 Ark. App. 174, 151 S.W.3d 315 (2004). Additionally, we note that the trial court had before it extensive testimony on the relationship between French and J.E. Sr. creating a problem for the child.

3. Due process during the proceedings before the trial court

Attorney Richard W. Atkinson was appointed to represent French after the FINS adjudication at which J.E. Jr. was removed from her custody. On April 2, 2003, Rita Atkinson stood in for him in representing French. On April 29, 2003, the trial court granted the motion of Rita B. Atkinson and/or Richard W. Atkinson to withdraw as French's counsel. On May 7, 2003, when French told the court that she did not know who her lawyer was, the court appointed Mel Jackson, who told the court that he was "standing in for the child, on Mr. Blagg's behalf," to represent French. On January 28, 2004, David Hogue appeared in court and asked that he be substituted for Jackson as French's counsel. Hogue subsequently represented French at the termination hearing, and he has filed the appeal that is now before us.

French contends that she was not afforded the "fundamentally fair procedures" required by Santosk v. Kramer, 455 U.S. 745, 753 (1982), which states in part:

[P]ersons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

French complains that no written motion or notice was filed giving her an opportunity to be heard regarding reunification services, nor was she afforded an attorney familiar enough to object to this or any other inadequacy in the proceedings.

In Rodriquez v. Dep't of Human Servs., ___ Ark ___ , ___ S.W.3d___ (Dec. 16, 2004), the appellant contended that she was deprived of due process of law by DHS's failure to specify in the case plan what actions she needed to take to achieve reunification with her children. Our supreme court rejected her claim, stating in part:

[T]he record before us does not reflect an objection to the lack of a filed case plan. Furthermore, Mary has cited no case law in support of her due process claim. Assignments of error unsupported by convincing argument or authority will not be considered on appeal, unless it is apparent without further research that the point is well taken.

Id. at ___, ___S.W.3d at ___. Similarly, here, French points to no objection below, nor does she present convincing argument or authority on appeal, that her due process rights were violated. Thus, we will not consider this point on appeal.

Affirmed.

Hart and Crabtree, JJ., agree.