Crystal Griffith v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CRYSTAL GRIFFITH

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-826

May 11, 2005

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. J-2002-191]

HON. MIKE MEDLOCK,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Crystal Griffith appeals the order of the Crawford County Circuit Court terminating her parental rights with respect to her two minor children. On appeal, appellant argues that appellee Arkansas Department of Human Services (DHS) failed to present sufficient evidence to support its petition for termination of parental rights based upon the clear and convincing evidence standard and that, accordingly, the circuit court's finding that appellant did not remedy the conditions that caused the removal of her children was clearly erroneous and contrary to the evidence presented. We affirm.

On July 29, 2002, DHS opened a protective services case on appellant's two daughters, aged three-and-a-half years and two years, based upon a report that the children had been left alone for three hours. At that time, appellant was separated from the children's father, Rickey Griffith, and was living with the children and her boyfriend, Bryan Linton. On September 11, 2002, a DHS caseworker went to the apartment for a weekly visit and found conditions deplorable enough to file a petition for emergency custody, which was granted pursuant to an order filed on September 16, 2002. On September 19, 2002, the circuit court found that DHS had probable cause to remove the children, and an order to that effect was filed on October 7, 2002. An adjudication hearing was held on October 10, 2002, at which time the circuit court found that the children were dependent-neglected and ordered custody of the children to remain with DHS.1 Subsequent review hearings were held on December 5, 2002, March 6, 2003, May 8, 2003, and June 26, 2003, and at each hearing the circuit court maintained custody as previously ordered.

At the May 8, 2003 review hearing, DHS requested a change in the goal of the permanency plan from reunification to termination of parental rights and adoption placement for the children. Appellant did not object to the request at that time. DHS filed a petition for termination of parental rights on May 29, 2003, to which appellant responded on July 1, 2003. A hearing on the petition was initially heard on October 9, 2003, and continued to a final hearing on March 25, 2004. Appellant's counsel moved for a directed verdict based upon a lack of evidence at the close of DHS's case and renewed the motion at the close of the evidence; both were denied. An order terminating the parental rights of both appellant and Rickey Griffith was entered on April 22, 2004, based upon findings that it was not in the children's best interest to return them to their parents' the children had been in DHS custody for a period in excess of twelve months, the conditions for the initial removal had not been remedied, and the parents' rights previously had been involuntarily terminated as to other children. Appellant timely filed a notice of appeal May 5, 2004; however, Rickey Griffith did not appeal the circuit court's order.

In cases involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Camarillo-Cox v. Ark. Dep't of Human Servs., __ Ark. __, __ S.W.3d __ (Jan. 20, 2005); Trout v. Ark. Dep't of Human Servs., __ Ark. __, __ S.W.3d ___ (Nov. 4, 2004). This is because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Thus, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Id.

Arkansas Code Annotated section 9-27-341(b)(3) requires that an order terminating parental rights be based upon clear and convincing evidence. See Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Id. 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 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.

Arkansas Code Annotated section 9-27-341 sets out the parameters by which a circuit court may consider a petition to terminate parental rights, if the court initially finds that there is an appropriate permanency placement plan for the juvenile in place. The statute requiresthat the order must be based on a finding that the termination of parental rights is in the best interest of the juvenile, which may include the consideration of (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) 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. In addition, the order must be based on one or more specific grounds, which include: (1) 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 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; (2) 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; (3) the parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to have had his or her parental rights involuntarily terminated as to a sibling of the child. Ark. Code Ann. § 9-27-341.

Appellant maintains that DHS failed to meet its burden of proof to show by clear and convincing evidence that the conditions causing the initial removal of her children had not been remedied. She contends that very little testimony in this case, particularly from the termination hearing, related to her progress in remedying those conditions. The only witnesses that DHS called in its case-in-chief were appellant; Rickey Griffith; Maureen Kestner, a therapist of one of the children; and Suzanne Stephens, an adoption specialist not currently assigned to the case. The caseworker who had been assigned to the case for the majority of the time did not testify, and the current caseworker, who had only been on the case for about three weeks, testified only during rebuttal.

Appellant states that her uncontroverted testimony was that she had completed parenting classes and that DHS presented no evidence that she failed to sufficiently benefit from those classes to the extent that her children could not be returned. Likewise, appellant testified that she had been offered homemaking services and that DHS failed to show that she had not benefitted from those efforts. Appellant argues that she maintained a steady residence for approximately one year with family members. She asserts that DHS failed to show that her housing was unsuitable, with the testifying caseworker admitting that she had not even been to the residence to review the conditions during the three weeks she had been assigned to the case.

Appellant further testified that she had recently been approved to receive Social Security payments and that she had a pending application to obtain housing of her own. She claims that DHS presented no testimony that her efforts in these areas were inadequate or that her resources would be insufficient to support the children. Finally, appellant testified that she regularly exercised her visitation and had missed only a few opportunities to visit her children, and she contends that DHS failed to present any evidence as to either the success or failure of those visits or whether she demonstrated appropriate parenting skills during those visits.

Appellant's two very young children were in foster care for over a year before her parental rights were terminated. During that time, DHS provided appellant with various services aimed at reunification of the family. DHS allowed appellant significant time to obtain suitable housing and demonstrate that she could properly keep and maintain that housing, and also required appellant to find suitable employment and prove that she could provide adequate income for both herself and the two children. While DHS admits that appellant regularly visited the children and did complete her parenting classes, she failed to complete those other stated requirements and, accordingly, failed to show that she was capable of caring for her children. See Wright v. Ark. Dep't of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003).

Although the initial caseworker did not testify at the termination hearing and the new caseworker had not been to appellant's current residence, it appears that the relevant DHS reports were part of the record and reviewed by the circuit court. Those reports show that when the case was initially opened, the caseworker found the children living in a filthy environment that included uncovered, old food throughout the apartment, an open trash container in the kitchen, flies throughout the home, an unclean child's training toilet, one child being kept in soiled diapers for such an extended time as to develop a rash, and the presence of lice. Upon a follow-up visit, the residence had not been cleaned by appellant, and the children were placed in foster care.

DHS maintains that appellant never obtained "suitable housing," moving from house to house and, after breaking up with Linton, living with various relatives. After the break-up with her boyfriend, appellant attempted to reconcile with Rickey Griffith, then lived with her sister, brother-in-law, and their two children, and finally with her brother. At one point during May 2003, DHS was unable to contact appellant, who had moved to Fort Smith, Arkansas, to live with her sister, but had failed to inform the appropriate caseworkers. As of the initial October 9, 2003 termination hearing, appellant testified that she had not taken appropriate steps to secure her own housing. She explained that she was attempting to get re-approved for subsidized housing but was having difficulty because she had been unable to pay thirty-one dollars related to a prior disconnection of her utilities. At the continued March 25, 2004 termination hearing, appellant stated that she had been living with her brother since December 2003, but claimed that she was moving out the following week and attempting to find a two-bedroom apartment. DHS asserts that without some sort of a lease agreement, living with relatives does not suffice as stable housing and that appellant's failure to secure stable and appropriate housing supports the termination of her rights. See Flores v. Ark. Dep't of Human Servs., __ Ark. __, __ S.W.3d __ (Oct. 7, 2004). Appellant was given over fifteen months to find a suitable place to live with her young children. She failed to meet that requirement and was unable to demonstrate whether there had been any improvement in her abilities to keep a clean, sanitary home.

Additionally, appellant's parental rights had been terminated with respect to her first two children, primarily because of unsanitary conditions, and subsequently she lost custody of the two children in this case for similar reasons. DHS claims that appellant's history and the repetition of those past problems show that she failed to remedy the conditions that caused the initial removal of the children. As before, appellant was unable to maintain her own home and had failed to obtain employment to provide adequate income for food, medical care, and other basic needs. The applicable statute and relevant case law provide that when a parent previously has had their parental rights terminated with respect to one child, that fact may be used as grounds to terminate the rights as to subsequent siblings, if termination is shown to be in the children's best interest. See Ark. Code Ann. § 9-27-341(3)(B)(ix)(a)(4).

There is a statutory requirement that case plans be developed in every dependency-neglect case or case involving an out-of-home placement. See Ark. Code Ann. § 9-27-402. The case plan is to be filed of record. See Rodriguez v. Ark. Dep't of Human Servs., __ Ark. __, __ S.W.3d __ (Dec. 16, 2004). Appellant argues that there were multiple case plans in this matter, some of which were not timely filed, and some of which were not properly signed. She contends that the documents are silent as to whether they were distributed to the parties, whether parties were invited to participate in the planning sessions, and whether parties were on notice of the requirements in the plans. Appellant maintains that DHS's failure to comply with the statutory requirements for the case plan amounts to an insufficiency of the evidence.

The applicable statute requires that a case plan must be filed of record, not that it must be introduced as evidence in a termination hearing. Appellant has failed to establish a nexus between any alleged deficiency in the case plan and the termination of her rights. It is undisputed that there was a case plan in place, which was a reflection of the court orders and problems identified with the initial petition for dependency-neglect and removal of the children. Appellant testified that she knew about the case plan and discussed the various issues and problems addressed therein. If appellant had concerns about the case plan, the proper procedure would have been to preserve the issue by asking the circuit court to review the plan during the fifteen-month pendency of the case, as is permitted by Ark. Code Ann. § 9-27-402(d). She failed to do so, and accordingly, we decline to review this argument. Jones v. Ark. Dep't of Human Servs., __ Ark. __, __ S.W.3d __ (Mar. 24, 2005).

Finally, appellant asserts that the circuit court erred by not requiring DHS to prove all the factors listed in Ark. Code Ann. § 9-27-341(b)(3)(a), specifically concerning the likelihood that the children would be adopted and the potential harm from continuing contact with the parents. The list of factors is not exclusive, and conversely, not all of the factors must be proven in determining the best interests of the children. There is sufficient evidence that the circuit court utilized the statutory factors and made a determination that the termination of appellant's parental rights was in the best interest of the children due to her failure to remedy the problems with obtaining stable housing and employment.

Affirmed.

Pittman, C.J., and Bird, J., agree.

1 Rickey Griffith was added as a party-defendant by way of the adjudication order on this date.