Donna Wallis Wiley v. Arkansas Department of Human Services and Minor Children

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca04-870

DIVISION IV

DONNA WALLIS WILEY

APPELLANT

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES and MINOR

CHILDREN

APPELLEES

CA 04-870

NOVEMBER 2, 2005

APPEAL FROM THE STONE

COUNTY CIRCUIT COURT

[NO. J-01-44]

HONORABLE STEPHEN CHOATE,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Donna Wallis Wiley has six children: S.W., born August 24, 1986; Be.W., born June 23, 1988; A.W., born August 19, 1989; P.W., born June 28, 1990; C.W., born July 12, 1993; and Br.W., born April 9, 1996. P.W. and C.W. are boys, and the remaining children are girls. Mrs. Wiley appeals from an order entered January 14, 2004, which terminated her parental rights as to all of the children. On appeal, Mrs. Wiley argues that the trial court erred in terminating her parental rights, and also erred in considering matters outside of the record in reaching its decision. We affirm.

Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wright v. Arkansas Dep't of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Arkansas Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and

convincing evidence. Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). In reviewing the trial court's evaluation of the evidence, we will not reverse unless the trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. 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. Brewer v. Arkansas Dep't of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001).

This case began on June 27, 2002, when the trial court took emergency custody of the children and placed them with the Arkansas Department of Human Services. The decision was based in part on the fact that the children were being exposed to Mrs. Wiley's father, who had abused her when she was a child. At a subsequent adjudication hearing held August 12, 2002, Mrs. Wiley agreed to a finding of dependency neglect, and the case plan was reunification with the five younger children, and independence for the oldest child. Mrs. Wiley was given supervised visitation with the five younger children, and visitation with S.W. only upon recommendation by S.W.'s therapist.

A review hearing was held November 18, 2002. At the hearing Mrs. Wiley informed the trial court that she was living with a man named James Wiley, whom she had known for three months (they subsequently married). She acknowledged that some of her children referred to Mr. Wiley as "daddy" after just one visit, and explained that the children have had an absent parent for most of their lives and wanted to have a father figure. Mrs. Wiley indicated that her divorce from the children's father, Paul Wallis, was pending, and that she had separated from him seven years ago. Paul Wallis had apparently abandoned the children and is not a party to this case.

The next review hearing was held April 23, 2003. David Gamble, a human services caseworker, testified that there had been good reports on all of the children except for A.W. and Be.W. Mr. Gamble stated that the children were staying at a facility known as the Ranch, but that A.W. had been defiant to the authorities there and was discharged from the facility and placed in a juvenile detention center. According to Mr. Gamble, A.W. had been removed from a school bus due to sexual acts on the bus, and on another occasion she left the campus and was cited for criminal trespass, fleeing, and resisting arrest. Mr. Gamble testified that Be.W. was battling severe depression.

Mr. Gamble indicated that Mrs. Wiley was in compliance with the case plan, which included regular visitation with the children and counseling sessions. However, he did state that for a while she was not in compliance because she had stopped attending counseling, partly because she had relocated several times. Mr. Gamble stated that Mrs. Wiley currently lives with Mr. Wiley in a two-bedroom, one-bathroom home that is very clean but not suitable for a large family.

A permanency planning hearing was held June 16, 2003. At the hearing, the trial court announced that the goal was still reunification for all of the children except S.W., noting that she was almost seventeen years old. At the hearing, Mrs. Wiley acknowledged that the children's father had been accused of sexually molesting the children, but denied that it happened. She further acknowledged that an incident occurred between Be.W. and her Uncle Johnny when Be.W. was five years old, for which Johnny was arrested.

The next permanency planning hearing was held August 25, 2003. At the hearing, S.W. and P.W.'s counselor, James Woods, testified. Mr. Woods stated that S.W. related a long history of being sexually abused, and had also perpetrated sexual abuse on her siblings. S.W. also told Mr. Woods that her mother has had sexual contact with her, and that she hasno intention of returning to her custody. Mr. Woods testified that P.W. related that he had been sexually abused by his father. Mr. Woods stated that P.W. wanted to return home and live with his mother.

Sabrina Regan counseled C.W. and Br.W. She stated that both children want to go home with their mother. Ms. Regan indicated that Br.W. was having serious problems, including masturbating in school and stating that the devil was telling her to kill her foster parents.

Heather Kemper is a therapist who worked with Be.W. and A.W. Ms. Kemper testified that Be.W. told her that she was sexually abused by her cousins while she lived in her mother's house. Ms. Kemper stated that Be.W. is very sexually promiscuous and has indicated thoughts of suicide. According to Ms. Kemper, A.W. denied being sexually abused, although Be.W. told Ms. Kemper that A.W. was the victim of sexual abuse also. A.W. was also sexually promiscuous. Both Be.W. and A.W. wanted to return to live with their mother.

Bridget Adkins is a therapist who worked with S.W. She testified that S.W. related being sexually abused by multiple family members, including her mother and father. S.W. told Ms. Adkins that when her mother sexually abused her she was "not herself" and used the name "Dominique." During these episodes, Mrs. Wiley allegedly fondled S.W.'s breasts and genitals. When S.W. later tried to confront her mother about the abuse, Mrs. Wiley said she could not remember anything about it.

Rita Ward, a family services worker, testified that she has worked with Mrs. Wiley and her family since 1997. According to Ms. Ward, Mrs. Wiley has told her that she was sexually abused by her father and an uncle, and sexually and physically abused by her ex-husband, Paul Wallis. The physical abuse inflicted by Mr. Wallis was so severe thatMrs. Wiley suffered hearing loss, developed a seizure disorder, and was in a wheelchair for a while. During the time she was in a wheelchair, Mrs. Wiley lived with the children at her parents' home. Mrs. Wiley told Ms. Ward that her children had also been sexually abused, and in particular mentioned abuse by their father and an uncle. Mrs. Wiley further stated to Ms. Ward that her father sexually abused her siblings, and during a home visit Ms. Ward heard Mrs. Wiley's father call his granddaughters "bitches" and "sluts."

Ms. Ward testified that she spoke with S.W., who told her about an incident where Mrs. Wiley would pretend to be her father, a man named "Ace," and touch her inappropriately. Mrs. Wiley did not deny this behavior, but explained that "I didn't mean anything by it," and "I just want her to be aware of what these boys are going to do to her if she goes out and starts dating." Ms. Ward also stated that Be.W. recounted an incident where Mrs. Wiley tried to run both her and S.W. over with a car, but that "apparently mom was just in another state."

The permanency planning hearing resumed on September 30, 2003, and Ms. Ward continued her testimony. She stated that on several occasions during parenting classes Mrs. Wiley would state that it is much easier for her to let the children do as they please and tell her what to do. Ms. Ward stated that while Mrs. Wiley allowed her children to live at her father's house and her father had raped her, Mrs. Wiley explained, "He promised me he would never touch my children and I feel I can protect them and I believe that he's not going to touch them." According to Ms. Ward, S.W. told her that Mrs. Wiley's father once told her, "You're becoming a woman and a woman has needs. If you ever need anything, I'm here. I can't get it up as well as I used to, but I can take care of your needs." Ms. Ward also related how, after S.W. was taken into foster care, Mrs. Wiley told her to keep her mouth shut and not tell people about the sexual abuse. Mrs. Wiley also told P.W. not to discloseany of the sexual abuse to anyone. As a family service worker who had spent a lot of time with the family, Ms. Ward gave the opinion that Mrs. Wiley will never be able to have her children back in her custody and raise them.

A family services supervisor, Delores Clardy, testified about Be.W. being raped by an intoxicated uncle, Johnny. According to Ms. Clardy, Mrs. Wiley told her that she was afraid of Johnny and that on that occasion she locked herself in the bedroom and left her children alone with him.

Kathy Buford counseled Mrs. Wiley, and stated that Mrs. Wiley regularly attended sessions and that Mr. Wiley was present each time. Mrs. Wiley denied to Ms. Buford any sexual abuse by her father or any perpetrated by her against her children. Ms. Buford stated that Mrs. Wiley has complied with the case plan, and made progress in therapy toward her role in protecting the children from future harm. Ms. Buford concluded that Mrs. Wiley and Mr. Wiley would be successful in being parents to the children, and she recommend gradual reunification.

Mrs. Wiley testified on her own behalf and denied ever being sexually abused by her father. She did state that she was sexually abused by an uncle who is now deceased. Mrs. Wiley acknowledged her ex-husband physically and sexually abused both her and her children. Mrs. Wiley denied sexually abusing her children, and did not believe S.W.'s statement that S.W. abused her siblings. Mrs. Wiley indicated that she and Mr. Wiley live in a three-bedroom house trailer, and that Mr. Wiley has steady employment and pays the bills. Mrs. Wiley does not work but receives $554 per month in SSI due to her seizure condition, although she had not had a seizure in more than a year. Mrs. Wiley testified that she has a "safety plan" for the children in the event of her regaining custody.

At the conclusion of the permanency planning hearing, the trial court changed the goal to termination. It also indicated that adoption was the plan for the three younger children, while independence was the plan for the older children.

The termination hearing was held November 19, 2003. Angel Martin, a therapist for Br.W., stated that Br.W. was drawing sexually explicit pictures and stated that she had seen what she was drawing in her mother's bedroom. Br.W. also indicated that her Uncle Lonnie had sexually molested her.

David Gamble testified that Mrs. Wiley was cooperative and complied with the case plan to the best of her ability. However, he stated that her shortcoming is her lack of ability to protect the children as evidenced by the long history of sexual abuse by different family members. Despite taking parenting classes and giving the effort, Mr. Gamble did not think Mrs. Wiley could adequately care for her children. He stated that the children need continued intense therapy, and that he is afraid they would not attend the sessions if returned to their mother, noting that Mrs. Wiley has told him that she can counsel the children better than the counselors.

Mr. Gamble stated that the Department of Human Services recommends termination of parental rights as to all of the children. He stated, "I feel that [Mrs. Wiley has] more of an incapacity to provide the parenting needed although she puts forth the best effort she possibly can." Mr. Gamble further stated, "I cannot think of any other services the Department could offer to this family that would enable this mother to protect these six children from further sexual abuse by family members." He indicated that adoption is in the best interest of the children, and that it is likely that all six children will be adopted.

Appellant's husband, James Wiley, also testified at the termination hearing. He stated that he has gotten to know Mrs. Wiley's father and does not believe that her father sexuallyabused her. Mr. Wiley also stated that he has met other members of Mrs. Wiley's family, including uncle Lonnie.

Kathy Eubanks, a social aide, visited with Mrs. Wiley in her home and found it to be in tidy condition. She thought that both Mrs. Wiley and Mr. Wiley participated well in parenting classes, although there was not any discussion with her about protecting the children from sexual abuse. Ms. Eubanks experience was positive and she thought the Wileys had the desire to be good parents.

Kathy Buford testified again at the termination hearing, and she again gave testimony favorable to Mrs. Wiley. She stated that the parenting issues she faced stemmed from the experiences she had as a battered wife, but that she is now away from that situation. Ms. Buford saw much improvement in Mrs. Wiley's parenting abilities, and thought that she could meet the challenges of raising her children.

Mrs. Wiley testified at the termination hearing, and agreed that the children need counseling and that she would provide it for them. She acknowledged the sexual abuse by their father, but Mrs. Wiley denied that she or uncle Lonnie ever abused the children.

After the termination hearing, the trial court found it is in the children's best interest for Mrs. Wiley's parental rights to be terminated. The termination order also contained a finding that tracked the language of Ark. Code Ann. § 9-27-341 (b)(3)(B)(vii)(a) (Supp. 2003), which provides:

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 indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances which prevent return of the juvenile to the family home.

For her first argument challenging the termination of her parental rights, Mrs. Wiley contends that the Department of Human Services failed to provide meaningful family services. She notes that while there were individual therapy sessions, there was an absence of family therapy sessions. Mrs. Wiley further notes that although the Department was ordered to arrange a psychiatric evaluation for her, this was never done. Mrs. Wiley submits that this case should be reversed due to inadequate services, and further asserts that she did all she could to comply with the case plan and made steady progress despite the Department's deficiencies.

We hold that the trial court did not clearly err in finding that the Department offered appropriate family services. There was evidence that Mrs. Wiley was afforded parenting classes and counseling, and that her children were given therapy. While the Department made a reasonable effort to reunite Mrs. Wiley with her children, there was evidence that although Mrs. Wiley was giving the effort she was simply incapable of providing a safe environment for her children. Over the years, her children were subjected to repeated exposure to sexual abuse from multiple family members. Moreover, there were allegations that Mrs. Wiley herself was a perpetrator. The trial court gave credit to Mr. Gamble's opinion, which was that despite Mrs. Wiley's cooperation, there were no further services available that could rehabilitate her to the point where she could protect her children. There was clear and convincing evidence in this case that, despite the offer of appropriate family services, Mrs. Wiley manifested the incapacity to protect her children and provide them with a safe home environment.

Mrs. Wiley next argues that the order of termination must be reversed because there were no appropriate placement plans for the children. Arkansas Code Annotated section 9-27-341(b)(1) (Supp. 2003) provides that, "The court may consider a petition to terminateparental rights if there is an appropriate permanency placement plan for the juvenile." The termination order provides that the placement plan for the three younger children is adoption, while the plan for the older children is independent living. Mrs. Wiley asserts that the prospect of adoption is not realistic, and further that the case plan for the older children was not appropriate because they will simply "languish in foster care until they reach the age of majority."

We decline to address this argument because it was not raised below. In Myers v. Arkansas Dep't of Human Servs., Ark. App. S.W.3d (May 11, 2005), we held that even in a case involving termination of parental rights, we will not consider arguments made for the first time on appeal. While Mrs. Wiley did argue below that the Department failed to provide meaningful services, she failed to argue that there was no appropriate placement plan for the children. For this reason the issue is not preserved for review.

Mrs. Wiley next contends that the trial court erred in finding that termination was in the best interest of the children. Arkansas Code Annotated section 9-27-341(b)(3)(A) (Supp. 2003) 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[.]

Mrs. Wiley argues that the Department failed to prove the likelihood of adoption, and further contends that continuing contact with her children would have been beneficial to them.

We hold that the trial court committed no error in finding termination to be in the children's best interest. While Mrs. Wiley argues that there was no evidence that thechildren could be adopted, we note that Mr. Gamble testified that adoption was likely for all of the children. But more importantly, there was ample evidence of continued harm that would be caused by continuing contact with the parent. As discussed earlier, there was evidence of a long history of sexual abuse, and incapacity on the part of Mrs. Wiley to ensure a safe environment if the children were returned. Under these circumstances, the trial court's decision to terminate Mrs. Wiley's parental rights was not clearly against the preponderance of the evidence.

Mrs. Wiley's remaining argument is that the trial court's decision must be reversed because the trial court considered matters outside of the record in reaching its decision. After the record was submitted in this case, Mrs. Wiley filed a motion to settle the record on the basis that hundreds of pages of documents were included that were not admitted into evidence, including reports from counselors and therapists as well as letters to the trial judge. We granted the motion, and a supplemental record was prepared and submitted that deleted the aforementioned material. Mrs. Wiley argues that these documents were damaging to her case, and that because the trial court considered them its ruling was tainted. As proof that the documents were considered, Mrs. Wiley notes that at the conclusion of the termination hearing the trial court reserved ruling, stating that it wanted to review a psychological evaluation as well as "some of the other things."

We agree that there were items in the trial court's file that were not in evidence, that some of these documents were damaging to Mrs. Wiley's position, and that the trial court apparently viewed some of them. Nevertheless, we review termination cases de novo, and on our de novo review we affirm the decision of the trial court on the basis that it was not clearly against the preponderance of the evidence. The strongest evidence in this case was the testimony taken at the various hearings, and much of the disputed documentation iscumulative of the evidence adduced at the hearings. The testimony that was properly before the trial court, and now before this court, clearly supports the trial court's decision to terminate Mrs. Wiley's parental rights, and we affirm its decision.

Affirmed.

Gladwin and Baker, JJ., agree.