Dania Frausto-Morales Nava v. Arkansas Department of Human Services

ca05-345

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA05-345

March 1, 2006

DANIA FRAUSTO-MORALES NAVA AN APPEAL FROM BENTON

APPELLANT COUNTY CIRCUIT COURT

[J03-169 DN]

V. HON. JAY T. FINCH, JUDGE

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Dania Frausto-Morales Nava appeals from an order of the Benton County Circuit Court terminating her parental rights to her son J.N., born September 13, 1998, and daughter A.N., born December 15, 2000. She argues four points on appeal: (1) the circuit court erred in denying her motion to dismiss or for continuance; (2) the circuit court erred in incorporating the entire record of the proceedings in the case where she was neither present nor represented by counsel during those proceedings; (3) the circuit court erred in terminating her parental rights when no testimony was presented that termination was in the best interests of the children or that appellant was unfit; and (4) the circuit court erred in terminating her parental rights because the Arkansas Department of Human Services (DHS) failed to make a meaningful effort to reunify the family. We affirm the termination of appellant's parental rights.

Factual and Procedural History

On March 31, 2003, DHS filed a petition for emergency custody of J.N. and A.N., alleging lack of supervision. According to the affidavit of facts included with the petition, A.N. was found approximately two to three blocks from the family's home on March 28, 2003. Further, DHS had previously opened a protective services case due to a similar incident involving J.N., who was found alone at a local community park. A.N. was taken to a doctor on March 28, 2003, where she was documented with having multiple bruises, scars in different stages of healing, a twenty-four-centimeter linear scar that was possibly secondary to a burn, and a severe diaper rash. At the time, the children were staying with their grandmother, Matilda Morales. Appellant's last known residence was in Tepic, Mexico; however, her exact location was unknown. A probable cause hearing was held on April 7, 2003, where Morales presented a document signed May 26, 2000, and notarized May 4, 2001, stating appellant's intent to relinquish maternal custody of the children to Morales. After the document was entered into the record, Morales stipulated to probable cause, and an order was filed on April 24, 2003. An adjudication hearing was held on May 13, 2003, where Morales stipulated to the adjudication of dependency-neglect based on inadequate supervision, and an order was filed to this effect on June 25, 2003.

Review hearings were held on August 19, October 21, and November 25, 2003. During this time, the children were receiving counseling: J.N. for his aggressive and angry behavior, and A.N. for inappropriate sexual behavior. Except for her failure to attain legal resident status, Morales was cooperating with DHS. At all times, the goal of the case was to work toward reunification with Morales.

A permanency planning hearing was held January 20, 2004, when DHS recommended that the goal of the case continue to be reunification with the grandmother. Morales wanted J.N. and A.N. returned to her home as quickly as possible; however, all others involved with the case (DHS, the attorney ad litem, and the court-appointed special advocate (CASA)) recommended continued therapeutic treatment outside of the home. The court heard testimony from Paula Coleman, who worked with J.N. in individual therapy, and with J.N., A.N., and Morales in family therapy. Coleman testified that she was working on anxiety and oppositional behavior with J.N. She stated that J.N. had been diagnosed with post-traumatic stress disorder (PTSD) and physical abuse and neglect. J.N. talked about monsters, was afraid to sleep, avoided talking about family issues, and reported hallucinations of dragons over his head. Coleman stated that J.N. has high levels of anxiety anytime she approaches family issues or anytime J.N. knows there is a family visit. When Coleman incorporated Morales and A.N. into the sessions, J.N. had difficulty preparing for school in the mornings and showed signs of regression. J.N. started expressing memories of domestic violence, and Coleman opined that the violence was likely between J.N.'s biological parents. Coleman also testified that Morales recently told her that J.N. may have witnessed his father rape appellant.

Coleman testified that A.N. was very anxious during her first family session and that A.N. had soiled her pants and wet herself twice during the session. She testified that A.N. showed aggression and that A.N. had to be watched at home because she would masturbate until she bled and tried to insert foreign objects inside her body. Coleman testified that it was not normal for three-year-old children to act out to that level. She could not tell at that point whether A.N. had been abused.

On cross-examination, Coleman testified that J.N. did not like visiting Morales and that he often wanted to stay with his foster mother. Coleman noted that J.N. was very anxious about going home. She could not recommend increased visits with Morales until J.N. was more stable. This anxiety was not present in A.N., who interacted with Morales and Morales's three other children well.

Tara Holt, A.N.'s counselor, testified that A.N. was diagnosed with post-traumatic stress disorder with a reactive attachment disorder. Holt also testified about the masturbation issues and reported that A.N. was pulling her hair and chewing the sleeves of her shirt at school. The latter incidents were new behavior. A.N. also had problems with potty training, and although she had been improving, A.N. had exhibited slow regression.

An order from the permanency planning hearing was entered on February 4, 2004. Reunification continued to be the goal, as Morales appeared to be complying with the case plan and established orders of the court. The court also noted that DHS had made reasonable efforts to deliver reunification services, including child welfare services; protective and preventive services; parenting classes in Spanish; extensive transportation services; family visitations; therapeutic foster care; referrals to counseling services, therapeutic day treatment, and intensive family services; medical services, Schmieding evaluations; and worker visits. The order noted appellant's failure to appear before the court and failure to contact DHS or the juveniles. DHS was relieved of its duty to provide services to appellant unless she appeared before the court.

At a subsequent review hearing on March 24, 2004, DHS recommended that the goal continue to be toward reunification but asked the court to set the matter for a termination-of-parental-rights hearing. At the hearing, Coleman testified that Morales's attitude toward the case had changed since the previous hearing. Notably, Morales had been angry that the children were not sent back to her home at the previous hearing. During most of the sessions, Morales tried to convince Coleman that the children should be with her. Coleman stated that J.N. was still anxious and often showed signs of depression, had tantrums, and talked about hurting himself and A.N. She also discussed an incident where J.N. had been violent toward the foster family's dog. A.N. showed signs of regression in family sessions. Coleman testified that she had seen no forward movement during therapy. She was also concerned that the children had been molested at some point in their life, as J.N. was caught touching A.N. and taking her clothes off.

Coleman had also confronted Morales about some of the things J.N. told her, including a statement that he only wanted one therapist. J.N. later told Coleman that Morales told him to say that. Coleman opined that Morales had taken no responsibility for the condition of the children. However, on two occasions, Morales indicated that she was interested in getting therapy for herself. Coleman offered to set up an appointment closer to Morales's home, but Morales stated that she could make the arrangements herself.

On cross-examination, Coleman testified that Morales's desire not to participate in the family sessions had occurred more than once. She noted that Morales wanted to help the children but wanted the children at home first. Coleman testified that Morales claimed not to see J.N.'s anxiety problems; however, J.N. did not feel safe in Morales's home. She also testified that A.N. worried about Morales not having any money and was recently seen at a grocery store asking strangers to give Morales money for food.

Morales testified that she never experienced any type of counseling before the children were taken into DHS custody and that she did not understand what was expected of her. She stated that A.N.'s counselor and J.N.'s counselor had two different approaches and that she often received different suggestions from them. She stated that she proposed the idea of individual therapy for herself, that she could make her own arrangements for counseling, and that she was willing to undergo therapy if it would help the children. Morales agreed that the children have serious problems; however, she had never seen the behaviors that Coleman reported. She stated that the children may have seen the mean things their father did to their mother and specifically recalled explaining to the counselors that J.N. was afraid of going into the bathtub because his father had attempted to electrocute his mother in the bathtub. On cross-examination, Morales testified that she had spoken to appellant twice since the children were in DHS's custody. She stated that she explained to appellant that the children were in DHS's custody, to which appellant replied that the children belonged to Morales. Morales opined that appellant no longer wanted the children.

In an ordered filed May 27, 2004, the circuit court changed the goal of the case to termination; however, it ordered that reunification efforts continue. Before the order was filed, the attorney ad litem for the children filed a motion to cease visitations. In her motion, she stated that on or about April 1, 2004, after an unsupervised visitation with Morales, A.N. had vaginal bleeding. Doctors discovered an abrasion on her hymen during a medical evaluation. Later, A.N. and J.N. separately revealed that Morales had been sexually abusing them. In the May 27, 2004, order, the court noted the evidence that the children had been abused; however, it stated that there was insufficient evidence to determine the source of the abuse. The court ordered the unsupervised visitations to continue. DHS filed a petition for termination of appellant's parental rights on June 14, 2004. The court entered another order on June 23, 2004, noting that appellant had failed to appear in this case up to this point and appointed counsel for appellant.

Prior to the termination hearing, appellant's attorney filed a motion to dismiss for failure of service, alleging that DHS never identified its efforts to find appellant. In the alternative, appellant's counsel requested a continuance, alleging that appellant was living in Tepic, Mexico; was eight to nine months pregnant; was unable to enter the country legally; and would unlikely be able to enter the country to attend the termination hearing. The court held a motion hearing on June 29, 2004, where issues such as admitting child hearsay and continued visitation in light of the sexual abuse accusations were argued. While these motions are not relevant to this appeal, the court heard testimony from Coleman. She noted that since April 2004, J.N.'s behavior had worsened. Specifically, J.N. was throwing tantrums, acting out sexually, and smearing feces on A.N.'s comforter. J.N. started improving in May and had improved since then. Coleman also noted that J.N.'s behavior was related to his anxiety level and opined that the two were related because his behaviors would be worse on days he had family therapy. The opposite was true with A.N., who was always eager to see Morales. However, A.N. would show regression after those visits, including baby talk and not doing things for herself. Coleman testified that she still conducted individual counseling with J.N. and that J.N. had become much calmer in sessions. Specifically, J.N. was more cheerful, more talkative, and stopped playing aggressively. His PTSD symptoms had also stopped. She attributed J.N.'s improvement to him not having contact with Morales. While she had not spent significant time with A.N., Coleman was informed that A.N.'s behavior had improved, that the masturbation had decreased significantly, and that A.N. was more cheerful and calmer.

The motion hearing was continued to July 27, 2004. Holt testified that when she first started counseling A.N., she was masturbating excessively, had control issues, was excessively clingy and attention seeking, was verbally oppositional, and had difficulty interacting with other children. Holt attributed these behaviors to past trauma. She saw improvements in A.N.'s behavior the previous October; however, the negative behaviors increased again when A.N. started family therapy. Holt also noticed regression after the last court appearance and opined that the court appearance induced high anxiety for her. She stated that, for progress to occur, A.N. needs to know what is going to happen to her. Holt noted that A.N. refers to her foster parents as her "Mom" and "Dad," and she talks about "Mom" and "Dad" during therapy sessions. She also testified that A.N. does not like to talk about Morales and stated that Morales had abused her.

Lora Nank, J.N. and A.N.'s foster mother, testified that the children had been in her home since March 2003. When the children came into her home, neither child spoke English. J.N. would be very aggressive at daycare, yell at other children, and throw objects when he did not get his way. Nank noted the progress since that time. Both children were speaking English fluently and could express their needs. A.N. had become potty trained. The children had stopped hoarding food, and they played well with other children. During the visits with Morales, Nank noticed that J.N. would be very upset about the visits. During therapy, she would often have to de-escalate J.N., as he would be upset and mad. Nank noted that J.N. expressed to her why he was angry on only one occasion, and on that occasion, J.N. told her that Morales hurt him. Nank testified that things were going well prior to the last court hearing. Before that time, both children were more cooperative. After the hearing, A.N. stopped using the toilet for a week and a half, and J.N. became aggressive and defiant.

The circuit court found that J.N. and A.N. had been physically and sexually abused in Morales's home over a period of time. It also noted that the children stabilized while out of the Morales's home and that continuing contact with Morales resulted in bizarre, self-harming behavior and was not in the children's best interests. Based on these facts, the court ordered that there be no further visitation between Morales and the children.

Next, the court addressed appellant's motion to dismiss. DHS argued that the motion was untimely under Rule 6 of the Arkansas Rules of Civil Procedure. It noted that appellant's counsel was appointed on June 23, that she filed the motion to dismiss on July 19, and that Rule 6 required a written motion and notice of the hearing to be served no later than twenty days before the hearing. Appellant's counsel confirmed those facts but stated that she was not made aware of the appointment until June 27, did not receive any communication about her client until after July 1, and did not become aware of her client's location until July 12. She also argued that appellant was never made a party to the proceeding because she was never properly served under Rule 4 because the affidavit for warning order stated insufficient facts to warrant the issuance of a warning order. The affidavit stated in pertinent part:

The clerk should issue a Warning Order notifying [appellant] and [putative father] of the action because after diligent search and inquiry, their whereabouts remain unknown.

The circuit court denied the motion on the grounds that the motion was not timely filed. However, it allowed appellant's counsel to make her case on whether DHS made diligent effort to contact appellant.

Morales testified that she did not remember the last time appellant was in the United States; however, it was sometime close to two years prior to the hearing. She stated that, when appellant left the county and moved to Tepic, appellant left information on how to contact her. She did not recall whether she gave the information to DHS.

Morales stated that when DHS was first involved in the case, DHS asked her if she knew where appellant was. At that time, appellant was vacationing in Puerto Vallarta, and Morales could not contact her. Morales testified that she told appellant about the termination proceedings earlier that month and that appellant was attempting to come back to the United States. On cross-examination, Morales testified that no one from DHS had asked her for appellant's contact information since April 2003. She stated that she gave DHS a telephone number and appellant's address in Tepic. She testified that she could contact appellant anytime and that, if appellant ever went anywhere, appellant would eventually return to her residence in Tepic. However, Morales did not know where appellant was in April 2004.

Jason Smith, an investigator for DHS, testified that he first talked to Morales in April 2002 about the whereabouts of appellant. He stated that Morales did not know where she was other than that she was in Mexico. The next contact with Morales was in March 2003, when Morales gave him a telephone number. He called the number but was told that appellant was not residing at that number. Smith testified that he received no further information from Morales other than that appellant was in Tepic. On cross-examination, Smith testified that he only tried the telephone number once. He stated that he did not contact a private investigator or attempt an internet search. He stated that, when trying to find parents, he typically goes to the last known address and asks family members. In this case, he was never given any address for appellant. He stated that he had the impression that appellant resided with Morales at some point; therefore, he always started with Morales anytime he tried to find her.

Christina Westminster, the foster-care supervisor, stated that she sent one of her staff members to ask Morales if she knew where appellant was living. She testified that Morales could provide no additional information about contacting appellant. Westminster also contacted Morales's attorney, who could not provide any additional information. She stated that a computer search was also unhelpful. An attempt to find appellant using birth records and marriage licenses was also unsuccessful.

Christine Rennuart, the CASA volunteer assigned to the case, stated that she was present for two staff meetings at DHS where Morales was present. She recalled that Morales would always state that she did not know where appellant was. DHS also called Jorge Alcon, a DHS employee, who also testified that Morales did not know where appellant was. Jennifer Wilson, a DHS protective services worker, testified that she contacted the Mexican Consulate in Texas, who referred her to the American Consulate in Puerto Vallarta. She was told that she needed to send a certified letter to Mexico before someone could attempt to find appellant.

The court denied appellant's motion to dismiss. It noted that the requirement of doing a diligent search did not require an exhaustive search. It found DHS's efforts to be diligent. The court also stated that, had DHS been given an address, it would have ruled differently; however, it was not convinced that Morales ever gave anyone an address. Appellant's counsel renewed her motion for continuance based on appellant's inability to travel, and that motion was also denied.

DHS moved to have its past recommendations in the case admitted, and they were admitted without objection. It also moved to incorporate the prior proceedings into the termination hearing, which were admitted into evidence. Appellant's counsel objected because the termination hearing had been the only proceeding where she had been present; however, the court ruled that Morales had stood in loco parentis, had always sought reunification, and had presented herself as the person with whom the children would have been reunited. DHS then asked for the court to terminate appellant's parental rights. The court allowed appellant's counsel to present any evidence she wished to present. Counsel presented no evidence.

Appellant's parental rights were terminated in an order filed August 27, 2004. The court found that termination was in the children's best interests, considering an adoption report submitted showing that the children were within a category of children that are highly adoptable and the potential harm caused by continuing contact with appellant. Specifically, the court noted that children had been in DHS custody for sixteen months, that appellant never contacted DHS or the children, and that the children witnessed severe domestic violence. The court also found that the children were adjudicated dependent-neglected and, despite a meaningful effort by DHS to rehabilitate and correct the conditions that caused removal, the conditions had not been corrected; that appellant willfully failed to provide significant material support or to maintain meaningful contact with the children; that appellant had abandoned the children; and that appellant subjected her children to aggravated circumstances.

Motion to Dismiss / Motion for Continuance

Appellant argues that the circuit court erred in denying her motion to dismiss. She contends that DHS failed to perfect service pursuant to Rule 4(f) of the Arkansas Rules of Civil Procedure because DHS did not make a diligent effort to contact her. However, we affirm on this point because appellant does not address all bases for the denial of her motion. Specifically, before it heard evidence on the issue, the circuit court stated that it would deny her motion because it was untimely under Ark. R. Civ. P. 6. When a party appealing from a ruling leaves an alternate, independent ground for the ruling unchallenged, the circuit court's ruling must be affirmed. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989); Moore v. Mueller Indus., ___ Ark. App. ___, ___ S.W.3d ___ (Nov. 10, 2004).

However, we also hold that DHS satisfied the requirements of service by warning order. Because service by warning order is in degradation of common law, Rule 4(f) must be construed strictly, and compliance with its requirements must be exact. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003); Jackson v. Jackson, 81 Ark. App. 249, 100 S.W.3d 92 (2003); Black v. Merritt, 37 Ark. App. 5, 822 S.W.2d 853 (1992). Rule 4(f) of the Arkansas Rules of Civil Procedure states in pertinent part:

(1) If it appears by the affidavit of a party seeking judgment or his or her attorney that, after diligent inquiry, the identity or whereabouts of a defendant remains unknown, or if a party seeks a judgment that affects or may affect the rights of persons who are not and who need not be subject personally to the jurisdiction of the court, service shall be by warning order issued by the clerk. This subdivision shall not apply to actions against unknown tortfeasors.

(2) The warning order shall state the caption of the pleadings; include, if applicable, a description of the property or other res to be affected by the judgment; and warn the defendant or interested person to appear within 30 days from the date of first publication of the warning order or face entry of judgment by default or be otherwise barred from asserting his or her interest. The party seeking judgment shall cause the warning order to be published weekly for two consecutive weeks in a newspaper having general circulation in the county where the action is filed and to be mailed, with a copy of the complaint, to the defendant or interested person at his or her last known address by any form of mail with delivery restricted to the addressee or the agent of the addressee.

* * *

(4) No judgment by default shall be taken pursuant to this subdivision unless the party seeking the judgment or his or her attorney has filed with the court an affidavit stating that 30 days have elapsed since the warning order was first published as provided in paragraph (2) or posted at the courthouse pursuant to paragraph (3). If a defendant or other interested person is known to the party seeking judgment or to his or her attorney, the affidavit shall also state that 30 days have elapsed since a letter enclosing a copy of the warning order and the complaint was mailed to the defendant or other interested person as provided in this subdivision.

Further, Comment 12 to the Reporter's Notes to Rule 4 provides:

The burden is on the party attempting service by publication to attempt to locate the missing or unknown defendant. Such party or his attorney is required to demonstrate to the court, by affidavit or otherwise, that after diligent inquiry, the defendant's identity or whereabouts remain unknown.

(Emphasis added.) See also Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983). The circuit court's finding of fact as to whether the party attempting service by publication made a diligent search for a missing party will not be reversed unless it is clearly erroneous. Id.

Appellant contends that DHS failed to properly comply with Rule 4(f) because its affidavit for warning order merely recites that a diligent inquiry had been made. She cites Smith v. Edwards, supra, for the proposition that merely reciting that a diligent inquiry had been made is insufficient for proper service. While it is true that where no diligent inquiry is made under Rule 4(f), the case should be dismissed for improper service of process, see Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992), that was not the case here. Testimony at the hearing indicates that DHS asked Morales where appellant was located, attempted to call appellant at the telephone number given to it by Morales,1 and contacted the American and Mexican Consulates in an effort to locate appellant. While appellant attempts to analogize this case with Smith v. Edwards, supra, where no diligent effort was made to locate the other party despite the submission of an affidavit stating that a diligent and reasonable inquiry had been made, DHS attempted to contact appellant and could not find her. Appellant also notes Morales's testimony that Morales had always been able to contact appellant; however, the circuit court found that Morales never gave appellant's contact information to anyone at DHS. The circuit court's ruling that DHS made diligent efforts to locate appellant was not clearly erroneous.

Next, appellant argues that DHS failed to comply with subparagraph (2) of Rule 4(f) because it never attempted to mail a copy of any petition to her last known address. However, DHS properly cites Morgan v. Century 21 Perry Real Estate, 78 Ark. App. 180, 79 S.W.3d 878 (2002), where service of process was found to be proper. There, the appellant's agent for service testified that the only address that he had for appellant was a post office box in Wickes and that he knew that the appellant had left the area. We found that the circuit court did not err in denying the motion to set aside the judgment based on improper service. Similarly, DHS only had one address for appellant (Morales's residence), and DHS knew that appellant was not there. In other words, there was no address to send the petition in this case.

Finally, appellant argues that DHS failed to comply with subparagraph (4) of Rule 4(f); however, that paragraph only relates to default judgments, and appellant did not suffer a default judgment. Rather, she was represented at the termination hearing, and her parental rights were terminated based on the evidence presented. We hold that DHS complied with Ark. R. Civ. P. 4(f), and we affirm the circuit court's ruling on this point.

Under the same point on appeal, appellant argues that the circuit court erred in denying her motion for continuance; however, she fails to present any argument regarding the denial of continuance. The failure to develop a point legally or factually is reason enough to affirm the circuit court. Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003). 

Incorporation of the Entire Record into the Termination Hearing

Next, appellant argues that the circuit court erred in incorporating the entire record of the proceedings where she was neither present nor represented by counsel at any of the proceedings. She contends that the circuit court violated her due process rights by incorporating the previous hearings into the record at the termination hearing. We agree that due process requires, at a minimum, notice reasonably calculated to afford a natural parent the opportunity to be heard prior to parental rights being terminated. Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002). However, appellant provides no argument about why the circuit court violated her due process rights by incorporating the previous hearings into the record. We do not consider assignments of error unsupported by convincing argument or authority, unless it is apparent without further research that the point is well taken. Jones v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Mar. 24, 2005).

Even if appellant presented a convincing argument, her argument would be procedurally barred. At the termination hearing, appellant's counsel stated:

Your Honor, I will object, because this is essentially the only proceeding that I've been in. I don't really know what all took place. Also, Your Honor, I was remiss when you denied the continuance, I think I need to object on the record to the denial of the continuance.

Appellant's argument on appeal is a due process argument, but her argument before the circuit court was based on inadequate time to prepare for the case. The failure to raise the due-process challenge on the circuit-court level precludes this court from addressing the issue on appeal. See Rodriguez v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Dec. 16, 2004); Walters v. Arkansas Dep't of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (2002). An appellant may not change the grounds for objection on appeal but is limited by the scope and nature of the objections and arguments presented at trial. Cox v. Miller, ___ Ark. ___, ___ S.W.3d ___ (June 23, 2005). We affirm on this point.

Termination of Appellant's Parental Rights

Finally, appellant argues that the circuit court erred in terminating her parental rights. In Causer v. Arkansas Department of Human Services ___ Ark. App. ___, ___, ___ S.W.3d ___, ___ (Dec. 14, 2005), we discussed the standard of review in termination-of-parental-rights cases:

When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence, and in reviewing the trial court's evaluation of the evidence, we will not reverse unless the court's finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous questions, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations.

First, appellant contends that the circuit court erred because no testimony was presented at the termination hearing regarding whether termination was in the best interests of the children or whether appellant was an unfit parent. Arkansas Code Annotated section 9-27-341 (Supp. 2005) provides that DHS must show by clear and convincing evidence that termination of parental rights is in the children's best interests, taking into consideration the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm caused by continued contact with the parents.

In support of her argument that there was no testimony that termination was in the children's best interests, appellant relies on Conn v. Arkansas Department of Human Services, 79 Ark. App. 195, 85 S.W.3d 558 (2002). There, DHS removed a child from its parents' custody one day after its birth. The circuit court adjudicated that child dependent-neglected the same day it had terminated the parents' rights with regard to their first child. At the termination hearing, the circuit court terminated the parents' rights with regard to the second child based on the termination of parental rights on the first child. We reversed, noting that while one of the grounds for termination had been met, namely having parental rights involuntarily terminated as to a sibling of the child, see Ark. Code Ann. § 9-27-341(b)(3)(ix)(a)(4), there was no evidence presented that termination of parental rights was in the second child's best interests.

However, Conn is distinguishable from the instant case. There, the court heard no evidence regarding the best interests of the children at any point in the proceedings. DHS may have presented no testimony at the termination hearing in the instant case; however, the record, which was incorporated into the termination hearing, is replete with evidence of horrible incidents witnessed by the children while appellant was still in their life. Further, appellant effectively abandoned her children and left them in an environment that caused severe emotional trauma, which was relieved only when they spent significant time out of Morales's home. This evidence supports the circuit court's finding that termination was in the children's best interests.

Appellant further contends that the circuit court erred in terminating her parental rights because DHS failed to make a meaningful effort to reunify her family. We need not address this point because the circuit court found four separate grounds to terminate appellant's parental rights under Ark. Code Ann. § 9-27-341(b)(3)(B). Only the ground listed in § 9-27-341(b)(3)(B)(I) requires DHS to make a meaningful effort to rehabilitate the parents and correct the conditions that caused removal of the children. Appellant does not challenge the other three grounds: the juveniles have been out of the home for a period of twelve months and the parent has willfully failed to provide significant material support or maintain meaningful contact; the parent has abandoned the juveniles; and the parent is found to have subjected the children to aggravated circumstances. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ii), (iv), (ix)(a)(3). In Dinkins v. Arkansas Department of Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001), our supreme court held that the lower court erred in finding that the appellant willfully failed to provide support; however, it held the error to be harmless based on alternate grounds to support the termination of parental rights, namely a failure to remedy the conditions that caused removal from the home.

The instant case is similar. Even if we were to conclude that DHS failed to make a meaningful effort to reunify the family, the other three unchallenged grounds support the termination of appellant's parental rights.

Affirmed.

Gladwin and Neal, JJ., agree.

1 Appellant seizes on DHS's testimony that it only attempted to use the number one time. Given that the person who answered that number stated that he or she did not know appellant, we do not find DHS's failure to call a second time unreasonable.