Mitzi Dawn Adams v. Arkansas Department of Human Services
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DIVISION II
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN B. ROBBINS, JUDGE
CA 06-58
JUNE 14, 2006
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT
[NO. JV-04-407]
MITZI DAWN ADAMS
APPELLANT
HONORABLE MARK HEWETT,
JUDGE
V.
AFFIRMED
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
Appellant Mitzi Dawn Adams appeals the termination of her parental rights to her two
daughters, DM and FM, as found by the Sebastian County Circuit Court. DM was born in
June 2003, and FM was born in July 2004. DM was removed from appellant’s custody on
June 30, 2004, when officers came to an apartment in Fort Smith where appellant was living.
Appellant was being served an arrest warrant, and she was at that time pregnant with FM.
DM was one year old and was taken into custody due to appellant’s incarceration and the
deplorable environmental conditions of the apartment. The next month, appellant went into
labor and gave birth to FM, who was taken into emergency custody at birth due to appellant’s
positive drug test and FM’s exhibition of withdrawal symptoms from amphetamines. The
case progressed and appellant ended up in prison for methamphetamine-related convictions.
Approximately fifteen months later, on September 29, 2005, the trial court entered an order
terminating her parental rights. It is this order on appeal.
Appellant presents two points in her brief on appeal: (1) that the trial court clearly
erred in terminating her parental rights because appellant did not exhibit a studied
indifference to her children; and (2) that the trial court clearly erred in terminating her
parental rights because the Department of Human Services (DHS) did not provide sufficient
reunification services to appellant. DHS filed a brief in opposition to appellant’s arguments
on appeal, asserting that there is no reversible error. We affirm.
The history of this case is as follows. In July 2004, DHS filed petitions with the
circuit court seeking to have DM and newborn FM declared dependent neglected based upon
environmental neglect and drug use by their mother.1 After an adjudication hearing in
August 2004, the trial court made a finding of dependency neglect, with the goal of
reunification with the mother. The testimony related a history of appellant’s mother and
brother being involved in drug-related activity, and appellant was living with her mother at
the time of her arrest in June 2004, during which a meth lab was found in the apartment.
Appellant (age nineteen and unmarried) was ordered to obtain independent living
arrangements, to resolve her outstanding legal problems, to undergo a drug and alcohol
assessment and any treatment recommended, and to submit to random drug tests. FM and
1
There was never a paternity finding made in this case, and no biological father
ever participated in these proceedings.
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DM were in the custody of DHS and placed with appellant’s cousins. At a review hearing
in January 2005, appellant was found to have not complied in any way with her case plan,
with the exception of having been evaluated for drugs and alcohol. At the permanency
planning hearing in June 2005, the trial judge again found that appellant was non-compliant
and had in fact engaged in continued drug behavior that resulted in her facing more criminal
charges. DHS was permitted to change the goal to termination of parental rights so that the
girls could be adopted. Appellant was served with notice of DHS’s petition to terminate
while in prison.
At the September 2005 termination hearing, appellant testified that she was a prisoner
and was working toward completion of a drug treatment program in prison so that she could
be paroled in the upcoming winter months. She agreed that officers found methamphetamine
in her closet in the apartment back in June 2004 and that she had trouble with addiction, but
she was finally addressing her problem. She expected to be “paroled out” to her brother, the
same young man who was arrested for drugs when she was. Appellant confirmed that her
own mother was also charged and was imprisoned in the same facility.
Appellant did not deny that she missed most of her scheduled visits with the girls
when she was not imprisoned, but she said she avoided the visits because she did not want
to be tested for drugs. She did not dispute that between July 2004 and June 2005, she came
to only two out of seventeen visits. She recalled that the last time she visited was in February
2004, at which she tested positive for methamphetamine. She agreed that she was arrested
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in late June 2005 for methamphetamine, and that was when she realized she needed to get
help. She agreed she had not complied with her case plan but explained that because she had
attention deficit disorder, she had difficulty understanding what was expected of her. She
listed her present understanding of the things she needed to do–get a job, have a stable place
to live, have food for the children, and stay away from drugs. Appellant said she was also
taking GED classes and parenting classes in prison. In short, appellant believed that if it
weren’t for the drugs, she would have been a responsible mother. She said she was ready for
the court to allow her a chance to prove she could be a good mother.
Stacy Glass, the family service worker, testified that DHS offered visitation, a
psychological examination and a drug/alcohol assessment, and drug screens to appellant.
Glass said that appellant never had a job and instead relied on her monthly SSI check, and
appellant moved around a lot and lied about where she was living, making it hard to keep
contact with her. She said appellant never attended the outpatient treatment for drug
addiction that was offered to her, and of the five drug tests she was offered, she took only
three and was “clean” only once. Glass said that at the two visits appellant attended
(November 2004 and February 2005), appellant was bewildered regarding how to take care
of the young girls. Glass said that appellant completed the assessment, which was the only
part of the plan she completed. Glass believed that the children were beautiful, doing
perfectly, very adoptable, and were living with people who wanted to adopt them. Glass
opined that termination was the appropriate goal.
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The attorney ad litem testified that termination was the best option for the children.
He stated that appellant had been generally untruthful along the way, and her efforts now
were too little, too late.
After hearing arguments of counsel, the trial judge announced his decision to
terminate appellant’s parental rights. He found that there was clear and convincing evidence
that DM and FM had been out of appellant’s custody for more than twelve months, and
despite DHS’s reasonable efforts to assist her in resolving her issues, the problems had not
been remedied by appellant. The trial judge listed the services as including visitation, a
drug/alcohol assessment, referrals for psychological evaluations, drug screens, advice on
housing, and the provision of appellant’s choice in foster-care placement. Despite more than
a year’s opportunity, appellant had not complied with her case plan, had not visited when not
incarcerated, had not maintained any type of housing, had failed to attend treatment offered
her, had incurred additional criminal charges during the case pendency, and had tested
positive for drugs when she would submit to the tests. The judge stated that appellant had
done “virtually nothing to try and rectify her problems,” and had instead focused on her own
desires and interest in drugs. He found that the children were “readily adoptable,” and that
it was in their best interest to give them a fair opportunity to have a meaningful life by giving
them a chance to be adopted. An order followed that formally recited these findings, which
is the subject of this appeal.
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We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Termination of parental rights is an
extreme remedy and in derogation of the natural rights of parents, but parental rights will not
be enforced to the detriment or destruction of the health and well-being of the child. Id.
Grounds for termination of parental rights must be proven by clear and convincing evidence.
M.T. v. Ark. Dep't of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). 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. Anderson v. Douglas, 310 Ark. 633,
839 S.W.2d 196 (1992). When the burden of proving a disputed fact is by clear and
convincing evidence, the appellate inquiry is whether the trial court's finding that the
disputed fact was proven by clear and convincing evidence is clearly erroneous. J.T. v. Ark.
Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). We give due regard to the
opportunity of the trial court to judge the credibility of the witnesses. Id. Where there are
inconsistences in the testimony presented at a termination hearing, the resolution of those
inconsistencies is best left to the trial judge, who heard and observed these witnesses
first-hand. Dinkins, supra. 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. We have no such firm conviction in this case.
The goal of Arkansas Code Annotated section 9-27-341 (Supp. 2003) is to provide
permanency in a minor child's life in circumstances in which returning the child to the family
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home is contrary to the minor's health, safety, or welfare and the evidence demonstrates that
a return to the home cannot be accomplished in a reasonable period of time as viewed from
the minor child's perspective. Ark. Code Ann. § 9-27-341(a)(3). Parental rights may be
terminated if clear and convincing evidence shows that it is in the child's best interest. Ark.
Code Ann. § 9-27-341(b)(3). Additionally, one or more grounds must be shown by clear
and convincing evidence. Arkansas Code Annotated section 9-27-341(b)(2)(A) provides the
grounds upon which a termination of parental rights may be established.
Appellant does not dispute that her daughters were out of the home for at least a year,
nor does she dispute that she needs assistance to learn how to effectively behave as a parent.
Her contention is that the trial judge clearly erred in terminating her parental rights when she
was maturing and learning to deal with her addiction problem, and she was prepared to do
what was necessary to keep her children in light of her expected release from prison in the
ensuing months. We cannot agree.
We are duty-bound to support the trial court’s action that gives effect to the
legislature’s overriding intent, which is to protect the best interest of our state’s children in
achieving a safe and permanent home. Ark. Code Ann. § 9-27-341(a)(3). While appellant
purportedly wanted to transform herself into the parent that her children needed after more
than a year passed where the children were out of her custody, she waited too long to institute
effort and there was no compelling evidence that she could be that parent within a reasonable
time. We are to give effect to the overriding legislative directive to provide permanency for
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children where return to the home cannot be accomplished within a reasonable time, viewed
from the child’s perspective. Evidence that a parent begins to make improvement as
termination becomes more imminent will not outweigh other evidence demonstrating a
failure to comply and to remedy the situation that caused the children to be removed in the
first place. Compare Camarillo-Cox v. Ark. Dep’t of Human Servs., __ Ark. __, __ S.W.3d
__ (Jan. 20, 2005). We affirm this point.
Appellant also contends that DHS failed to provide reasonable reunification services
such that termination of her parental rights is not warranted. Specifically, appellant asserts
that DHS failed to ensure that appellant understood the case plan requirements and failed to
make a referral for parenting classes. We disagree. Appellant, by her own testimony,
understood that her responsibility was to obtain stable housing away from drug-using
relatives, obtain employment, refrain from drug-use, complete drug treatment, and visit her
children. Her testimony was that she attended only two visits because she did not want to be
drug-tested, and she admitted that she moved around quite a bit, making contact between her
and DHS difficult. Appellant completed only the drug and alcohol assessment, and she
appeared for two of seventeen opportunities for visits; she did nothing further toward
meeting the goals or cooperating with DHS. The case worker essentially opined that
appellant, a young twenty-year-old, was only interested in her own desires, not the needs of
her children. Given any conflicts in the testimony, we would have to defer to the trial court
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on that issue. See Ark. Dep't of Human Servs. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265
(1992); In Re Adoption of Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).
Additionally, the trial court found at every review hearing that DHS had complied
with its duty to provide reunification services, stating so in an August 2004 order following
the adjudication hearing and in a June 2005 order following the permanency planning
hearing, among other review hearings. Appellant did not appeal either of those two orders,
which are final for purposes of appeal. See Ark. R. App. P. – Civ. 2(c)(3)(A) and (B) (2005).
Consequently, any contention that DHS was not providing relevant and appropriate services
to appellant before June 2005 is moot, and by then, appellant was incarcerated and unable
to take advantage of any potential service DHS could offer. We affirm on this point as well.
In summary, we affirm the termination of appellant’s parental rights to DM and FM.
G LADWIN and B IRD, JJ., agree.
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