Daniel Ballard v. Arkansas Department of Human Services
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN B. ROBBINS, JUDGE
DIVISION I
CA 06-164
NOVEMBER 15, 2006
DANIEL BALLARD
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT, [NO. JV-04-80]
V.
HONORABLE MARK HEWETT,
JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
AFFIRMED
Appellant Daniel Ballard appeals from an order entered November 7, 2005, that
terminated his parental rights to his four children, Heaven (d/o/b 12-18-98), Destiny (d/o/b
4-15-01), Hailey, (d/o/b 3-3-03), and Daniel, Jr., (d/o/b 8-3-04). The order also terminated
the parental rights of the children’s mother, Roxann Williams, but she is not a party to this
appeal. For reversal, Mr. Ballard argues that the trial court erred in finding that there was
clear and convincing evidence to support terminating his rights. We affirm.
When the issue is one involving the termination of parental rights, there is a heavy
burden placed upon the party seeking to terminate the relationship. Johnson v. Arkansas
Dep’t of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). Termination of parental
rights is an extreme remedy and in derogation of the natural rights of the parents. Wade v.
Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights,
however, will not be enforced to the detriment or destruction of the health and well-being
of the child. Id. 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. Baker v. Arkansas Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000).
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. Id. In resolving the
clearly erroneous question, we must give due regard to the opportunity of the trial court to
judge the credibility of witnesses. Id. 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. Ullom v. Arkansas Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204
(2000).
This case began on February 6, 2004, when appellee Arkansas Department of Human
Services (DHS) took an emergency hold on the three oldest children to protect their health
and safety. The trial court entered an order of emergency custody on February 9, 2004, on
the basis that Mr. Ballard was in jail and that the children’s mother had released the children
to one of their uncles, who brought Hailey to the hospital with a case of pneumonia. The
three oldest children were adjudicated dependent/neglected on April 6, 2004, and both
parents were allowed weekly visitation and ordered to maintain stable housing and
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employment, submit to a psychological evaluation, complete parenting classes, submit to a
drug/alcohol assessment and complete any recommended treatment, and submit to random
drug screens. An order for emergency DHS custody was entered with respect to Daniel, Jr.,
August 6, 2004, three days after his birth. Daniel, Jr., was adjudicated dependent/neglected
on November 8, 2004, and has at all times remained in DHS custody.
While the original case plan was reunification with the parents, the trial court entered
a permanency planning order on March 16, 2005, that changed the plan to termination of
parental rights. In that order, the trial court found that, despite reasonable efforts to provide
services by DHS, both parents failed to comply with the court’s orders by failing numerous
drug screens and failing to complete a drug treatment program. DHS filed a petition to
terminate both parents’ parental rights on June 15, 2005, and the petition was granted
subsequent to a termination hearing held August 5, 2005. In the order terminating
appellant’s parental rights, the trial court specifically found that DHS proved by clear and
convincing evidence that it had an appropriate permanency plan for the juveniles, namely
adoption, and that it was in the best interest of the children that appellant’s parental rights
be terminated. The trial court further found that the juveniles had been out of the home of
the parents for more than one year and that, despite meaningful efforts by DHS to
rehabilitate the home and correct the conditions that caused removal, those conditions had
not been remedied by either parent.
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The evidence before the trial court at the termination hearing was as follows.
Mr. Ballard testified that he currently lives with a friend in a trailer, and that he has lived
there for two months. He stated that he married the mother of his children on February 1,
2005, although they have since separated. Mr. Ballard acknowledged that in the past fifteen
months he had lived in at least ten places, including staying “on and off from motel to
motel.” Mr. Ballard maintained that while he has not had stable housing, he has held steady
employment. He stated that he currently works at OK Foods and has held that job for four
weeks.
Mr. Ballard acknowledged that he was ordered to undergo drug treatment, but
indicated that he has failed to enter a program because it conflicts with his employment.
Mr. Ballard further admitted to positive drug screens, and DHS produced evidence that
Mr. Ballard had failed twenty-one out of twenty-eight drug tests as a result of marijuana and
methamphetamine use. Despite the positive tests, Mr. Ballard stated that he has his drug
problem under control.
Mr. Ballard noted in his testimony that he underwent a psychological examination as
ordered by the court, which was conducted on July 31, 2004. In a subsequent report his
examiner, Dr. Douglas Brown, indicated that when the children were taken into DHS
custody, Mr. Ballard was temporarily in jail as a result of a false charge of child molestation
by the children’s mother, and that those charges had been dropped. Dr. Brown noted a
history of marijuana and methamphetamine abuse, and incorrectly stated that Mr. Ballard’s
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drug problem had been in remission for at least five to six months. While Mr. Ballard told
Dr. Brown he had quit using drugs, he had tested positive for both marijuana and
methamphetamine just sixteen days before the examination.
Dr. Brown ultimately
concluded that he saw nothing at that time that would preclude Mr. Ballard from regaining
custody of his children.
While acknowledging that he had not accomplished all of the goals of the case plan,
Mr. Ballard nonetheless maintained that he had been trying. He had been visiting his
children and stated that he gets along well with them. He stated that he loves his children
very much, had taken care of them by himself in the past, and would have no problems if
they were returned to him.
Terry Foley, an admissions counselor at Harbor House drug treatment facility,
testified that Mr. Ballard was admitted for inpatient treatment on February 22, 2005, but left
the same day and did not return. According to Mr. Foley, Mr. Ballard required treatment as
a result of intravenous drug use. Mr. Foley testified that most people with a drug problem
start very early in their life, and that Mr. Ballard reported to him that he started smoking
marijuana at age thirteen, using methamphetamine at age seventeen, and using intravenous
drugs at age twenty-three.
Jonna Newby testified about parenting classes that had been offered to Mr. Ballard.
Ms. Newby stated that she tried to set up special hours to accommodate Mr. Ballard’s
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schedule, but that he failed to show up for any of the sessions and thus did not complete the
program.
DHS worker Robbie McKay was assigned to the case involving Mr. Ballard. She
testified:
The department has offered foster case, casework, transportation, parenting classes,
drug treatment. There are no other services that the department can provide that they
have not already provided. They have not asked for any services that we have not
provided. The number one issue in this case is for the parents to get drug treatment.
They have not maintained negative drug screens. My recommendation is that the
court grant termination and allow these children to be adopted.
On appeal from the order terminating his parental rights, Mr. Ballard argues that the
evidence did not support the trial court’s decision. He cites the following portions of the
guidelines for terminating parental rights as set forth in Ark. Code Ann. § 9-27-341 (Supp.
2005):
(b)(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:
....
(ii) The potential harm, specifically addressing the effect on the health and
safety of the child, caused by returning the child to the custody of 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 dependentneglected 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.
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....
(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.
Mr. Ballard initially contends that this case must be reversed because there was no
finding in the trial court’s order regarding the potential harm caused by returning the
children to his custody as required by subsection (b)(3)(A)(ii) of the above statute.
Mr. Ballard further asserts that there was no evidence that the children would be in any
danger of harm if returned to his custody, citing his testimony that he had adequately cared
for them in the past in the absence of the children’s mother.
Mr. Ballard also argues that the evidence did not support termination pursuant to the
grounds set out in subsection (b)(3)(B)(vii)(a). He submits that he was making progress
toward the case plan, and that while he was not in complete compliance, DHS failed to
establish parental incapacity or indifference to remedy the circumstances.
We hold that the trial court’s order was in compliance with the relevant statute and
that the trial’s decision to terminate Mr. Ballard’s parental rights was not clearly erroneous.
The trial court specifically found termination to be in the children’s best interest, and while
the order does not specifically address the potential harm caused by returning the children
to their father, we indulge in the presumption that the trial court acted properly and made the
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findings necessary to support its order. See Tillery v. Evans, 67 Ark. App. 43, 991 S.W.2d
644 (1999). Contrary to appellant’s argument, evidence was presented to support a finding
that the return of the children to their father’s custody would be potentially harmful. As
stated in the termination order, Mr. Ballard failed twenty-one of twenty-eight drug screens,
which included the most recent test performed less than a month prior to the termination
hearing. Mr. Ballard had a drug problem for which he failed to get treatment, he failed to
complete parenting classes, and he never established any suitable housing for the return of
his children. Given these circumstances, we find no clear error in the trial court’s finding
that termination was in the children’s best interest.
Mr. Ballard’s remaining argument is misplaced because in the trial court’s order
terminating parental rights, the trial court did not rely on Ark. Code Ann. § 9-27341(b)(3)(B)(vii)(a), as asserted by appellant. Instead, the trial court based its order on the
grounds set out in subsection (b)(3)(B)(i)(a), and Mr. Ballard does not specifically challenge
that determination on appeal. Nonetheless, the trial court did not clearly err in ruling that
that subsection was satisfied given that the children had been adjudicated
dependent/neglected and continued out of appellant’s custody for twelve months, and
despite meaningful DHS efforts Mr. Ballard failed to remedy the conditions causing
removal. In particular, Mr. Ballard failed to maintain stable and suitable housing for the
return of his children, and more importantly he exhibited a long-term drug problem, for
which he received no treatment, and which was apparently getting worse over time. Because
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none of the trial court’s findings in support of its decision to terminate appellant’s parental
rights were clearly erroneous, we affirm its decision.
Affirmed.
NEAL and CRABTREE, JJ., agree.
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