Thompson v. Arkansas Dep't of Human Servs.

Colleen THOMPSON v. ARKANSAS DEPARTMENT OF
HUMAN SERVICES

CA 96-636                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered October 29, 1997


1.   Parent & child -- termination of parental rights -- evidentiary standard. -
     - The grounds for termination of parental rights must be
     proven by clear and convincing evidence. 

2.   Appeal & error -- evidentiary burden in chancery court -- "clearly
     erroneous" appellate standard. -- When the burden of proving a
     disputed fact in chancery court is by clear and convincing
     evidence, the question to be answered on appeal is whether the
     chancellor's finding that the disputed fact was proved by
     clear and convincing evidence is clearly erroneous; in
     resolving the clearly erroneous question, the appellate court
     must give due deference to the opportunity of the chancellor
     to judge the credibility of the witnesses.

3.   Parent & child -- cases involving minor children -- weight accorded
     chancellor's superior position. -- There are no cases in which the
     chancellor's superior position, ability, and opportunity to
     view the parties carry as great a weight as those involving
     minor children.

4.   Parent & child -- termination of parental rights -- extreme remedy. --
     Termination of parental rights is an extreme remedy and is in
     derogation of the natural rights of parents.

5.   Parent & child -- parental rights not enforced to detriment of child. --
     Parental rights will not be enforced to the detriment or
     destruction of the health and well being of the child.

6.   Parent & child -- termination of parental rights -- findings that
     termination was in best interest of children and that statutory
     requirements had been met were not clearly erroneous. -- Where there
     was evidence that appellant had been sentenced in a criminal
     proceeding to a total of forty years in prison, which
     constituted a "substantial period" of her children's lives as
     set out in Ark. Code Ann.  9-27-341(b)(2)(F) (Supp. 1995);
     where the children had been declared to be dependent-neglected
     and had been out of the home for more than the requisite one-
     year period of time; where there was evidence that appellee's
     efforts to rehabilitate the family had proved unsuccessful;
     where the chancellor was entitled to believe the testimony of
     one of the children and to disbelieve that of appellant; and
     where there was ample evidence in the record from which the
     chancellor could have concluded that the safety and welfare of
     the two youngest children would be best served by terminating
     appellant's parental rights, the appellate court was unable to
     say that the chancellor's findings that termination was in the
     best interest of the children and that the statutory
     requirements had been met were clearly against the
     preponderance of the evidence.


     Appeal from Crawford Chancery Court; Mark Hewett, Chancellor;
affirmed.
     Booth & Honeycutt, P.L.C., by: J. Marvin Honeycutt, for
appellant.
     Marlene S. Moore, for appellee.

     Judith Rogers, Judge.
     The appellant, Colleen Thompson, appeals from an order
terminating her parental rights in her children J.T., R.T., D.T.,
and S.T.  By this appeal, appellant contends that the chancellor's
decision was clearly erroneous only as to her two younger children,
D.T., who was born on May 26, 1987, and S.T, who was born on June
15, 1988.  We find no merit in her argument and affirm.
     The record reflects that the children were first removed from
the custody of appellant and her husband, Charles Thompson, the
children's adoptive father, in April of 1990.  A full array of
services was offered to the family such that reunification was
achieved in August of 1992.  On July 13, 1994, appellee was granted
emergency custody of the children.  By order of September 13, 1994,
the chancellor determined that the children were dependent-
neglected.  This determination was based on evidence that J.T. had
been physically abused and that R.T. had been sexually abused and
was a sexually exploited juvenile.  The chancellor found that D.T.
and S.T. were dependent-neglected because appellant and Mr.
Thompson were in jail awaiting trial.
     In December of 1994, appellant was found guilty by a jury of
raping J.T., and she was sentenced to a term of forty years in
prison.  The following March, she pled nolo contendere to the rape
of R.T. and was sentenced to forty years in prison to be served
concurrently with the former sentence imposed.  Mr. Thompson was
also convicted of raping J.T. and received a sentence of forty
years in prison.  His conviction was affirmed on appeal.  See
Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995).  
     On September 13, 1995, appellee filed a petition to terminate
the parental rights of appellant and Mr. Thompson.  By order of
January 17, 1996, the chancellor granted the petition.  Mr.
Thompson has not joined appellant in bringing this appeal.
     The chancellor's decision was based on testimony taken at a
hearing held on December 18, 1995.  At the hearing, J.T., then age
thirteen, testified on behalf of appellee.  In his testimony, he
described what can only be characterized as unspeakable acts of
sexual abuse perpetrated by both appellant and Mr. Thompson upon
him and his eleven-year-old sister, R.T.  Further elaboration is
not necessary for an understanding of the issue raised on appeal. 
Although he denied knowledge of such acts being committed against
his younger brothers, D.T. and S.T., he testified that his parents
told him that "when they got old enough they would start doing what
they were doing to us to them."  He further testified that his
younger brothers had been mistreated.  He said that they were
beaten, hit, and kicked, and had things thrown at them.  He also
spoke of appellant selling marijuana and said that he would have to
sell it if a purchaser came by when she was not at home.
     Dr. Rebecca Floyd, a family physician, testified that she had
treated the children since 1992.  She said that they were usually
dirty and dressed in clothes that were torn and tattered.  She
testified that their appearances at the clinic were irregular but
that she had established a form of control by refusing to write the
children's prescriptions for Ritalin unless they were seen by her. 
Dr. Floyd stated that the children had improved since they had been
removed from appellant's custody in that their behavior seemed less
erratic.  She testified, however, that D.T. and S.T. continued to
have difficulty sleeping and that they suffered from recurring
nightmares.  She said that both children had repeatedly expressed
that they were afraid of their parents and that D.T., in
particular, had fears of his parents returning to get him.  Her
diagnosis was that D.T. and S.T. were suffering from posttraumatic
stress syndrome.  She testified that it would be devastating for
them to have contact with the persons responsible for causing that
condition and that their only hope was for them to be placed in a
more stable environment and to undergo intensive psychotherapy.
     Dr. Kathlene Kralik, a clinical psychologist, became involved
with the children in 1992, and she had been seeing D.T. and S.T. on
a regular basis since August 1994.  She said that D.T. and S.T.
were victims of severe maltreatment.  Her diagnosis of D.T. was
that he suffered from prolonged, chronic posttraumatic stress
disorder, child neglect, and physical abuse.  She said that it was
suspected that D.T. had been sexually abused because of certain
behaviors he exhibited.  She said that both children had been
anxious about the hearing and feared being taken from the home of
their foster mother.  She related that they had clearly,
repeatedly, and specifically stated that they never wanted to see
their parents again, even for a final visit.  In responding to a
hypothetical question based on the circumstances of the case, Dr.
Kralik said that the two younger children could not be safely
returned to the home.  She stated that the parents had a severe
character disorder that could not be treated, explaining that
research had shown that perpetrators of sexual offenses against
minors do not respond to treatment.  She said that the only
solution is to keep such persons away from children.  It was her
recommendation that the children have no further contact with their
parents.
     James Hurst, a criminal investigator with the Van Buren Police
Department, described the Thompson home.  He said that the house
was filthy and infested with cockroaches.  Clothes were strewn
throughout the house, and dirty dishes were stacked all over the
kitchen.  He testified that the house was so nasty that he had
trouble walking through it, and he felt that it was unsafe for
children to live there.
     Larry King, a case worker for appellee, testified that the
department's involvement with the family began in October of 1989,
that they were removed from the home in April of 1990 and were
returned in August of 1992.  He said that during that time a case
plan was developed and that services were provided to the family in
the forms of crisis intervention, budgeting education, homemaker
services, housing assistance, and parenting classes.  He testified
that appellant received individual counselling, joint counselling
with Mr. Thompson, and counselling with the children.  Mr. King
stated that the children were returned to the home in 1992 against
the department's recommendation because, despite the extensive
services that had been offered, they had not seen the kind of
behavioral changes they felt were necessary to ensure the safety of
the children.
     Another case worker, Michelle Treadway, testified as to her
belief that appellant's parental rights should be terminated.  She
said that appellant had not demonstrated the ability to protect the
children from future abuse.  Her opinion was also based on
appellant's participation in sexual abuse and evidence that she
allowed physical abuse to occur in her presence.  She felt that
further services would not effect rehabilitation in a timely manner
for these children.
     In her testimony, appellant stated that she had done none of
the sexual acts spoken of by J.T., nor had she seen Mr. Thompson do
any of the acts described.  She said that J.T. had given her
problems in the past and that the child must have been angry at her
for him to say those things.  She admitted that she smoked
marijuana to calm her nerves and to relieve pain from back surgery
but said that she did not sell it.  As for the condition of the
house, appellant testified that she worked eleven hours a day, five
days a week, and half days on Saturdays, and had four children who
did not want to do anything.  She said that she was presently
working on making better choices in her life and that she planned
on going to school for interior decorating when released from
prison.
     For reversal, appellant contends that the chancellor's
decision to terminate her rights in D.T. and S.T. was clearly
erroneous.  She argues that there was no evidence presented that
these two children were sexually abused or neglected in any manner,
and thus contends that appellee failed to present clear and
convincing evidence in support of its petition.  We cannot agree.
     Appellant is correct to point out that the grounds for
termination of parental rights must be proven by clear and
convincing evidence.  Ark. Code Ann  9-27-341(b) (Supp. 1995). 
When the burden of proving a disputed fact in chancery court is by
clear and convincing evidence, the question we must answer on
appeal is whether the chancellor's finding that the disputed fact
was proved by clear and convincing evidence is clearly erroneous. 
Beeson v. Arkansas Department of Human Services, 37 Ark. App. 12,
823 S.W.2d 912 (1992).  In resolving the clearly erroneous
question, we must give due deference to the opportunity of the
chancellor to judge the credibility of the witnesses.  Anderson v.
Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992).  Repeatedly our
courts have stated that there are no cases in which the superior
position, ability, and opportunity to view the parties carry as
great a weight as those involving minor children.  Norwood v.
Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).
     In terminating appellant's parental rights, the chancellor
based his decision on Ark. Code Ann.  9-27-341(b)(1) & (b)(2)(F)
(Supp. 1995).  In relevant part, the statute provides:
(b)  An order forever terminating parental
rights shall be based upon a finding by clear
and convincing evidence:
   (1)  That it is in the best interest of the
juvenile;
   (2)  Of one or more of the following
grounds:
      (F)(i)  The parent is sentenced in a
criminal proceeding for a period of time which
would constitute a substantial period of the
juvenile's life and the conditions in subdivi-
sion (b)(2)(A) or (B) of this section have
also been established.
      (ii)  For purposes of this section,
"substantial period" means a sentence, and not
time actually served, of no less than fifteen
(15) years, none of which have been suspended.
Arkansas Code Annotated  9-27-341(b)(2)(A) provides:
(A)  That a juvenile has been adjudicated by
the court to be dependent-neglected and has
continued out of the home for twelve (12)
months, and, despite a meaningful effort by
the Department of Human Services to rehabili-
tate the home and correct the conditions which
caused removal, those conditions have not been
remedied by the parent.  It is not necessary
that the twelve-month period referenced in
this subdivision (b)(2)(A) immediately precede
the filing of the petition for termination of
parental rights, or that it be for twelve (12)
consecutive months.
The stated intent of this statute is to provide permanency in a
juvenile's life in all instances where return of a juvenile to the
family home is contrary to the juvenile's health, safety, or
welfare, and it appears from the evidence that return to the family
home cannot be accomplished in a reasonable period of time.  Ark.
Code Ann.  9-27-241(a) (Supp. 1995).
     In the case before us, there is evidence that appellant stands
convicted of crimes for which she has been sentenced to a total of
forty years in prison.  This sentence constitutes a "substantial
period" of the children's lives as set out in the statute.  Also,
the children had been declared to be dependent-neglected and had
been out of the home for more than the requisite one-year period of
time.  There is further evidence that appellee's efforts to
rehabilitate the family had proved unsuccessful.  The chancellor
was also entitled to believe the testimony of J.T. and to
disbelieve that of appellant.  We also think that there is ample
evidence in the record from which the chancellor could conclude
that the safety and welfare of D.T. and S.T. would be best served
by terminating appellant's parental rights.  Our case law is clear
that termination of parental rights is an extreme remedy and is in
derogation of the natural rights of parents.  Anderson v. Douglas,
supra.  However, parental rights will not be enforced to the
detriment or destruction of the health and well being of the child. 
Corley v. Arkansas Department of Human Services, 46 Ark. App. 265,
878 S.W.2d 430 (1994).  We are unable to say that the chancellor's
findings that termination was in the best interest of the children
and that the statutory requirements had been met are clearly
against the preponderance of the evidence.
     Affirmed.
     Neal and Griffen, JJ., agree.