Tammy (Mynes) Iburg and Clement Aucoin v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

TAMMY (MYNES) IBURG and

CLEMENT AUCOIN

APPELLANTS

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA00-917

July 5, 2001

APPEAL FROM THE FAULKNER COUNTY CHANCERY COURT

[NO. J-97-435]

HON. LINDA P. COLLIER,

CHANCELLOR

AFFIRMED

The parties in this termination-of-parental-rights case are the natural parents of three young children, ages six, five, and four. The children are illegitimate and were living with the mother, a woman in her early 20's who has been jailed several times for various offenses, including multiple hot check charges. These incarcerations, together with the father's absence and her inability to hold a job or maintain a fixed address for any appreciable length of time, led to neglect of the children and ADHS became involved. The children were in foster care and were returned to the mother on several occasions, but invariably a new crisis intervened resulting in the children being removed from the home, returned, and removed again. This pattern was repeated while ADHS offered financial, transportation, counseling,

and other services to the mother but, after several years of failed efforts, ADHS recommended termination of parental rights so that the children could be adopted. At this point the natural father became involved in the proceedings, seeking preservation of his parental rights and custody of the children. After two hearings, the chancellor ordered that the parental rights of both parents be terminated.

Both parents appeal, arguing that the chancellor erred in failing to require ADHS to disclose the identities of the foster parents pursuant to the mother's discovery request; in allowing ADHS to call the stepfather to testify when he had not been named as a witness in ADHS's response to the mother's discovery request; in admitting court-ordered psychological evaluations without authentication and where they had not been provided pursuant to discovery requests; in terminating parental rights in the absence of clear and convincing evidence that the parents had not remedied the conditions causing removal of the children and that termination of parental rights was in the children's best interest; in failing to make findings necessary to support termination; and in ordering that appellants be precluded from further contact with their children following termination of parental rights. We affirm.

For the sake of clarity, we first address appellants' contention that the trial court erred in terminating parental rights in the absence of clear and convincing evidence that the parents had not remedied the conditions causing removal of the children and that termination of parental rights was in the children's best interest. The purpose of the termination-of-parental-rights statutes is to provide permanency in a child's life where thereturn of the child to the family home is contrary to his or her health, safety, or welfare, and where it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3) (Supp. 1999). Although it is recognized that termination of parental rights is an extreme remedy in derogation of the natural rights of the parents, the primary consideration in these cases is the best interest of the child, and parental rights should not be allowed to continue to the detriment of the child's welfare. Dinkins v. Arkansas Department of Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001).

Appellants' parental rights were terminated pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Supp. 1999), which allows a chancery court to enter an order terminating parental rights if the court determines by clear and convincing evidence that it is in the best interest of the child; the child has been adjudicated dependent-neglected; the child has remained out of the home for twelve months; and, despite a meaningful effort by ADHS to rehabilitate the home and correct the conditions that caused removal, those conditions have not been remedied by the parent. When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the question on appeal is whether the chancellor's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Malone v. Arkansas Department of Human Services, 71 Ark. App. 441, 30 S.W.3d 758 (2000). In determining whether the chancellor clearly erred, we give a high degree of deference to the chancellor's far superior position to observe the parties before him and judge the credibility of witnesses. Dinkins v. Arkansas Department of Human Services,supra; Larscheid v. Arkansas Department Of Human Services, 343 Ark. 580, 36 S.W.3d 308 (2001).

The testimony at trial shows that the parties have failed to provide stable living conditions and support for the children. The children's mother testified that, since 1996, she has had approximately one dozen jobs, one dozen different residences, and six incarcerations. The children's father, who left the mother and children early in 1997, has had minimal contact with the children since then and has never paid child support.

ADHS became involved with this case in 1996 when it was reported that the mother was leaving the three infants alone in a motel room by themselves while she went to work. ADHS helped the mother obtain adequate housing; however, she soon lost that housing and left the children with an acquaintance while she went elsewhere. ADHS picked the children up from the acquaintance's home, which smelled of feces, and found that the children were covered with insect bites and scabies. The children were returned to the mother, who then took the children to live with her at the home of a friend as ADHS began searching for housing for them. Soon thereafter, the children were placed in foster care because the mother was arrested on outstanding warrants. The children were returned, and were reunited with the mother in a Housing Authority apartment. By the next month, the mother was unemployed; within six months, one of the children again was placed in foster care due to medical neglect when she was left with a neighbor while the mother went to Louisiana. The next month, the mother left the children with her own mother, Mrs. Teas. Mrs. Teas applied for guardianship, stating that the mother had threatened to take the children hitchhiking withher, and that she did not know where the mother was. Although she had been granted guardianship, Mrs. Teas moved out of town approximately seven months later, leaving the children with the mother. One month later, the mother was again arrested and incarcerated, and the children were returned to foster care.

No useful purpose would be served by detailing the remaining evidence of incarcerations, job loss, neglect, and foster care placements that followed. Suffice it to say that the chancellor did not clearly err in finding that termination of parental rights was in the children's best interest and that, despite assistance from ADHS in the form of food baskets, housing and utility assistance, transportation, home visits, parenting classes, foster care, home studies, and psychological evaluations, appellants have failed to remedy the conditions causing removal.

Appellants next contend that the chancellor erred in failing to require ADHS to disclose the identities of the foster parents pursuant to the mother's discovery request. We do not agree. A discovery motion must be considered in light of the particular circumstances that give rise to the request and the need of the movant for the information requested, and we will reverse a trial court's ruling on such a motion only when there has been an abuse of discretion. Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998). Because of problems that arose in the course of the present case, an order was entered specifically forbidding either parent from having any contact with the foster parents. Furthermore, the legislature has, by statute, directed that cases histories and other materials compiled by a state agency in placing a child are to remain confidential. Ark. Code Ann. § 9-28-407(h) (Supp. 1999). Finally,even assuming that the confidentiality statute did not preclude discovery of the foster parents' identities, that information was utterly irrelevant to the issues being tried at the termination hearing. Appellants contend that they were entitled to show that termination of parental rights was not in the children's best interest by demonstrating that the foster care provided by ADHS was no more stable than the environment provided by the parents. However, by its very nature, emergency foster care is not intended to provide a stable, long-term environment, but instead serves the more limited need of removing children from a situation of immediate danger. The question at the termination hearing was not whether any particular foster parent is more or less fit than the parents, or whether the foster care already provided by ADHS was in the children's best interest; but instead was whether the parents are unfit and whether termination of the parental relationship in order to provide stability through permanent adoption is in the children's best interest. The children's prospects for adoption in general are relevant to the latter issue, but the relative merits of the natural parents and temporary foster parents have nothing to do with this question. In the absence of any specific indication that the children were threatened by any malicious, willful, wanton, or grossly negligent acts or omissions of the foster parents, we hold that the chancellor did not abuse her discretion in denying the mother's discovery request. See Ark. Code Ann. § 9-28-407(i) (Supp. 1999).

Next, appellants contend that the chancellor erred in allowing ADHS to call the mother's current husband to testify concerning his criminal history when he had not been named as a witness in ADHS's response to the mother's discovery request. We find noprejudicial error. Although appellants argue that they were surprised that ADHS called the stepfather as a witness, we note that the father was not prejudiced by this testimony and the mother cannot reasonably maintain that she was surprised by information regarding the background of her own husband who, by her own testimony, she had known even before the children were born. Given that the witness was hardly a stranger to the proceedings, we think that any conceivable surprise resulting from appellee's failure to identify the stepfather as a potential witness could have been cured by a brief recess or at most a continuance, but this was never requested. See Parham v. State, 262 Ark. 241, 555 S.W.2d 943 (1977).

Appellants also argue that the chancellor erred in admitting a court-ordered psychological evaluation of the stepfather without authentication and where it had not been provided pursuant to discovery requests. As we noted above, the introduction of evidence relating to the stepfather had no bearing on the termination proceeding against the natural father. Furthermore, a review of the report indicates that its introduction was not prejudicial to the mother. The examiner opined that the stepfather was of average intelligence, free of psychopathology or emotional disorder, that he seemed to care very much for the children, and that there was nothing in the test data to suggest that he would be a negative influence on the children. We do not reverse in the absence of prejudice. Arkansas Valley Electric Cooperative Corp. v. Davis, 304 Ark. 70, 800 S.W.2d 420 (1990).

Appellants next contend that the chancellor erred by failing, in her ruling from the bench, to make the findings required to terminate parental rights. We find no error becausethe requisite findings were included in the written order. See Morrell v. Morrell, 48 Ark. App. 54, 889 S.W.2d 772 (1994).

Finally, appellants contend that they should not be prohibited from future contact with the children because, although the written order precludes such contact, the chancellor stated from the bench that such contact would be permitted. We do not agree. Where the chancellor's ruling from the bench was not reduced to writing and filed of record, she was free to alter her decision upon further consideration of the matter. Id.

Affirmed.

Bird and Neal, JJ., agree.