Sandra M. Lindsey v. Arkansas Department of Human Services

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION I

SANDRA M. LINDSEY

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA01-134

September 26, 2001

APPEAL FROM THE VAN BUREN COUNTY CHANCERY COURT

[NO. J99-43]

HONORABLE LINDA P. COLLIER, CHANCELLOR

AFFIRMED

Appellant, Sandra M. Lindsey, appeals from the chancellor's decision granting the petition of appellee, the Arkansas Department of Human Services (ADHS), to terminate Lindsey's parental rights as to her minor child born December 8, 1998. Specifically, Lindsey contends that the chancellor erred in finding that ADHS complied with Ark. Code Ann. § 9-27-341 (Supp. 1999), and that she willfully failed to provide significant support or contact with the minor child and reunification was unlikely. We affirm.

On June 9, 1999, during a search of the residence in which Lindsey was residing, police discovered a methamphetamine laboratory in the kitchen. Police arrested Lindsey, who was found in a back bedroom of the residence with her minor child. According to one officer, Afton Fletcher, who testified at the termination hearing, a terrible chemical odorpervaded the house, and the officers had to remove the suspects and ventilate the house. Fletcher testified that there was an acid fog coming from a hydrochloric acid gas generator. According to Fletcher, even though the child was in the back room with the door closed, it could have been a fatal environment for the child. Fletcher stated that even when he was standing in the hallway right outside the door of the bedroom, the fumes burned his eyes and made it difficult to breath. He concluded that anyone who brought a child into that environment would be endangering that child's life. Lindsey told Fletcher that she had been at the residence for a week. Another arresting officer, Ken Whillock, testified that the chemicals in the air created an environment that was potentially deadly for the child.

On June 14, ADHS filed a petition for emergency custody. To establish its allegations of dependency, neglect, and maltreatment, ADHS attached an affidavit that noted that the child was exposed to fumes from a methamphetamine lab. The chancellor granted the motion, finding probable cause to believe that the child was dependent-neglected and that removal of the child from Lindsey was necessary to protect the child from immediate danger. On June 29, the court entered an order adjudicating the minor child dependent-neglected. The court noted that Lindsey was still incarcerated and ordered that no visitation with the child would be permitted while she was incarcerated. She was directed to cooperate with ADHS in implementing a case plan. Lindsey was released on bond on July 9.

According to a review order filed August 23, Lindsey failed to contact the ADHS after her release and failed to comply with the case plan by contacting her child. Lindsey

also failed to appear at a review of the case. According to a review order filed January 5, 2000, the chancellor concluded that Lindsey had not complied with the case plan in that she had not contacted her child, ADHS, or the court. The chancellor noted that Lindsey was currently incarcerated. The chancellor again precluded visitation with the child while Lindsey remained incarcerated. Lindsey was ordered to cooperate with ADHS in implementing the case plan and to submit to random drug screens and complete a drug rehabilitation program. On May 1, ADHS filed a petition alleging four grounds for termination of Lindsey's parental rights. A termination hearing was held on September 6.

At the termination hearing, Lindsey testified that she was at the Department of Community Punishment in Pine Bluff because her probation on a 1997 conviction for possession of drug paraphernalia had been revoked. She testified that she would be released on January 1, 2001, and placed on parole for eleven months. She testified that she did not attempt to contact her child while she was out on bond from July to November because she "was wanted by the law" for skipping bond. Lindsey stated that she was thirty-six years old, that she had six children, and that she began using drugs at age thirty-two. During her incarceration, she had obtained a GED and had been through "all my drug courses." She admitted that in the last three years, she had resided in more than ten but fewer than twenty different homes, and though she worked from July to September of 1999, prior to her incarceration she was unemployed, and she had "quite a few" jobs in the last three years. She further testified that she had hepatitis C that she contracted from a blood transfusion in1983 and that she was being treated for "hearing voices." She admitted to using methamphetamine while she was pregnant with her child, using the drug intravenously on two occasions.

Lindsey also admitted that when she was arrested in June of 1999, there was a drug laboratory in the residence, but testified that she did not know of its presence. She stated that she knew that people were present in the home who were involved in drugs and that this was a dangerous environment for a child, but that she lived there because she had no other place to go. Lindsey further testified that she kept her child in an air-conditioned room in the bedroom of the residence because the child had asthma.

Lorna Beach, an employee of ADHS, testified that ADHS did not hear from Lindsey after she was released on bond. She further testified that the court did not allow visitation while Lindsey was incarcerated, that ADHS had been unable to provide Lindsey with services during her incarceration, and that she was not aware of what programs Lindsey participated in while incarcerated. Beach further testified that Lindsey had not attempted to contact ADHS during her incarceration.

At the conclusion of the hearing, ADHS requested that the chancellor make a specific finding that the child was dependent-neglected as a result of neglect or abuse perpetrated by Lindsey that could endanger the life of the child and that Lindsey subjected the child to aggravated circumstances. ADHS requested this finding because the officers who removed the child from the home testified about the severe fumes in the house. Lindsey responded by noting that the child was found in the back of the residence and that there was noevidence of physical distress. Lindsey also noted that there was no evidence that she knew about the methamphetamine lab. The chancellor granted ADHS's motion and specifically stated that there were aggravated circumstances.

In her October 5 order on terminating Lindsey's parental rights, the chancellor concluded that it was contrary to the child's best interests, health, safety, and welfare to return him to Lindsey's parental care and custody. The chancellor found the evidence clear and convincing that the minor child had been adjudicated by the court to be dependent-neglected and had continued out of the home for twelve months, and that despite a meaningful effort by ADHS to rehabilitate the home and correct the condition which caused the removal, those conditions had not been remedied by Lindsey. Further, the chancellor found the child dependent-neglected as a result of neglect or abuse that could endanger the life of the child that was perpetrated by Lindsey. The court also found that Lindsey subjected the child to aggravated circumstances. The chancellor further found that after the filing of the original petition for dependency-neglect, other factors or issues arose demonstrating that the return of the child to the home was contrary to the child's health, safety, and welfare, and that, despite the offer of appropriate family services, Lindsey had manifested the incapacity or indifference to remedy the issues or factors or rehabilitate herself.

On appeal, Lindsey contends that the chancellor erred in finding that ADHS complied with Ark. Code Ann. § 9-27-341, and that she willfully failed to provide significant support or contact with the minor child and reunification was unlikely. Lindsey further asserts thather incarceration alone does not justify the termination of her parental rights. While admitting that she did not make an effort to maintain a relationship with her child while released on bond, she notes that she was not afforded any services by ADHS after her confinement, that ADHS made no attempt to report her efforts regarding her rehabilitation while incarcerated, and that pursuant to the standing order of the chancellor, she was not afforded visitation of her child. Thus, she concludes that her efforts toward reunification were thwarted by ADHS.

An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B).

One such set of circumstances that may support the termination of parental rights is where the child "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 to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a). Another set of such circumstances includes where "[t]he juvenile court has found the juvenile victim dependent-neglected as a result of neglect or abuse thatcould endanger the life of the child, sexual abuse, or sexual exploitation, and which was perpetrated by the juvenile's parent or parents." Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a). These circumstances also include where it is shown that after the filing of the original petition for dependency-neglect, "other factors or issues arose which demonstrate that return of the juvenile to the family home 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 which prevent return of the juvenile to the family home." Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). These circumstances further include where the parent is found by a court of competent jurisdiction to "[h]ave subjected the child to aggravated circumstances." Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3).

We will not reverse the trial court's evaluation of the evidence unless the court's finding of clear and convincing evidence is clearly erroneous. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 357, 990 S.W.2d 509, 511-12 (1999). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 621, 12 S.W.3d 204, 208 (2000). We defer to the chancellor's evaluation of the credibility of the witnesses. Wade, 337 Ark. at 357, 990 S.W.2d at 512.

While the chancellor provided four separate grounds for termination of her parental rights, the statute only requires that one of any of the enumerated grounds be proven. See Wade, 337 Ark. at 359, 990 S.W.2d at 513. In her argument on appeal, Lindsey does notchallenge the chancellor's findings that there were aggravated circumstances or the chancellor's finding the juvenile victim dependent-neglected as a result of neglect or abuse perpetrated by Lindsey that could endanger the life of the child. Without considering the other two factors found by the chancellor, these two uncontested grounds provide support for termination of Lindsey's parental rights. As found by the chancellor, Lindsey's keeping the minor child, who we note suffered from asthma, in a residence used as a methamphetamine laboratory where, we also note, police found a fog of acid gas, amounted to neglect or abuse that could endanger the life of the child. Thus, we cannot say that the chancellor's termination of Lindsey's parental rights was clearly erroneous.

Affirmed.

Pittman and Roaf, JJ., agree.