Mollie Randle Childers v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CA 01-140

November 28, 2001

MOLLIE RANDLE CHILDERS APPEAL FROM ST. FRANCIS COUNTY

APPELLANT CHANCERY COURT, JUVENILE DIVISION

VS.

HONORABLE BAIRD KINNEY,

CHANCERY JUDGE

ARKANSAS DEPARTMENT

OF HUMAN SERVICES

APPELLEE AFFIRMED

Mollie Childers appeals from an order of the St. Francis County Chancery Court terminating her parental rights to her son, A.R. She contends here that the trial court erred in admitting hearsay in reliance on an exception, that the trial court erred in not allowing her to cross-examine a witness on a key issue, and that the termination of her parental rights is not supported by clear and convincing evidence. We find no reversible error and affirm.

Appellant suffers from mild mental retardation and was herself taken from an abusive home. Appellant gave birth to A.R. while she was in foster care, and she left him in foster care when she reached majority. At the time of trial appellant was married to Jermaine Childers, living in a one-bedroom apartment, and was drawing $525.00 per month in social security benefits while her husband worked sporadically.

Lisa Earls, a child abuse investigator, testified that she went to the Childers's home to interview the couple about an allegation of sexual abuse on A.R. perpetrated by appellant's husband. Earls stated that when she arrived at the residence around noon on a weekday, the couple was still in bed. According to Earls appellant then told her that she did not want to be interviewed and to take her "monkey ass" home. Earls testified that Mr. Childers and appellant got into "a slight argument" and that Mr. Childers was telling appellant that it was okay to talk to her. Earls stated that she interviewed Mr. Childers in her car but that appellant still refused to speak about the allegations.

Lesha Coleman, another investigator, testified that she interviewed A.R., then age five- or six-years-old, about a statement he made to his foster mother about Mr. Childers. Coleman stated that A.R. told her that Mr. Childers made him bend over and that Mr. Childers then stuck his finger inside him with toilettissue over the finger. Coleman added that A.R. stated that he was in the kitchen when this happened, that appellant was present, and that it had happened twice.

Mary Hunter Davis, A.R.'s foster mother, testified that the day after A.R. visited appellant's home, she was called to pick him up from school. She said he seemed scared and nervous and that the child indicated that he discovered in the bathroom that he was bleeding from the rectum. Davis stated that when she asked A.R. what had happened, he told her that Mr. Childers had "stuck something in his hole." Davis testified that A.R.'s behavior at school worsened after the bathroom incident. She said he was stealing money from the teacher's drawer and was fighting with other students.

Jordan Redd, A.R.'s case manager, testified that A.R. had "tremendous problems" in school. Redd stated that A.R. threw a pencil that hit his teacher in the back after the teacher had disciplined him. Redd testified that he had been told by a school official about A.R.'s inappropriate dancing of a sexual nature. Redd thought that it was in A.R.'s best interests to terminate appellant's parental rights because A.R.'s needs were currently being met and because A.R. always had problems after visiting with appellant.

Donna Sanford, family service worker for DHS, testified that appellant had poor hygiene and inconsistent housekeeping skills. Sanford stated that appellant often did not have food for A.R., that beer cans sat within the child's reach, and that there were always a lot of people in the one-bedroom apartment. Sanford testified that she did not think that it was safe for A.R. to return to appellant's home because of the way appellant acted toward the allegation of abuse involving appellant's husband. Sanford said that appellant "flew off the handle" and was "just so adamant that [A.R.] was telling a lie." She testified that appellant did not seem concerned about A.R. and did not ask how he was doing or whether he had gone to a doctor. Sanford said that appellant's efforts at reunification had been minimal.

Appellant testified that although she had appointments for counseling and parenting classes, she had missed some because she had slept through them. She admitted that she had had "an attitude" regarding the classes and that she would not talk about things that made her mad. She stated that she thought she had completed parenting classes but that she was willing to go through them again because she had forgotten half of what she had learned. Appellant stated that she thought she could take care of A.R. but that she still needed help from DHS. She testified that she does not have a car and that A.R. would not have his own bedroom at herplace. Appellant admitted that she did not have enough money to support A.R.

In a letter opinion terminating appellant's parental rights to A.R., the chancellor found that appellant had not demonstrated good faith in her efforts at reunification in her exclamation to Earls during the investigation into the allegation of sexual abuse. The court also noted that there had been a loss of quality in A.R.'s behavior and that there was a direct link between his poor behavior and his visits with appellant. The court also found that it was the opinion of the child's therapist that the permanency of an adoption could benefit A.R. Finally, the court noted that appellant had failed to provide minimum sufficient housing and financial resources, that she had failed to maintain proper personal and household hygiene, that there were safety concerns because of the crowds of people and beer cans sitting around, and that appellant had failed to attend staffing relative to the goal of reunification with her son.

Appellant first argues that Lesha Coleman's testimony relating the child's description of his abuse by Mr. Childers was hearsay and did not fall within the excited utterance exception. While we agree that the court erred in admitting the testimony, the error was not prejudicial, nor grounds for reversal, because it was cumulative to other evidence in the case. Ms. Davis gave essentially the same testimony and the trial court's admission of that testimony is not challenged on appeal. Furthermore, Lisa Earls testified that the allegations of abuse against Mr. Childers were "substantiated."

Appellant's second argument is that the trial court erred in restricting her cross-examination of Donna Sanford when she sought to explore the department's efforts to accommodate her under the Americans with Disabilities Act. The court ruled that appellant could raise the matter in her case-in-chief.

On appeal appellant argues that the trial court's ruling improperly shifted the burden of proof. This argument was not made to the trial court and we need not address it further. Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). In deciding whether to permit a question on cross-examination the trial court ought not to be unduly restrictive. Here the trial court did not forbid the examination but instead deferred it to later. Under Rule 611 of the Arkansas Rules of Evidence the court is entitled to exercise reasonable control over the mode and order of interrogating witnesses. The test, generally, is whether the trial court has abused its discretion. See Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). We find no abuse of discretion here. A further impediment to appellant's argument is that she neither called the witness for examination in her case-in-chief normade a proffer of the witness's expected testimony. See Duque v. Oshman's Sporting Goods-Services, Inc., 327 Ark. 224, 937 S.W.2d 179 (1997).

Appellant's final argument is that the evidence was insuffi cient to justify the trial court's decision to terminate her parental rights. This argument is expressly and solely based on the premise that the court committed reversible error in admitting the testimony of Lesha Coleman and in restricting her cross-examination of Ms. Sanford. Because we find no reversible error on either of these grounds, we must reject appellant's final argument. Affirmed.

Bird and Roaf, JJ., agree.