Charles Conn, Sr. and Sherry Conn v. Arkansas Department of Human Services

ca01-536

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

CHARLES CONN, SR. and SHERRY CONN

APPELLANTS

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLEE

CA 01-536

May 8, 2002

APPEAL FROM THE POPE

COUNTY CHANCERY COURT

[J-2000-01]

HONORABLE KENNETH DAVID

COKER, JR.

JUDGE

AFFIRMED

In an order entered February 5, 2001, the parental rights of Charles and Sherry Conn, appellants herein, were terminated as to their son, Charles Conn, Jr., born November 7, 1998.1 The Conns have appealed this order, arguing that there is insufficient evidence to support the decision to terminate their parental rights. We disagree, and we affirm the termination of the Conns' parental rights.

On January 3, 2000, a petition for emergency custody of Charles, Jr., was filed by the Arkansas Department of Human Services (DHS) alleging inappropriate clothing for the weather, inadequate supervision, and environmental neglect; the petition was granted by the court on that same day. A hearing was held on January 6, 2000, and the child was

adjudicated dependent/neglected. A review hearing was conducted on January 27, 2000, and the court found that it was in the best interest of Charles, Jr., that he remain in the custody of DHS. Appellants were given supervised in-home visitation and ordered to submit to a psychological evaluation, complete parenting classes, attend counseling, maintain a clean and safe home environment, maintain transportation, and maintain gainful employment. DHS was ordered to provide transportation for appellants to parenting classes, counseling, and visitation upon twenty-four-hour notice from appellants.

A subsequent review hearing was held on March 23, 2000, and the judge ordered that Charles, Jr., remain in the custody of DHS. On May 11, an order was issued directing appellants to appear in court and show cause why they had failed to comply with the court's orders. On that same day, DHS also filed a motion to set a permanency planning hearing in this matter. At the May 31, 2000 hearing, the judge found that both appellants were in contempt of court for failure to submit to psychological examinations and further found that it was in Charles, Jr.'s best interest for custody to remain with DHS. A permanency planning hearing was scheduled for October 13, 2000, and DHS filed a petition for termination of parental rights on October 19, 2000. In the permanency planning order filed October 27, 2000, the judge found that appellants had not complied with the terms of the case plan or the orders of the court and that it was in the best interest of the child to remain in the custody of DHS; he further ordered that DHS develop an appropriate permanent plan for the child.

The hearing on the petition to terminate parental rights was held on January 24, 2001. At that hearing, Dr. Paul DeYoub, a clinical psychologist, testified that he did not believethat appellants were prepared to care for a nineteen-month old child and therefore recommended against placing the child back with them. He was concerned that appellants would be unable to provide an adequate environment for Charles, Jr., and he would continue to be at risk for lack of care and environmental neglect. It was his opinion that reunification could not occur without placing the child at a substantial risk. He diagnosed Charles, Sr., with borderline personality and personality disorder and Sherry with a depressive disorder and a personality disorder. Dr. DeYoub stated that because appellants' evaluation results were so poor, reunification could not occur unless there had been demonstrated improvement for six months to a year, and appellants would need to undergo intensive parenting counseling and training to allay his concerns.

Paula Rice, appellants' current DHS case worker, testified that she was also the initial case worker at the time appellants' file was opened. She said that appellants made very minimal progress and fought constantly, and she had trouble locating them at times. She said that although the current home was adequate, it was minimally furnished, and the children's room was by no means complete with items needed for two young children. Although there was food in the house, the only heat in the home was from a small electric heater. Rice said that although she had only had the case for several weeks, Charles had reported having two different jobs, and he still did not have a driver's license.

Richard Westover, appellants' former case worker, testified that prior to Charles, Jr., being placed in foster care, appellants had extensive involvement with economical and family services, and they exhausted these services without achieving very much exceptfrustrating the provider of services. Westover stated that Charles "bounced" from job to job, and although Sherry had remained employed for a longer period of time, she had also quit the job that she had held for approximately one year. He said that appellants were homeless for a substantial period of time, and they failed to cooperate with a court order requiring them to submit to psychological evaluations. Westover said that appellants were provided a vehicle after the transportation services that were made available to them refused to transport them because of their attitudes, but they still did not make scheduled appointments, and attempts to provide transportation by the DHS staff were also frustrated. Sherry had a driver's license, but Charles did not have a license, and they both had been driving the car without tags and insurance. Westover testified that although visitation was consistent in the beginning, it decreased after a number of weeks. He expressed his concern with appellants' lack of cooperation with DHS and the lack of progress, and he opined that regardless of what additional services were offered to appellants, they would still present a threat to their child. He said that he had not found anything very positive in his experience with appellants.

Gail Howard, a former employee of DHS, testified that there was little compliance with the case plan by appellants. She said that appellants would never follow through and allow a support specialist to assist them in seeking employment, and it was difficult for them to obtain housing when they did not work, had no money, and had "burned their bridges" with the housing authority. She stated that when she had the case, appellants basically had no place to live, and there was no progress in any area, including counseling, housing, or employment. She stated that if appellants had shown any kind of improvement, she wouldhave continued to work with them, but they had been given every opportunity and had chosen not to take advantage of them.

Melody Helton, a family support specialist with DHS, testified that sixty-six visitations were scheduled from the adjudication to the permanency planning hearing, and appellants had completed only thirty-nine of those visits. She said that the interaction during those visits ranged from good to very limited.

Betty Horton, a DHS adoption specialist, testified that the likelihood of adoption was very good, indicating that the foster parents had expressed an interest in adoption. Dana Baker, Charles, Jr.'s foster mother, echoed this sentiment.

Charles Conn, Sr., testified that he had lived at the same address for seven months, but he also stated that his residence was scheduled to be torn down when a new highway was built. He said that he had two jobs, one assembling motorcycles and another as a roofer. However, on cross-examination, he admitted that he had not started either job as of the date of the termination hearing. He said that all of his bills were current, and he stated that he used portable electric heaters and the oven for heat. He said that although he was supposed to be taking Effexor three times per day, he was only taking it once a day because his supply was "running low." He asserted that the vehicle still did not have tags because he was trying to catch up on his other bills first, but he admitted that he did have a satellite system for which he paid thirty dollars per month. He also still had not obtained his driver's license.

Sherry Conn testified that she was working at Price Chopper making $5.50 per hour and would get benefits in ninety days. She admitted that she had last attended counseling in November, but she said that she had to quit because she could not afford to go, even though she had not been released from her counselor's care. She said that she did not show the children's items to Ms. Rice because she did not ask to see them, and she admitted that she had shown Ms. Rice a card for insurance when she had not actually obtained any insurance. In the order terminating the Conns' parental rights, the trial judge made in part the following findings:

The Court has considered and reviewed all the evidence submitted and the testimony of the witnesses in this matter, and finds it in the best interest of the juvenile to grant the Petition of the Department of Human Services and hereby terminates all parental rights between Sherry and Charles Conn, Sr., and Charles Conn, Jr.

The Court finds it to be contrary to the child's best interests, health and safety, and welfare to return him to the parental care and custody of his parents, and further finds that the Department of Human Services has proven by clear and convincing evidence that:

the minor child has been adjudicated by the Court to be dependent-neglected, and has continued out of the parental home of the parents for twelve months, and despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parents.

the juvenile has lived outside the home of the parents for a period of twelve months and that Sherry and Charles Conn, Sr. have willfully failed to provide significant material support in accordance with their means or maintained meaningful contact with the child.

subsequent to the filing of the original Petition for Dependency/Neglect, other factors or issues have arisen whichdemonstrate return of the juvenile to the parents is contrary to the juvenile's health, safety or welfare. Despite the offer of appropriate family services, the parents have manifested incapacity or indifference to remedy the subsequent issues or factors or rehabilitate their circumstances which prevent the return of the juvenile to the parents.

The Court finds that the Arkansas Department of Human Services, throughout this matter, has made reasonable efforts to reunite this family.

The reasons enumerated in paragraph four of the trial judge's order are all statutory bases for termination of parental rights. See Ark. Code Ann. § 9-27-341(b)(3)(B)(i), (ii), & (vii) (Repl. 2002). However, only one ground is necessary to terminate parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B).

In Bearden v. Dep't Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001), our supreme court, citing Ullom v. Dep't Human Servs., 340 Ark. 615, 12 S.W.3d 208 (2000), set forth the well-settled standard of review in cases where parental rights have been terminated:

We have held that 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. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence. 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. 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. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. 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.

344 Ark. at 328, 42 S.W.3d at 403-04 (citations omitted).

On appeal, appellants maintain that they had complied with the orders of the trial court and the DHS case plan by obtaining and maintaining employment and a residence, and the trial court therefore erred by terminating their parental rights. We cannot agree. At the time of the termination hearing, Sherry had been employed for a period of one month, and although Charles said that he had two jobs, he admitted on cross-examination that he had not started either one as of the date of the termination hearing. Although appellants had lived at their current address for seven months, Charles's own testimony indicated that the apartments were slated to be demolished when a new highway was constructed.

Charles, Jr., had been out of appellants' home for more than twelve months, and

there was an overwhelming amount of evidence presented that although DHS had provided numerous services to appellants, they had never taken advantage of the opportunities presented to them but had instead simply frustrated the agencies attempting to provide the services. Charles testified that the vehicle that DHS had provided had still not been licensed and he had not obtained a driver's license, but he did have a satellite system for which he paid thirty dollars a month. Sherry admitted that she had stopped attending counseling sessions even though she had not been released by her counselor. Appellants were both held in contempt by the trial court for failing to undergo court-ordered psychological evaluations. Dr. DeYoub's testimony indicated that he did not believe that reunification could occur without substantial risk to Charles, Jr., unless appellants could demonstrate improvement over a prolonged period of six months to one year, and Richard Westover opined that regardless of what additional services were offered to appellants, they would still present athreat to their child. Based on the foregoing evidence, we cannot say that the trial judge was clearly erroneous in terminating appellants' parental rights.

Affirmed.

Pittman and Roaf, JJ., agree.

1 The appellants have a daughter, Kristina, born October 18, 2000, who is also in the custody of the Arkansas Department of Human Services but who is not involved in this appeal.