Wendy Reed and Randall Reed v. Arkansas Department of Human Services

ca01-833

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA01-833

JUNE 26, 2002 WENDY REED

RANDALL REED AN APPEAL FROM THE WHITE APPELLANTS COUNTY CHANCERY COURT

v. [J-99-70]

ARKANSAS DEPARTMENT OF HONORABLE ROBERT EDWARDS,

HUMAN SERVICES JUDGE

APPELLEE

AFFIRMED

Wendy and Randall Reed appeal an order of a White County trial court terminating their parental rights with respect to their four minor children. On appeal, appellants assert that the trial court erred in its finding that they manifested an incapacity and an indifference to remedy their familial situation and that the Department of Human Services (DHS) had provided the statutorily-required and court-ordered services. We hold that the decision to terminate appellants' parental rights must be affirmed.

Appellants are the natural parents of four children, W.R., R.R., G.R., and S.R. On April 13, 1999, DHS filed a dependency-neglect petition, and on June 1, 1999, it filed a petition for emergency custody of R.R. All four children were adjudicated dependent-neglected on June 3, 1999. On July 12, 1999, DHS filed an emergency petition and tookcustody of the children. DHS filed a petition for termination of appellants' parental rights on February 1, 2001. A White County trial court ordered appellants' rights terminated on April 5, 2001, and it is from this order that appeal is taken.

The standard of review in termination cases is well-settled.

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 [trial] court to judge the credibility of the 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.

Bearden v. Dep't of Human Serv., 344 Ark. 317, 328, 42 S.W.3d 397, 403-04 (2001) (citing Ullom v. Dep't of Human Serv., 340 Ark. 615, 12 S.W.3d 208 (2000)) (citations omitted). Arkansas Code Annotated section 9-27-341(b)(1)(3) (Repl. 2002) provides, in part, that an order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

(A) That it is in the best interest of the juvenile, including consideration of the following factors:

(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and

(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents;

(B) Of one (1) or more of the following grounds:

(i)(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 to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.

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(vii)(a)That, subsequent to 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.

The legislative intent, as stated in section 9-27-341,

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 a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective.

In its termination order, the court provided:

4. The Court finds it to be contrary to the children's best interests, health and safety, and welfare to return them to the parental care and custody of their parents and further finds that the Department of Human Services has proven by clear and convincing evidence that: There was a total lack of appropriate supervision by the parents that caused the children's removal. Subsequent to the removal and psychological testing, it was determined that both Wendy Reed and Randall Reed, Sr., suffer from mental deficiencies. The Department has shown by very clear and convincing evidence that the mother, Wendy Reed, cannot provide appropriate parental supervision even though she has had almost two years to correct this problem and Randall Reed, Sr., says there is nothing wrong with him two years into the case where clearly there are problems he needs to work on. The parents should have stepped up to the plate and taken responsibility to do what they needed to do to get their children back. Randall Reed, Sr., has not taken the necessary steps to move the case towards reunification. Nothing has changed in this case since the children came into foster care back in 1999. The parents have never demonstrated to the court that the court can safely send the children home on longer, overnight visits.

***

The Department has proven, by clear and convincing evidence, that the juveniles have been adjudicated by the court to be dependent-neglected and have continued out of the home for more than twelve 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 parents.

The Department has proven, by clear and convincing evidence, that subsequent to the filing of the original petition for dependency-neglect, other factors and issues arose which demonstrated that return of the children to the family home is contrary to the juveniles' health, safety, and welfare. Despite the offer of appropriate family services, Wendy Reed and Randall Reed, Sr., have manifested the incapacity and indifference to remedy the subsequent issues and factors nor have they rehabilitated the circumstances which prevent return of the juveniles to the family home. The court finds both parents suffer from both emotional illness and mental deficiencies.

There is no dispute that the children were adjudicated dependent-neglected on June 3, 1999, that they continued out of the home for more than twelve months, and that the conditions causing their removal from the home had not been remedied at the time of termination. Appellants argue on appeal, however, that the trial court erred because DHS failed to prove by a preponderance of the evidence that they manifested an incapacity and indifference to remedy their familial situation. We disagree. There is clear and convincing evidence found in the record to support these findings, and we can go to the record to affirm the trial court's decision. See Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995).

During the June 3, 1999, adjudication hearing, DHS child maltreatment investigator, Kim Johnston, testified that prior to living in White County, the Reed family resided in Lawrence County, where DHS had an ongoing relationship with the family. Johnston indicated in her affidavit that in April of 1999, DHS received a complaint of neglect on the Reed family, alleging that the oldest child, W.R., age seven, was found in bed with his sister,G.R., age five, "touching and hunching on her." The affidavit provided that there had been a problem with the children "not being supervised," and that since 1993, there had been seventeen prior reports on the family, seven of which had been "founded" for physical abuse and neglect.

Johnston testified that she talked with appellants at great length about ensuring that the children were not left unsupervised. DHS had documented an unsubstantiated complaint in February of 1999 and substantiated complaints for lack of supervision in March and April of 1999. It was not until the incident between the children that Johnston decided to file the twenty-day petition for a court ordered protective services case. Johnston further testified that on

[February 12, 1994], there was a founded complaint for neglect. On [September 7, 1994], there was a founded complaint for neglect. On [May 22, 1995], there was a founded complaint for neglect. On [September 23, 1996], there was a founded complaint for physical abuse. On [March 25, 1999], there was a founded complaint for neglect. On [April 4, 1999], there was a founded complaint for neglect and failure to protect. There is one still pending from law enforcement back in [May 12, 1997], for sexual abuse that's key to law enforcement and it's still pending [sic].

Additionally, Phyllis Pollard, a certified case manager, testified at the June 3, 1999, hearing that

[w]hen Mrs. Reed is on her medication she's a joy to be around. I like both parents real well, but she's happy [sic]. She's content. The children were content.... Off medication, she's suicidal. She's very nervous. She gets upset real easy, frustrated, at times makes bad judgments [sic]. The children are kind of at home wild running [sic]. They don't really pay attention to either parent at that time on discipline and danger [sic]. You know, it's just an uncontrolled environment.

Also in June of 1999, DHS filed a petition for emergency custody of R.R. The factsindicate that on May 27, 1999, an on-call worker for DHS received a call from the Searcy Police Department in reference to R.R. The parents had called the police department at 6:14 p.m. to report a missing child. Searcy Police, the White County Sheriff's Office, and Arkansas State Troopers conducted a search for the child, who was found approximately two miles from the residence that the family was visiting in Searcy. Wendy Reed had reported that she noticed R.R. missing about 4:00-4:30 p.m., and that she and other people were looking for the child, but had no success in finding him. Ms. Johnston testified at the June 3, 1999, hearing, that Mrs. Reed said that "Mr. Reed was working on [a] vehicle," and when Mrs. Reed could not find R.R., "Mr. Reed and the other children started looking for him." The Searcy Police Department found R.R. at 6:15 p.m. To ensure the child's safety, a seventy-two-hour hold was placed on him. Johnston acknowledged that DHS had previously filed a dependency-neglect petition in 1996, and that "Mr. Reed had come in and asked for a supportive service case to be opened on his family [sic]." Ms. Johnston further testified that there was a substantiated complaint of neglect on November 4, 1993, finding that Randall Reed had given beer to his son W.R.

Following the hearing, the court ordered that appellants (1) cooperate with DHS, DDS, and any other agency offering appropriate services to the family; (2) pursue and obtain medical coverage for the children; (3) make W.R. available for a psychosexual evaluation; (4) make W.R., G.R., R.R., and S.R. available for counseling; (5) attend family and individual counseling; (6) attend and complete a marriage counseling program; (7) maintain utilities in the home; (8) provide appropriate supervision for the children at all times; (9)participate in and complete budgeting skills; (10) cooperate with the Social Security Administration to address the problem of getting the juveniles' SSI reinstated and take the necessary steps to do so; (11) follow up on any medication that the doctor prescribed once it was determined whether or not Wendy was pregnant; (12) have G.R. and S.R. attend community school; (13) protect all the children from W.R.; (14) follow all court orders; (15) sign any needed releases of information; and (16) cooperate fully with the intensive family services. The children were also adjudicated dependent-neglected.

On June 22, 1999, DHS filed a report with the court. The report indicated that the family home had electricity, but did not have water service or a septic sewer system. The family hauled water from a nearby store for drinking, bathing, and washing clothes. Mrs. Reed did not have reliable transportation, thus, DHS assisted her. On July 12, 1999, DHS filed a motion for ex parte emergency change of custody. In the supporting affidavit, it was attested to that on July 7, 1999, Nancy Van Patten, an intensive family services specialist, had transported the family to various medical appointments and errands. Upon return to the family home, Mrs. Reed

became enraged and very violent. Mrs. Reed saw that the home was messy and began screaming, crying, and cursing. [She] pulled the oven door off the hinges and threw it across the kitchen. With her arms and hands[,] Mrs. Reed threw everything[,] including glassware off the large kitchen bar. Then[,] Mrs. Reed pulled the counter top off the bar and threw it across the kitchen table. [She] went down the hallway screaming and crying and stated she had told Mr. Reed she did not want any more children after [W.R.] and that Mr. Reed had refused to wear a condom to prevent pregnancy. [She] screamed that she hated herself, hated her life, and wished she were dead. Mrs. Reed came back to the kitchen still screaming and kicked dents into the dishwasher and threw a glass across the kitchen and it hit the wall and broke.

At the hearing, Ms. Van Patten further testified that she was trying to get the children out of the house, including Mrs. Reed's teenage niece and her friend who were babysitting W.R., G.R., and S.R. She stated

[m]y car was parked a good distance from the home, and I went to my car. The children were out in the yard away from the home. I called a supervisor at DHS to inform them of the activity and what was happening.... I was in and out of the car trying to make phone calls and talk to Beverly Brown. She paged me back in just a little while and told me to go ahead and take the children into custody. In the meantime, I was calling law enforcement for some assistance. During this time, Mrs. Reed's niece and her friend had hidden underneath her porch as protection I suppose to get away from Mrs. Reed. And the children and I were out in the yard.

Before law enforcement got there, Mr. Reed drove up. He was just getting home from work. Mrs. Reed was continuing to curse and walk up and down the yard. And Mr. and Mrs. Reed went in and out of the home several times. Mrs. Reed got in the car and stated that she was leaving, and at one point she thought she had keys, and at another point, she thought she didn't have keys for the car. By the time Deputy Wendy Landis got there, she and I went in the home and with Mr. and Mrs. Reed. At that point in time, the oven door was back on the stove and the bar top was back on the bar and some of the mess had been cleaned up at that point.... She said that she hated herself, she hated her life, she wished that she was dead.

In a subsequent court report, family service workers, Nancy Van Patten reported that the family still resided in their mobile home absent water connections or a sewage system. The report further provided that Mr. Reed had signed an agreement with the Social Security Administration to begin repayment of money misused in 1998 from W.R.'s Social Security checks. Mrs. Reed was paying fines in municipal court for fictitious tags and failure to appear and fines in circuit court for possession of a firearm. During a visit with the children at the DHS office, Mrs. Reed became upset with W.R. and went to the locked front door of the building and threatened to kick out the glass if she was not let out. Someone unlocked the door and she left the building. Following the visit, workers could not find Mrs. Reed sothat she could say good-bye to the children. Due to a threat to blow up Bridgeway Hospital, the staff at the hospital would not allow Mrs. Reed to visit W.R. during his stay there. Mr. and Mrs. Reed were allowed to visit with the other children and had difficulty keeping up with the children to keep them from running away.

On August 20, 1999, Van Patten submitted another court report indicating that R.R., G.R., and S.R. were doing well in their foster care placement; however, W.R. was in shelter placement because he had been found with his penis out of his pants "hunching" on top of the five-year-old foster sister. Appellants still lacked water service and a sewer system. Appellants had completed psychological evaluations, which indicated that they both functioned within the range of mild retardation. It was further stated that Mrs. Reed's ability to be an effective parent was "questionable." Both parents continued to have difficulty controlling the children during visitations.

In a review hearing held September 2, 1999, the trial court found that appellants had minimally complied with the case plan in that "they have not been able to establish a stable environment for the children to return to." In a court report filed February 14, 2000, social worker Betty Wadkins noted that during visitations, "people come and go in the home, the Reeds have difficulty knowing where the children are," and Mrs. Reed's uncle came into the home bleeding profusely from a reported fight. Clinical therapist, Joyce O'Neal, also filed a court report on February 14, 2000. She indicated that G.R. had come to the counseling session with skinned knuckles that she had burned at appellants' home. Further, W.R. disclosed further incidents of past sexual abuse. His foster mother reported that he returnedto her home after two separate visitations with "inappropriate articles in his pockets: two cigarette lighters and counterfeit money (one $100.00 bill)." W.R. also reported to his foster mother that he had been smoking at his parents' home. O'Neal recommended that the court decrease the children's visitation with their parents.

The marriage and family therapy counselors indicated that the "Reeds showed a lack of insight of the role their behavior plays into their legal situation. They tend to blame the court, DHS, and other involved parties for the removal of their children." This letter was filed with the court on February 25, 2000, and following a review hearing, the trial court reduced the children's visitation with their parents from twice weekly to one time per week. Following the decrease in visitation, DHS reported that there had been a decrease in the children's "acting out behaviors."

In April of 2000, the Searcy Children's Home submitted a report on the general behavior of the Reed children. It was reported that when the children first went to the home, "they were very wild and difficult to control." They reported that "[w]e would begin to get them settled down, then they would have a visit (during this time they had two unsupervised visits per week).... Their bad behavior was exaggerated after visits." The home reported that

[a]fter the visits became supervised, their behavior was some[what] better. After the visits were reduced to once a week and supervised at the DHS office, there was a marked difference in their behavior [sic]. They still came home a little wild and rebellious, but we were able to settle them down before bedtime. We also had longer periods of better behavior. [R.R.] began performing better in school. [G.R.] became controllable at school. [S.R.] became less defiant and much more affectionate. They all cursed much less. They seemed less angry. [S.R. and G.R.]'s nightmares were much less frequent, almost as to be nonexistent.

At the end of March[,] we took the kids on a Spring Break vacation trip to the Northeast. The kids did not see their parents for two weeks. Their behavior improved so much they were almost like normal children. We ate in restaurants for several meals. In four or five places[,] we received compliments on the kids' wonderful behavior. They were able to sit quietly and eat neatly while in public. I don't mean they were perfect, but they were calm and controllable.

OVERALL BEHAVIOR: Now [R.R.] is warm and affectionate. He initiates hugs and blows kisses from the bus window. He initiates hugs, kisses and tickling when we tuck him in bed. His school work has improved greatly. He has come out of his shell considerably. [R.R.] needs continued therapy because he is more quiet and covert. He greatly needs stability until a permanent placement occurs. Too many moves can cause insecurity.

[G.R.] doesn't have as many temper tantrums. She is overall more controllable and cooperative. She is also more affectionate and happy. She doesn't hurt herself except after visits or in extreme anger. She used to curse and scream every night in her sleep. She doesn't talk in her sleep very often anymore. She does still have a fear of "Freddy Cruger," a character from a horror movie that she watched when she was little. [G.R.] also seems to be the most damaged of the three. She needs therapeutic care because she needs much more individual guidance and help working through her past

[S.R.] is now more stable and secure. He feels safe here. After his last visit[,] I asked him if he had a good time. He said, "No, I come home this home (our cottage) [sic]. This is my home." He placed the emphasis on the word "my." He used to wake up crying almost ever night between 12 and 3 a[.]m[.]. He doesn't have that problem anymore. He is much more affectionate. Originally[,] he would not sit still in anyone's lap. He was a perpetual motion machine. Now[,] he likes to be held. He initiates hugs and says, "I love you mom/dad." [He] is much more cooperative now. As [he] begins to form attachments every move will cause insecurity. Moves may cause him to have difficulty attaching to his permanent family. He needs stability until permanent placement occurs.

It was also reported by a Rivendell Day Treatment School supervisor, that W.R.'s behavior had

greatly improved. He has been able to process with staff about his behaviors. [He] has shown compliance to the school rules on a regular basis. His attendance has been consistent. His grades are good. He is slow to work occasionally, but hisperformance has improved. He has learned to take an appropriate timeout with little to no problems. [W.R.]'s socialization skills have improved, but have not yet reached a desireable plateau. [He] has adapted well to the behavior modification system that has been implemented during his stay at the day school.

It was also reported in W.R.'s monthly foster care report that he appeared to be making a very good adjustment to their home and that his interaction was very good.

Ms. Virginia Barrett, a licensed psychological examiner, testified at a hearing held on November 30, 2000, that she felt that Mrs. Reed would not be able to independently maintain good parenting skills or a stable environment for the children for any length of time. Ms. Barrett stated that "[t]here was really no progress noted" with Mrs. Reed during therapy and that she found Mrs. Reed to be "very impulsive. She shows very poor judgment, and has difficulty making even minor decisions, difficulty in keeping up with her peers in a wide variety of situations that require age appropriate thinking and reasoning abilities." A psychological evaluation was performed by Keith Norwood, M.S. and Charles Spellmann, Ph.D. It was determined that Mrs. Reed's intellectual functioning was in the mentally deficient to borderline range.

Ms. Barrett also testified that she felt that Mr. Reed would not be able to independently maintain good parenting skills or a stable environment for his children for any length of time. Ms. Barrett further stated that when Mr. Reed would come in, "he was very resistant," and that during sessions, Randall Reed has been very "closed" to her. She acknowledged that

[t]here's been no progress in therapy, because he has no problems according to him. I've seen no progress. He is in the mild mental retardation range, which is even lowerthan Wendy's. Mr. Norwood, who did the testing, stated that his insight into family dynamics may be very poor and that he may be somewhat impulsive.... My impression with Mr. Reed is that there is no reason to continue counseling, because I don't believe that with someone who is that resistant and that closed, unless he changes attitude and opens up, there is no reason to continue. My opinion is nothing is going to be accomplished by continuing.

DHS filed a termination of parental rights petition in February of 2001, and in April of 2001, appellants' parental rights were terminated as to their four minor children. Based on the record before us, we conclude there is clear and convincing evidence to terminate the parental rights of Wendy and Randall Reed as to their four minor children. Appellants, despite meaningful efforts by DHS to rehabilitate the home and correct the conditions which caused removal, were unable to remedy those conditions. Therefore, we affirm the trial court on this point.

As to their second point, appellants argue that the trial court erred in finding that DHS had provided the statutorily-required and court-ordered services. We disagree and affirm on this point.

Undisputedly, the family was consistently provided services. The statutory definition of "family services" found at Ark. Code Ann. § 9-27-303(23)(A) (Repl. 2002) includes child care, homemaker services, counseling, cash assistance, transportation, therapy, psychological or psychiatric evaluations and treatment. Most, if not all, of these services were rendered to the family while this case file was open. According to the testimony, DHS workers provided Mrs. Reed with transportation and medication. They also provided the family with, inter alia, referrals to psychological evaluations, intensive family services, parenting classes, andindividual, family, and marital counseling.

Affirmed.

Bird, J., agrees.

Hart, J., concurs.