Karen Lee Rosamond v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

KAREN LEE ROSAMOND

APPELLANT

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA01-942

MAY 8, 2002

APPEAL FROM FAULKNER COUNTY CIRCUIT COURT

[NO. J2000-292]

HONORABLE LINDA COLLIER, CIRCUIT JUDGE

AFFIRMED

Karen Rosamond appeals from an order terminating her parental rights. On appeal, Rosamond argues that the Arkansas Department of Human Services (DHS) failed to meet its required burden of proof, that the trial court did not make the findings required by applicable law to terminate her parental rights, and that she was denied due process by the trial court's failure to appoint an attorney at the beginning of the case. We affirm. On May 31, 2000, Rosamond and her six-year-old daughter were found by an investigator in a crystal methamphetamine lab. At that time, DHS was called in by police officers to take the child into emergency custody, and Rosamond was incarcerated. An order for emergency custody was entered by the trial court in June 2000. A probable cause hearing was also held in June 2000, and the trial court found that there was probable cause that the child was dependent-neglected. The trial court also found that temporary custody of the child should be with her aunt, Stephanie Rosamond, who testified that the child had been living with her for the previous four years and that the child was visiting Rosamond on May 31, when she was placed in DHS custody.

An adjudication hearing was held in July 2000, and Todd Mize, an investigator with the Faulkner County Sheriff's Office, testified to the environment in which the child was found on May 31, 2000. Mize testified that he was investigating a suspect wanted on methamphetamine manufacturing charges at a two-garage shop. When he arrived, Mize found a smoke-filled room with a working meth lab in progress. Mize saw Rosamond and the child lying on a mattress in the room. Mize testified that there were syringes filled with drugs on a table within reach of the child. There was also sulfuric acid spilled on the floor approximately ten feet away from the child, and there were bottles of ether in the room. Mize testified that the child was in imminent danger in his opinion. Mize also testified that he asked who the parents of the child were and that no one claimed to be a parent. When he interviewed Rosamond at the scene, she gave a false name and stated that she was only babysitting the child. Mize testified that Rosamond did not admit that the child was hers until her first court appearance on the drug charges. The trial court adjudicated the child to be dependent-neglected, and based on the evidence presented, the court found that Rosamond had subjected the child to aggravated circumstances which could have endangered her life. The trial court also appointed Rosamond an attorney.

At a review hearing in September 2000, the trial court stated that Rosamond was not to contact her child if she made her bond and was released, and Rosamond then cursed and threatened Stephanie Rosamond, for which the trial court found Rosamond in contempt. At another review hearing in January 2001, DHS made a motion for no reunification services with regard to Rosamond, which was granted by the trial court with no objection by Rosamond, as she was expected to remain incarcerated for at least one more year.

In March 2001, DHS filed a petition for termination of Rosamond's parental rights. At the hearing on the motion, Stephanie Rosamond testified that the child started living with her four yearsago, ever since she had come to visit and was so filthy that she looked liked she had not had a bath in two weeks. Stephanie also read from a letter that Rosamond had written her while in prison, which contained curses and threatening language toward Stephanie. Stephanie testified that it was in the child's best interest not to go back to live with Rosamond, because Rosamond was not a good mother. Sharon Shields, the family service worker for the child, testified that it was DHS's recommendation to terminate Rosamond's parental rights, because it was in the child's best interests to do so. Based on all of the evidence in the record, the trial court found that there was clear and convincing evidence to support termination of Rosamond's parental rights. The trial court also placed the child permanently with Stephanie Rosamond.

Rosamond first argues that DHS failed to meet its required burden of proof. The rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A trial court's order terminating parental rights must be based upon findings proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002); Dinkins v. Arkansas Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is defined as that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Dinkins, supra. On appeal, the appellate court will not reverse the trial court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.

Rosamond's parental rights were terminated pursuant to Ark. Code Ann. § 9-27-341(b)(3), which states that an order terminating parental rights shall be based upon a finding by clear and convincing evidence that is in the best interest of the juvenile, including consideration of thelikelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. The order terminating parental rights also must be based on a showing of clear and convincing evidence as to one or more of the nine grounds for termination listed in section 9-27-341(b)(3)(B). The trial court's order listed four of these nine grounds as a basis for the termination of Rosamond's parental rights.

Rosamond makes several arguments under this point. She argues that DHS failed to establish by clear and convincing evidence that she was unfit to be a parent and that termination of her parental rights was in the best interest of her child. The termination of parental rights is a two-step process, requiring the trial court to find that the parent is unfit and that the termination of the parental rights is in the best interest of the child. J.T. v. Arkansas Dep't of Human Servs., supra. However, the trial court is not required to use the word "unfit," and the trial court's finding that the appellant is unable to be the type of parent that the child needs and is unable to learn to be that type of parent is a sufficient finding of appellant's unfitness. Id. In this case, the court also did not specifically find that Rosamond was "unfit." However, the court found that Rosamond had subjected the child to abuse or neglect, as well as aggravated circumstances, because of the graphic testimony as to the dangerous environment in which the child was found during visitation with Rosamond, and Rosamond was not allowed to visit the child, even when released from prison, due to her curses and threatening statements made toward her sister, Stephanie, while she was incarcerated. According to Ark. Code Ann. §§ 9-27-341(b)(vi)(b) and (ix)(b), when the trial court finds that the parent has subjected the child to neglect or abuse that could endanger the life of the child, this constitutes grounds for immediate termination of parental rights, and if the court finds aggravating circumstances present, then no reunification is required. Under the circumstances of this case, the trial court's findings were sufficient to establish that Rosamond was unfit.

Rosamond also challenges the trial court's finding that termination was in the best interest of the child and was supported by clear and convincing evidence. Under Ark. Code Ann. § 9-27-341(b)(3), in deciding whether termination is in the best interest of the juvenile, the trial court should consider the likelihood of adoption if the petition is granted, and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. In this case, the trial court appropriately found that termination of Rosamond's parental rights was in the best interest of the child by considering that she would be placed permanently with her aunt, Stephanie, and by noting that it was contrary to the child's health, safety, and welfare to return her to the custody of Rosamond.

Finally, Rosamond contends that there was insufficient evidence to terminate her parental rights, because the child was not out of the home for a full twelve months as required by Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a). The trial court's order did recite as one of the grounds for termination section 9-27-341(b)(3)(B)(i)(a), which includes the provision that the child has continued out of the home for twelve months and the conditions causing removal have not been remedied. However, the order also contained the additional grounds, found in sections 9-27-341(b)(3)(B)(vi)(a) and (ix)(a)(3), that the child was found to be dependent-neglected as a result of neglect or abuse by Rosamond that could endanger the life of the child, and that Rosamond was found to have subjected the child to aggravated circumstances. Regardless of whether the evidence supports termination based on section 9-27-341(b)(3)(B)(i)(a), only one ground for termination is required to be shown by clear and convincing evidence, and in this case, the trial court found four separate grounds. See Dinkins v. Arkansas Dep't of Human Servs., supra (holding that although evidence did not support one ground for termination relied upon by trial court, the other ground was supported by sufficient evidence, so that any error was harmless); Wade v. Arkansas Dep't ofHuman Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Because of the abuse and neglect perpetrated by Rosamond, and the trial court's finding of aggravated circumstances, there was clear and convincing evidence to support at least two different grounds for the termination of Rosamond's parental rights, and the trial court's ruling was not clearly erroneous.

For her next point, Rosamond argues that the trial court did not make the findings required by applicable law to terminate her parental rights. In this point on appeal, Rosamond offers essentially the same arguments as her first point. She contends that the trial court failed to make specific findings regarding her unfitness or the likelihood of harm caused by continuing parental contact. As discussed above, the trial court made sufficient findings on these points in order to terminate her parental rights. Rosamond relies on Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984), in support of her argument that the trial court's findings of fact and conclusions of law did not meet the appropriate criteria and warrant reversal in this case. However, Bush was decided under prior law and involved a different statute than the one in question. The statute involved in Bush required that there be specific findings of fact to support all the allegations of unfitness stated in the petition. Id. The trial court in this case made the findings required by the current statute governing the termination of parental rights, and thus, Rosamond's argument is without merit.

For her third and final point, Rosamond argues that she was denied due process by the trial court's failure to appoint an attorney at the beginning of the case. Rosamond was not represented by counsel at the June 8, 2000, probable cause hearing, or at the July 10, 2000, adjudication hearing. At the adjudication hearing, the trial court appointed counsel to represent Rosamond at the request of DHS, and her attorney was present at the remainder of the hearings in this case. The record reflects that Rosamond was given notice of her right to have an attorney appointed in the June 5, 2000, emergency custody order. At no time did Rosamond or her attorney make an objection to thetrial court based upon her lack of representation at the first two hearings or make the argument that Rosamond now makes on appeal. Because Rosamond did not make this argument below, DHS correctly contends that this issue is not properly preserved for appeal. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992).

Affirmed.

Stroud, C.J., and Pittman, J., agree.