Victoria and Harold Shelley v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

VICTORIA and HAROLD SHELLEY

APPELLANTS

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA02-114

October 30, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION

[NO. JN 2000-1723]

HON. WILEY A. BRANTON, JR.,

JUDGE

AFFIRMED

The appellants are the parents of two minor children. The children were removed from the home on September 8, 2000, and were subsequently found to be dependent-neglected based on environmental neglect. Drug screens were performed on September 12, 2000, and both parents tested positive for marijuana. The trial judge, noting that he had concerns regarding the mental stability and judgment of the parents in addition to the environmental neglect to which they stipulated, ordered the parents to obtain acceptable housing with necessary utilities; to obtain stable employment and housing; to submit themselves to random drug and alcohol screens; to attend parenting classes and individual and family counseling; and to avail themselves of lay therapy services, homemaker services, and personal hygiene services. They were, in addition, ordered to pay child support at therate of $25 per week. At a review hearing in February 2001, it was found that both parents had failed drug tests. At the permanency planning hearing on June 19, 2001, it was found that both parents had failed to complete drug treatment and had tested positive for drugs. Mr. Shelly admitted that he did not have a steady job, had not complied with the order to pay child support, had not attended marital counseling, and had not attended individual counseling. He also admitted that he had continued to use drugs and that he did not know what the result of a drug test would be were he to be tested at that time. The trial court found that the only order the parents had complied with was to attend parenting classes, found a lack of significant compliance or progress, and authorized that the plan be changed from reunification to termination of parental rights.

At the termination hearing, there was evidence that the parents had failed to attend therapy services as ordered, that they still did not have adequate and stable housing for the children, that they had failed to maintain stable employment, that no child support had been paid, and that they had repeatedly failed drug screens for marijuana and cocaine. Appellants had, however, completed a drug-treatment program, and they testified that they were attempting to comply with the court's order. The trial court found that appellants' testimony lacked credibility, that the children had been out of the home for more than one year, and that the parents had failed to remedy the conditions that caused removal, and entered an order terminating appellants' parental rights. From that decision, comes this appeal.

For reversal, appellants contend that the trial court's order terminating parental rights is contrary to the weight of the evidence presented at trial. We affirm.

Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Ullom v. Arkansas Department of Human Services, 67 Ark. App. 77, 992 S.W.2d 813 (1999). Pursuant to Ark. Code Ann. § 9-27-341, 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 trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. Furthermore, we will defer to the trial court's evaluation of the credibility of the witnesses. Crawford v. Department of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997).

Appellants' arguments are twofold: first, they maintain that the trial court erred in finding that their testimony lacked credibility and, second, that the trial judge exhibited bias by giving too much consideration to photographs of appellants' home that depicted the cause for removal.

In matters involving the welfare of young children, we give great deference to the trial judge's superior opportunity to observe the parties and assess the credibility of the witnesses, and resolution of inconsistencies in the testimony are best left to the trial judge. See, e.g.,Dinkins v. Department of Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001). In the present case, the parties testified that they were making diligent efforts to comply with the trial court's order. However, it is undisputed that they did in fact fail to comply with that order, and we think that the trial judge could properly find from the evidence before him that appellants had made no serious attempt to comply with his order until the case plan was changed to termination of parental rights, and that they made only minimal progress thereafter. On this record, we cannot say that the trial court erred in finding that appellants' testimony lacked credibility.

Nor do we think that the trial judge erred or showed bias by his reference to and consideration of the photos of the family home at the time the children were removed. It was the trial judge's duty to determine whether appellants had remedied the conditions that caused removal, and it is impossible to make such a determination without reference to those conditions. It is necessary to see where the parents have started from to make any meaningful assessment of the depth of the problem or the adequacy of the actions taken to remedy it. Here, the photographs depicted a scene of such unspeakable squalor and desolation as to cast doubts on appellants' judgment and stability. It is the trial judge's difficult task in termination cases to peer into the future to make a projection bearing on the future welfare of the child, In re: Adoption of K.M.C., 62 Ark. App. 95, 969 S.W.2d 197 (1998), and we think that it was not only proper, but necessary, for him to give serious consideration to the conditions causing removal. We find no error, and we affirm.

Affirmed.

Bird, J., agrees.

Robbins, J., concurs.

John B. Robbins, Judge, concurring. I concur with the majority's decision to affirm the trial court's order terminating appellants' parental rights. However, I write separately to point out that, while evidence of circumstances existing when children are removed from their parents is clearly admissible, the circumstances existing when the parents' rights are terminated by the court should receive the greater consideration. Though the trial judge repeatedly referred to the pictures of appellants' home that were taken when the children were initially removed, I cannot say that his decision to terminate appellants' rights was clearly erroneous.