Kerry Brand v. Arkansas Department of Human Services

ca02-363

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CA02-363

DECEMBER 4, 2002

KERRY BRAND AN APPEAL FROM THE POPE APPELLANT COUNTY CIRCUIT COURT

v. [J-99-192]

ARKANSAS DEPARTMENT OF HONORABLE KENNETH DAVID

HUMAN SERVICES COKER, JUDGE

APPELLEE

AFFIRMED

Appellant, Kerry Brand, appeals a decision of the Pope County Circuit Court that forever terminated her parental rights as to her two minor children, B.B. and S.B. We affirm the termination of appellant's parental rights. Additionally, appellee, Arkansas Department of Human Services (DHS) has filed a late-hour motion to file a belated brief. Because the case had already been submitted to the Court and because appellee will suffer no prejudice, we deny appellee's motion.

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. Johnson v. Arkansas Dep't of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Id. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence, and 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. Id. 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. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. 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. Id.

Appellant argues that the evidence was insufficient to support the court's judgment that her parental rights should be terminated. Specifically, appellant contends that:

[t]he Court found that the Department did not prove ground B of their amended petition, that the children had continued out of the home of the parents for twelve months. The Court also made the finding of fact that the Department failed to prove the mother failed to provide significant material support in accordance with her means or maintain meaningful contact with the children.

Appellant's contention does not provide an accurate pronouncement of the court's findings. Prior to its amendment, Arkansas Code Annotated section 9-27-341 (Repl. 1998) read, in pertinent part, as follows:

(a) This section shall be a remedy available only to the Department of Human Services or a court-appointed attorney ad litem. It shall not be available for private litigants or other agencies. It shall be used only in such cases when the departmentis attempting to clear a juvenile for permanent placement. The intent of this section 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 return to the family home cannot be accomplished in a reasonable period of time.

(b) The court may consider a petition to terminate parental rights if there is an appropriate permanency placement plan for the juvenile. The petitioner shall provide the parent, parents, or putative parent(s) actual or constructive notice of a petition to terminate parental rights. An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

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

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

(B) The potential harm caused by continuing contact with the parent, parents, or putative parent;

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

(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 of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. It is not necessary that the twelve-month period referenced in this subdivision (b)(2)(A) immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months;

(B) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile. To find willful failure to maintain meaningful contact, it must be shown that the parent was not prevented from visiting or having contact with the juvenile by the juvenile's custodian or any other person, taking into consideration the distance of the juvenile's placement from the parent's home. Material support consists ofeither financial contributions or food, shelter, clothing, or other necessities where such contribution has been requested by the juvenile's custodian or ordered by a court of competent jurisdiction. It is not necessary that the twelve-month period referenced in this subdivision (b)(2)(B) immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months;

***

Currently, Arkansas Code Annotated section 9-27-341 (Repl. 2002), as amended, provides in pertinent part, the following:

(a)(1)(A) This section shall be a remedy available only to the Department of Human Services or a court-appointed attorney ad litem.

(B) It shall not be available for private litigants or other agencies.

(2) It shall be used only in such cases when the department is attempting to clear a juvenile for permanent placement.

(3) The intent of this section is to provide permanency in a juvenile's life in all instances where the 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.

(b)(1) The court may consider a petition to terminate parental rights if there is an appropriate permanency placement plan for the juvenile.

(2) The petitioner shall provide the parent, parents, or putative parent or parents actual or constructive notice of a petition to terminate parental rights.

(3) 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.

(b) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(i) of this section immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months;

(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile.

(b) To find willful failure to maintain meaningful contact, it must be shown that the parent was not prevented from visiting or having contact with the juvenile by the juvenile's custodian or any other person, taking into consideration the distance of the juvenile's placement from the parent's home.

(c) Material support consists of either financial contributions or food, shelter, clothing, or other necessities where such contribution has been requested by the juvenile's custodian or ordered by a court of competent jurisdiction.

(d) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(ii) of this section immediately precede the filing of the petition for termination of parental rights, or that it be for twelve (12) consecutive months;

***

The language of the statute did not significantly change; what is apparent, however, is that the numbering of the statute did change. It is obvious to us that the trial court, inmaking its ruling, looked to the language of section 9-27-341 as it read in 1998. In terminating appellant's parental rights, the court pronounced:

I am going to find that the Department has proven by clear and convincing evidence the following grounds for termination of parental rights as alleged in the Amended Petition. Number one: they have proved by clear and convincing evidence --- the Department has --- that the minor children have continued out of the home of the parents for twelve months --- or out of Ms. Brand's home for twelve months, and despite meaningful effort by the Arkansas Department of Human Services to rehabilitate the home and correct the conditions which caused the removal, these conditions have not been remedied by Ms. Brand, the mother. I didn't hear any testimony about providing significant material support. I really didn't hear anything about failure to maintain visitation. I am going to find the Department has not proven ground B in their Amended Petition, which was their allegation that the children had continued out of the home of the parents for twelve months, and Ms. Brand has willfully failed to provide sufficient material support in accordance with her means or maintain meaningful contact with the children. I am finding the Department has proven by clear and convincing evidence that subsequent to the filing of the original Petition for Dependency/Neglect other issues or factors have arisen which demonstrates return of the children to [Ms.] Brand is contrary to the children's health, safety, and welfare. That despite the offer of appropriate family services, [Ms.] Brand has manifested [an] incapacity or indifference to remedy the subsequent issues or factors or rehabilitate their circumstances which prevent the return of the children to [Ms.] Brand. Further finding that the Department has proven by clear and convincing evidence that [Ms.] Brand's parental rights have been involuntarily terminated as to a sibling of [B.B. and S.B.]. The Department has further proved by clear and convincing evidence that it's in the best interest of each of these children, [B.B. and S.B.], that Ms. Kerry Brand's parental rights be terminated to each child. It's in the best interest of [B.B. and S.B.] that their custody remain with the Department of Human Services.

The trial court found that the children had been out of the home for a period of twelve months. It further found that the DHS did not prove that appellant willfully failed to provide sufficient material support in accordance with her means or to maintain meaningful contact with the children. As previously noted, an order forever terminatingparental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continued contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2002). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2002). One such set of circumstances that may support the termination of parental rights is that the child "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." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2002).

At the termination hearing on January 4, 2002, Loretta Page, appellant's caseworker, testified that B.B. and S.B. were adjudicated dependent/neglected in May of 1999. The issues involved were reports that the children had been left unsupervised, medications left out in reach of the children, and lack of stable housing. The children remained outside of the home throughout 1999. In December of 1999, Appellant and the children's father, Cody Brand1, were ordered to undergo and complete parenting classes, counseling, submit to random drug testing, secure employment, and a stable home. Thechildren returned home in March of 2000. Page testified that there was a report that appellant was allowing the father to see the children in violation of the court order and it was also reported that she and Cody were having sexual relations in front of the children. Page further noted that S.B. reportedly had been badly bruised on her buttocks, legs, and back, and refused to stay with appellant. In December of 2000, the children were again taken into DHS custody and were adjudicated dependent-neglected for a second time in January of 2001. The court ordered a psychological examination and random drug testing. Two tests yielded positive results for marijuana and at least three were negative. There was evidence that one sample had been adulterated with bleach. Page further testified that appellant had had eleven addresses during the time her children were in DHS care and that appellant failed to keep DHS advised of her addresses. Appellant also had five different jobs.

Appellant testified at the termination hearing that she lived with a friend and her three children. She had been evicted from her previous residence because she was behind in her rent. She testified that she quit her previous job because she did not like the job or her co-workers. She testified that she currently did odd jobs that brought in about three hundred dollars a week. The odd jobs included yard work and sometimes watching other people's children. When asked who she babysat for, appellant responded, "I am not going to tell. I am not going to tell that. You'll go get' em. I am not saying nothing. I refuse to answer that question." Appellant went on to testify that she watched her roommate's kids sometimes and that her roommate does not pay her for doing so. Appellant then provided that she did not want to be up on the stand and that she would not divulge any more than what she already had.

We are not left with a definite and firm conviction that a mistake has been made. Therefore, the trial court's decision to terminate appellant's parental rights was not clearly erroneous.

Affirmed.

Pittman and Griffen, JJ., agree.

1 Because there were some questions concerning the notice provided to the father, Cody Brand, the trial court set a separate hearing with regard to the termination of his parental rights.