Roy Hoggard v. Arkansas Department of Human Services

ca02-498

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION IV

ROY HOGGARD

APPELLANT

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA02-498

DECEMBER 11, 2002

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[J2000-14G]

HONORABLE MARK HEWETT, CIRCUIT JUDGE

AFFIRMED

Roy Hoggard's parental rights were terminated by an order entered on January 25, 2002, in the Sebastian County Circuit Court, Juvenile Division. His sole argument on appeal is that the trial court erred in finding sufficient evidence to terminate his parental rights. Ronamae Hoggard, the children's mother, did not appeal. We find no merit in Roy Hoggard's argument and affirm.

Appellant in this case is the father of two minor daughters, A.H. and C.H., four and seven years of age, respectively. On February 4, 2000, the girls were in a vehicle with appellant, their mother, and appellant's brother, when they were pulled over by Officer Alan Marks during a traffic stop. A search of the vehicle revealed photographs of appellant's wife (the children's mother) having oral sex with the two children. Officer Marks testified that at the time the photos were found, appellant admitted to taking the "glossy" photographs. Consequently, appellant was convicted of the offense of permitting minor children to engage in sexually explicit conduct for the purpose of producing a visual depiction and aiding and abetting in the Federal District Court of the Western District of Arkansas and sentenced to a period of incarceration of thirty years. Moreover, appellantwas convicted in Sebastian County Circuit Court, Criminal Division, of raping his two minor daughters and sentenced to thirteen years' imprisonment. Appellant's wife was sentenced to twenty years' imprisonment on related charges by the Sebastian County Circuit Court, Criminal Division. On February 7, 2000, DHS filed a petition for emergency custody due to the evidence of sexual abuse. Nelda Robinson, who was the case worker for almost one year on this case, testified that both children were adjudicated dependent-neglected in March 2000 and that both children had been living outside the home for almost two years. She also testified that DHS had provided the following services to the children: visitation with the grandmother, visitation with the grandfather, medical services, foster placement, and counseling.

The first petition to terminate parental rights was filed by the attorney ad litem on February 5, 2001. The second petition to terminate parental rights was filed by DHS on September 6, 2001. The trial judge entered an order terminating parental rights on January 25, 2002. From that order comes this appeal.

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) (Supp. 1999); 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 convictionthat a mistake has been made. Id.

For reversal, appellant contends that the trial court erred in finding sufficient evidence to terminate his parental rights. In terminating appellant's parental rights, the trial judge based his decision on the following grounds:

(2) The Court . . . does find by clear, cogent and convincing evidence that the return of the juveniles to the home of the parents is contrary to the health, safety and welfare of the juveniles and . . . that return of the juveniles to the custody of the parents cannot be accomplished in a reasonable time. . .

(a) the parents have been convicted on charges of perpetrating sexual acts upon the herein juveniles. Said convictions are grounds for immediate termination of the parental rights of both parents.

(b) the father has been sentenced to a period of incarceration of 30 years by the Federal District Court of the Western District of Arkansas. In addition, the father has been sentenced to a period of 13 years by the Sebastian County Circuit Court, Criminal Division.

(c) the mother has been sentenced to a period of incarceration of 20 years by the Sebastian County Circuit Court, Criminal Division.

Arkansas Code Annotated sections 9-27-341(b)(3)(A)(Supp. 1999) and (B)(vi)-(viii)(Supp. 1999)

support the trial judge's findings, providing:

(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:

. . .

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

. . .

(vi)(a) The juvenile court has found the juvenile victim dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, and which was perpetrated by the juvenile's parent or parents.

(b) Such findings by the juvenile court shall constitute grounds for immediate termination of the parental rights of one (1) or both of the parents;

(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.

. . .

(viii)(a) The parent is sentenced in a criminal proceeding for a period of time which would constitute a substantial period of the juvenile's life and the conditions in subdivision (b)(3)(B)(i) or (b)(3)(B)(ii) of this section have also been established.

(b) For purposes of subdivision (b)(3)(B)(viii) of this section, "substantial period" means a sentence, and not time actually served, of no less than fifteen (15) years, none of which has been suspended;

Subsection (b)(3)(B) of Arkansas Code Annotated Section 9-27-341 provides:

(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;

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. Baker v. Arkansas Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000) (citing J.T., supra; Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992); Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984)). Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Id. (citing Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); J.T., supra.; Anderson, supra.) The supreme court recognized in J.T., however, that parental rights should not be allowed to continue to the detriment of the child's welfare and best interest. Id. To illustrate that the best interest of the child is the primary consideration in these cases, the court in J.T. stated:

While we agree that the rights of natural parents are not to be passed over lightly, these rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.

329 Ark. at 248, 947 S.W.2d at 763. Arkansas Code Annotated section 9-27-341(a)(3) sets forth in relevant part the intent behind the law governing termination of parental rights:

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

In this case, the children were originally taken from appellant as a result of photographs depicting sexual abuse of the girls. Both girls were declared dependent-neglected and have been out of the home for more than the requisite one-year period of time. There is evidence that appellant stands convicted of crimes for which he has been sentenced to thirty years in federal prison and thirteen years in state prison, constituting a "substantial period" of the children's lives per the statute. There is also evidence to support the trial judge's finding that return of the children to the home of the parents is contrary to the health, safety, and welfare of the children and that return of the children to the custody of the parents cannot be accomplished in a reasonable period of time. We conclude that there was clear and convincing evidence to support the trial judge's decision to terminate appellant's parental rights. Thus, we cannot say the decision to terminate parental rights was clearly erroneous. See Thompson v. Arkansas Dep't of Human Servs., 59 Ark. App. 141, 954 S.W.2d 292 (1997) (holding that there was clear and convincing evidence to support termination of the mother's parental rights with respect to her two youngest children where the mother had been convicted of raping her two older children and sentenced to a total of forty years in prison, and all four of her children had been declared to be dependent-neglected and had been out of the home for more than requisite one-year period).

Affirmed.

Stroud, C.J., and Neal, J., agree.