Bernice Greenfield v. Arkansas Department of Human Services

ca02-525

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

BERNICE GREENFIELD,

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES,

APPELLEE

CA02-525

OCTOBER 30, 2002

APPEAL FROM THE FRANKLIN COUNTY CIRCUIT COURT,

NO. J97-89,

HON. KENNETH D. COKER JR., JUDGE

AFFIRMED

Bernice Greenfield appeals a February 21, 2002, order of the Franklin County Circuit Court that terminated her parental rights as to three minor children. Because the Department of Human Services (DHS) has not filed a brief supporting the order of termination, we must reach our decision without benefit of DHS's expertise. We vigorously reiterate the view expressed in Gregg v. Arkansas Dep't of Human Servs., 58 Ark. App. 337, 952 S.W.2d. 183 (1997), finding it unconscionable that the state agency charged with this serious remedy has failed to file a brief in an appeal of an order of termination of parental rights.1 We take this opportunity to emphasize, again, the following remarks:

The Department is the governmental entity with explicit responsibility to act as advocate for the interest of children in proceedings of this nature. One would think that a decision to seek the removal of children from the custody of a parentbecaus

e of govern mental concer n for their safety and welfar e would carry with it a respon sibility to mainta in that concer n after a favora ble ruling has been appeal ed. Aside from the need to have the public interes t repres ented,the childre n affecte d by the decisi on deserv e somet hing more than what the Depart ment provid ed them in this appeal, which was nothin g.

Dover v. Arkansas Dep't of Human Servs., 62 Ark App. 37, 41, 968 S.W.2d 635, 657 (1998) (Griffen, J., concurring).

We now address the case before us. DHS initiated contact with Greenfield's children in 1993 after a telephone report that two children were alone and unsupervised. At Greenfield's home, the DHS worker found a nine-year-old girl and her eleven-year-old brother. They told the worker that their mother had left early and that they did not know when she would be back. The worker observed huge holes in the living room and bathroomfloors, spoiled and rotting food, dirty dishes, trash and feces on the floors, clothes piled high around and on the girl's bed, no running water except for the bathtub, a full and unflushed toilet, a dog with mange, unsafe indoor stairs, holes leading outside and an open window with a screen barely attached in the boy's room, weak and caving sections of the roof, and a ceiling light with bare wires. The worker learned that Greenfield's five-year-old son, who was at a learning center in Ozark, was unable to talk; a sixteen-year-old daughter was "running" and could not be located.

The three younger children were removed from Greenfield's custody, but were returned to her within the month when living conditions were improved and she expressed a willingness to improve their care. From 1997 until 2001, the case was periodically reopened and the children removed from Greenfield's custody, with the goal of the case being reunification.

At a permanency planning hearing in August 2001, the court considered a DHS recommendation that the goal in the case be changed to adoption because there was little likelihood that services would result in permanent reunification. In terminating Greenfield's parental rights, the trial court found that DHS had proven by clear and convincing evidence that, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions had not been remedied by the parent. The court also found that, subsequent to the filing of the original petition, other factors had arisen demonstrating that return of the juveniles would be contrary to their health, safety, or welfare. Greenfield appeals the order of termination, contending (1) that the evidence wasinsufficient to support the judgment that her parental rights should be terminated, and (2) that DHS failed to modify the case plan in order to meet her needs under the Americans with Disabilities Act. We find no merit to either of these arguments, and we affirm.

1. Whether the evidence was sufficient to support the court's judgment that parental rights should be terminated.

The grounds for termination of parental rights, set forth by statute, include the following:

(b) (3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

. . . .

(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.

. . . .

(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.

(b) Provided, however, that the department shall make reasonable accommodations in accordance with the Americans with Disabilities Act to parents with disabilities in order to allow them meaningful access to reunification and family preservation services.

Ark. Code Ann. § 9-27-341 (Supp. 2001).

The question on appeal is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of witnesses. M. T. v. Arkansas Dep't of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.

In support of her first point of appeal, Greenfield argues that she corrected the problems cited in the case plan developed by DHS. Those problems were inadequate transportation, poor coping skills, dangerous housing, poor income, poor housekeeping skills, and poor budgeting and money management. She complains that the attitude of DHS changed upon receipt of a psychological evaluation by Dr. Deyoub, at which time the goal was changed from reunification to termination and adoption.

Dr. Deyoub concluded after evaluating Greenfield and the children that he simply did not see that she would be able to provide adequately for the children's special needs, and that the children's respective problems would only increase if the children were left in her care. He diagnosed Greenfield with parent-child relational problems, personality disorder, adjustment disorder with depressed mood, and primary family support problems.

Lucy Yaple, the family service worker on this case, testified at the termination hearing to the following events and conditions. Greenfield's three children had been in and out of DHS custody from 1993 until November 2000. On July 13, 1993, they were taken intocustody because they had been abandoned, lacked resources to seek aid in an emergency, were in an unsafe and unsanitary home, and lacked food. They were returned to Greenfield after several weeks because she expressed a willingness to improve their care and because of improved living conditions. On September 1, 1997, the children were again taken into custody because they were unsupervised, they lacked resources to seek aid in an emergency, Greenfield was living with her boyfriend at a different residence, the home was unsafe and unsanitary, the children lacked food, and Greenfield had refused to pick up the children after being notified that they were at the police station. The children were returned to Greenfield on March 11, 1998, and the case was dismissed on May 5, 1999. The next incident occurred on June 9, 1999, for the same reasons as before; the children were returned on June 21, 1999, after Greenfield corrected the environmental issues. On September 20, 2000, the children were again placed in DHS custody because Greenfield had not complied with referrals of the court. The children had been out of their mother's custody from that time until the time of the permanency hearing in August 2001.

Yaple also testified regarding Greenfield's compliance with court orders. She testified that it was a challenge to get Greenfield to attend a "Survivor Skills for Women" class, which she attended only after the court told her there would be consequences if she did not attend; that Greenfield attended parenting classes in 1997 so that she could get the children back; that she went to counseling but walked out of a session with community services, saying that she didn't need their assistance anymore; and that she had stopped counseling and therapy recommended by Dr. Deyoub.

Yaple testified that the children had all made progress. She stated her belief that the children needed to remain in foster care in their present locations; that they needed permanency and structure, which was not seen when they were with Greenfield; and that parental rights with Greenfield should be terminated to proceed toward adoption. Yaple stated that she saw an ongoing pattern of the children's return to Greenfield and the situation reoccurring with their being left unsupervised, not having adequate food in the home, and not having someone to go to in an emergency. Yaple also testified that it had been difficult for her to get into Greenfield's home, that Greenfield had not been available to the person who provided homemaker services, that Greenfield did not deal with the issues of counseling, and that she had not complied with the issue of housing in the case plan.

Greenfield testified at the hearing that she was currently living with her son in a trailer, that the trailer had heat and water, and that she would sleep on the couch when the children were returned to her. She testified that she had no transportation but would borrow her daughter's car when needed.

As noted above, the trial court found that despite a meaningful effort by DHS to rehabilitate the home and correct the conditions which caused removal, those conditions had not been remedied by Greenfield. We find that the testimony that the caseworker had difficulty getting into Greenfield's home and that Greenfield would sleep on the couch in the trailer if the children were returned is sufficient to show that Greenfield had not complied with the issue of housing in the case plan. Additionally, Greenfield's testimony about her lack of transportation constituted sufficient evidence that she had failed to remedy theproblem of transportation. Thus, we hold that the trial court's finding that Greenfield had not remedied the conditions causing removal of the children from her home and her custody was not clearly erroneous.

The trial court also found that, subsequent to the filing of the original petition, other factors had arisen demonstrating that return of the juveniles would be contrary to their health, safety, or welfare. As reviewed above, the caseworker testified that she had seen an ongoing pattern of the children being returned to Greenfield and the situation reverting to the way it had been; that the children needed permanency and structure in their lives, which they did not get from their mother; and that the caseworker believed that the children needed to remain in foster care. Dr. Deyoub opined that Greenfield would not be able to provide adequately for the special needs of the three children, and that their respective problems would only increase in her care. Additionally, there was testimony by the caseworker that after Greenfield belatedly submitted to a court-ordered evaluation by Dr. Paul Deyoub, she had not followed through with his recommendations for counseling. Considering these testimonies, reports, and opinions, we hold that the trial court did not clearly err in finding that, subsequent to the filing of the original petition for dependency-neglect, factors had arisen demonstrating that return of the juveniles would be contrary to their health, safety, or welfare.

2. Whether the Department of Human Services was required to modify the case plan in order to meet Greenfield's needs under the Americans with Disabilities Act.

Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Supp. 2001) requiresthat when additional factors arise subsequent to the original petition for dependency-neglect that prevent return of the juvenile to the family home, reasonable accommodations be made in accordance with the Americans with Disabilities Act to parents with disabilities in order to allow them meaningful access to reunification and family preservation services. In support of her contention that the case plan should have been modified to meet her ADA needs, Greenfield contrasts the psychological examinations given to her by Dr. Deyoub and Dr. Bernice Bell.

Greenfield argues that Dr. Deyoub was biased because most of the information was supplied from the DHS caseworker rather than from appellant, and she complains that no case plan was drawn up regarding the problems he diagnosed. She also complains that DHS did not provide psychiatric counseling and counseling recommended by Dr. Bernice Bell, who performed a second psychological examination and found Greenfield to be of average intelligence with some learning disabilities but no evidence of psychosis or neurotic disorders.

We find nothing in the abstract or addendum to show that the diagnoses made by Dr. Deyoub or Dr. Bell put Greenfield within the purview of the American with Disabilities Act.2 Our review of the record shows, in the case plan's section inquiring as to the need for ADA accommodations, the notation "Worker not aware of any needed accommodation at this time." We also note the testimony of Yaple and the reports of DHS that Greenfield haddelayed submitting to evaluation by Dr. Deyoub, and that she did not follow through with his recommendations for counseling. In short, we find no evidence that Greenfield had needs under the ADA that would have required DHS to modify its case plan.

Affirmed.

Pittman and Robbins, JJ., agree.

1 Arkansas Code Annotated section 9-27-341(a)(1) (Supp. 2001) specifies that the remedy of termination of parental rights is available only to DHS or a court-appointed attorney ad litem.

2 Our search of the record shows that the trial court heard arguments on reasonable accommodation for these diagnoses pursuant to Greenfield's motion for "directed verdict" at the termination hearing.