Kelly Mainard v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION I

KELLY MAINARD

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA02-348

June 18, 2003

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT

[NO. J-2000-2]

HON. LINDA COLLIER,

JUDGE

AFFIRMED

Appellant Kelly Mainard, the mother of A.M. and D.M., appeals the termination of her parental rights as ordered by the Van Buren County Circuit Court. She contends that her parental rights were terminated without due process of law in violation of the United States Constitution in that she was deprived of due process when the trial court: 1) admitted certain medical records into evidence over her objection and after a medical authorization had been revoked; 2) ordered termination of her parental rights without providing meaningful services to rehabilitate the home; 3) admitted the medical records of the minor child, A.M., into evidence; 4) failed to provide her with a permanency planning hearing as required by Ark. Code Ann. § 9-27-338 (Repl. 1998); and 5) failed to recuse herself following allegations of prejudice and ex parte communications. Appellant also argues that the trial court erred infinding that the Arkansas Department of Human Services presented clear and convincing evidence to support the termination of her parental rights. We affirm.

The Arkansas Department of Human Services ("DHS") became involved with this family in 1996. Appellant candidly admitted that she had experienced problems with her children since the breakup of her relationship with their father. Appellant's oldest child, A.M., is mentally ill and has been in foster care and treatment facilities off and on since 1996. On May 10, 1999, the Conway County Chancery Court found A.M. and D.M. to be dependent-neglected. The court entered an order for emergency custody placing the children in the care and custody of DHS pending further orders of the court.

Over the course of the next two years, DHS continued in its efforts to provide services to this family to help prevent removal or to reunify the family. Appellant lived in various women's shelters and with Jerry Hurst on an off-and-on basis. DHS reported that there was domestic violence in the Hurst home and that it was not a stable environment for the juveniles. In an order filed December 16, 1999, the court found Jerry Hurst to be a danger to the children and restrained appellant from allowing Mr. Hurst any contact with the children.

After a change in appellant's place of residence, the case was transferred to Van Buren County Chancery Court. Several review hearings were conducted, and at each, the court continued custody of both juveniles with DHS, finding that it was in the best interests of the juveniles and necessary for their health, safety, and well being that custody remain with DHS. On August 30, 2000, the court found that appellant failed to comply with thecase plan and orders of the court, and noted that the next hearing would be a permanency planning hearing.

A permanency planning hearing was held on January 9, 2001. At this hearing, appellant testified that she was living with Jerry Hurst and had lived with him off and on for a year. DHS contended that it was not aware that appellant was again living with Mr. Hurst. The court again found that DHS had made reasonable efforts to provide services and that appellant had failed to comply with the case plan and the court orders. The court further found that the goal should be changed to termination of parental rights.

On June 1, 2001, DHS filed a petition seeking termination of appellant's parental rights on the grounds that 1) the juveniles had been adjudicated by the court to be dependent-neglected and had continued out of the home for twelve months, and that despite a meaningful effort by the department to rehabilitate the home and correct the condition that caused removal, those conditions had not been remedied by the parent, and 2) subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose that demonstrated that the return of the juvenile to the family home was contrary to the juveniles' health, safety, or welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevented return of the juvenile to the family home.

A termination hearing was held on November 27, 2001. The trial court terminated appellant's parental rights upon findings that appellant was unable to provide for the needsof her children and that it was contrary to the children's best interests to return them to the care and custody of their mother. From that decision comes this appeal.

We first address appellant's argument that the trial court erred in finding clear and convincing evidence to support the termination of appellant's parental rights. 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. Walters v. Arkansas Dep't of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (2002). Termination of parental rights is an extreme remedy and is in derogation of the natural rights of parents. Id. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Johnson v. Arkansas Dep't of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). 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 that will produce in the fact finder a firm conviction regarding the allegation sought to be established. Baker v. Arkansas Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of the 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. Johnson, supra.

In making its determination, the trial court noted that DHS had proved by clear and convincing evidence that since 1996 appellant had been unable to provide for the needs of her children and that she remains unable to provide such. At numerous review hearings prior to the termination hearing, the court observed that appellant had failed to comply with the case plan and court orders. The evidence showed that appellant had a history of living off and on with a man who had expressly been found to be a danger to appellant's children. There was testimony that appellant had allowed inappropriate physical contact between herself and her older child and that she repeatedly demonstrated an unwillingness to observe the rules of the women's shelters at which she was living. Testimony of mental health professionals established that A.M. has significant mental health problems and that he will likely need continuing treatment at a mental health facility. D.M., however, has shown signs of progress since his placement with a foster family. The trial court found that DHS had made reasonable efforts to reunite this family and had made reasonable efforts to obtain permanency for the juveniles. The court further found that it was contrary to the children's best interests, health, safety, and welfare to return them to the care and custody of appellant.

Given our deferential standard of review, we are not left with a definite and firm conviction that a mistake has been made. The trial court's decision to terminate appellant's parental rights was not clearly erroneous.

Next we turn to appellant's contention that her parental rights were terminated without due process of law in violation of the United States Constitution. We do not reach the merits of this argument because it was not raised below and thus not properly preservedfor appeal. Failure to raise the challenge below is fatal to the appellate court's consideration on appeal; even constitutional issues will not be considered when raised for the first time on appeal. Walters, supra.

Appellant lists five areas in which she contends she was denied due process. The only mention of "due process" during any of the proceedings occurred when appellant's counsel was addressing the admissibility of appellant's medical records, for which she had previously signed a release. In arguing that these reports should not be admitted, counsel stated, "I believe Due Process requires some sort of warning and some sort of opportunity to object to those matters before all this information is before the Court." Counsel was referring to "information that shows up in these court reports that apparently came from the statements Defendant made to her doctor two or three years ago while she was being treated at Pinnacle Point." This was not a sufficiently specific objection to preserve the issue for appeal. According to our case law, an objection must be specific enough to apprise the trial court of the particular error alleged. It is not sufficient to make a conclusory statement that due process requires "some sort" of warning or opportunity to object. See National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996) (argument was procedurally barred where party did not raise the specific constitutional argument below, but merely made conclusory statements that a statute was unconstitutional); Edgin v. Entergy Operations, Inc., 331 Ark. 162, 961 S.W.2d 724 (1998) (absent a specific objection informing the trial court of the nature of the error alleged on appeal, the appellate court will not reach merits of argument); Walters v. Arkansas Dep't of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533(2002) (failure to raise the challenge below is fatal to the appellate court's consideration on appeal; even constitutional issues will not be considered when raised for the first time on appeal); Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999) (mere mention of the word "trustworthy" in an objection was not sufficient to apprise the trial court of any confrontation clause argument just because, as appellant argued, trustworthiness of evidence is the touchstone of a confrontation clause argument).

Even if we were to address the merits of appellant's due process argument, we would affirm. Appellant signed a release of her medical records and, under Ark. R. Evid. 510, a person upon whom a privilege against disclosure is conferred waives the privilege if he voluntarily discloses or consents to disclosure of any significant part of the privileged matter. Furthermore, the information appellant contends was privileged was provided during court-ordered counseling sessions. Rule 503(d)(2) of the Arkansas Rules of Evidence provides that if the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged with respect to the particular purpose for which the examination is ordered unless the court orders otherwise. The application of this rule did not result in a deprivation of meaningful services to rehabilitate the home; the purpose of disclosing these communications to the court was to facilitate the goal of reunifying the family. There was no prejudice in the admission of the medical records of A.M. because the trial court acknowledged that the results were a combination of factors, some of which were not withinappellant's control, and that the overall tone of the report could not therefore be used to the detriment of appellant's position.

The permanency planning hearing conducted on January 9, 2001, was admittedly unorganized as DHS "grappled" with the appropriate recommendation and changed its recommendation from one of reunification to one of termination. However, the back-and-forth nature of the proceedings was due in large part to appellant's revelation that she was again living with Jerry Hurst. At any rate, the lack of organization at the hearing did not rise to the level of being violative of appellant's due process rights.

Lastly, there was no violation of due process in the judge's refusal to recuse herself. The reports DHS filed with the court were statutorily required and were not ex parte communications. The rule is long established that there is a presumption of impartiality on the part of the judges. Mallory v. Hartsfield, 350 Ark. 304, 86 S.W.3d 863 (2002). A judge's decision whether or not to recuse herself is within her discretion and will not be reversed absent an abuse of that discretion. Id.

Affirmed.

Robbins and Neal, JJ., agree.