Jennifer Burt v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

JENNIFER BURT

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA02-585

April 16, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TENTH DIVISION [NO. JJN00-1652]

HON. JOYCE WILLIAMS WARREN,

JUDGE

AFFIRMED

The appellant is the mother of six minor children who were found to be dependent-neglected on October 13, 2001. The children were placed in the custody of the Arkansas Department of Human Services (ADHS) while parenting, mental-health, and other services were provided to appellant, with the goal being reunification of the children with their mother. ADHS, believing that appellant did not make consistent progress toward this goal, changed the goal from reunification to termination of parental rights to allow the children to be adopted. After a termination hearing that took place approximately seventeen months after the children were removed from the home, the trial judge found that, despite meaningful and reasonable efforts by ADHS to rehabilitate appellant's home and correct the conditions causing removal, appellant was not a fit and proper parent, and that it was in the

best interests of the children that the petition to terminate parental rights be granted. From that decision, comes this appeal.

For reversal, appellant contends that the evidence is insufficient to support the trial court's order terminating her parental rights. We affirm.

Arkansas Code Annotated § 9-27-341 (Supp. 1999) allows a court of competent jurisdiction to terminate the rights of a parent if a juvenile has been adjudicated by the court to be dependent-neglected, has continued out of the home for twelve 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. Because it is in derogation of the natural rights of the parents, termination of parental rights is an extreme remedy; nevertheless, parental rights will not be allowed to continue to the detriment of the child's welfare and best interests. Walters v. Arkansas Department of Human Services, 77 Ark. App. 191, 72 S.W.3d 533 (2002).

A heavy burden is placed on a party seeking to terminate parental rights. Id. Arkansas Code Annotated § 9-27-341(b)(3) (Supp. 1999) requires that an order terminating parental rights must be based upon a finding by clear and convincing evidence. When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the court's findings that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Wade v. Arkansas Department of Human Services, 337 Ark. 353, 990 S.W.2d 509 (1999). In making this determination, we give great deference to the superior opportunity of the trial court to assess the credibility ofthe witnesses. Dinkins v. Department of Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001).

In the present case, the trial court noted that all six children were previously found to be dependent-neglected based on evidence that appellant left her youngest daughter, then eight months old, unattended in her automobile while appellant and the other children went in to shop at Wal-Mart. Appellant, who had numerous previous contacts with the ADHS concerning neglect, inadequate supervision, and abuse of the children by her boyfriend, was arrested for child endangerment a month or so previously, and was again arrested for child endangerment arising out of the Wal-Mart incident. Appellant admitted that she had used methamphetamine before the Wal-Mart incident and, after the children were removed from the home, it was found that appellant had significant mental health problems. The children were kept in the custody of ADHS, and a case plan was approved that had as its goal the reunification of the children with appellant. Services were provided to appellant to further this goal, random drug screens were ordered, and appellant was ordered to refrain from the use of illegal drugs, to obtain a psychological examination that would be arranged for her, to follow the recommendations of that evaluation, to complete parenting classes, to maintain stable housing appropriate for her and her children, and to maintain employment. The plan called for appellant to develop better judgment regarding the care and protection of her children, and for appellant to have supervised visits with her children and participate in therapy provided to the children.

The trial court found that the children had remained out of the home for seventeen months and, despite meaningful efforts by ADHS to rehabilitate the home and remedy the conditions causing removal, appellant had not remedied those conditions and was not a fit and proper parent for the children. The court also found that reasonable assistance had been offered to appellant to remedy her problems of mental health and instability, but that appellant had not been able to remedy those circumstances so that the children could safely return to the home. Finally, the trial court found that ADHS had an appropriate plan for the permanent placement of the children, and that there was an excellent chance that the children would be adopted.

We cannot say that the trial court clearly erred in its findings. The trial court relied heavily on the testimony of Dr. Deyoub, a forensic psychologist, who had previously examined appellant when she was eighteen years old in 1994, and who concluded another psychological examination of appellant in December 2000. He opined that she suffered from bipolar disorder with polysubstance dependence, as well as from borderline personality disorder. He recommended that appellant see a psychiatrist; obtain proper medication; undergo residential drug treatment followed by outpatient therapy, ongoing parenting therapy, and individual therapy; obtain a stable place to live without domestic abuse; and avoid antisocial relationships. With regard to appellant's prognosis, Dr. Deyoub stated that it would be very difficult for her to overcome her problems because they appeared when she was at such a young age. He stated that her prognosis was poor if she went untreated, andthat treatment would not be effective unless appellant was committed. Finally, he stated that appellant was bright, verbal, and capable of deceiving herself and others.

The record contains a plethora of evidence to support the trial court's finding that, although appellant did eventually begin to make progress toward some of her goals, she remained insufficiently committed to accomplish them within any reasonable amount of time. Appellant had resided in eleven locations since her case was opened, had no stable residence at the time of the termination hearing, and her only employment was working for and spending some nights in the home of an invalid who gave her cigarettes and $20 per day. She had been afforded an opportunity for rehabilitation and therapy at the Dorcas House, but she left that facility without completing the program because she refused to do her assigned chores. Significantly, there was testimony from therapists, based on their observations, that appellant lacked the capacity to adequately supervise and protect all six of her young children simultaneously. Although appellant testified to the contrary, the trial court specifically found that she lacked credibility, tended to minimize her behavior, and demonstrated a lack of the insight necessary to resolve her problems by blaming others for her problems rather than acknowledging her shortcomings and working to improve. Giving due deference to the superior opportunity of the trial court to determine the credibility of the witnesses, we hold that the trial court did not clearly err in granting the petition to terminate appellant's parental rights.

Affirmed.

Hart and Gladwin, JJ., agree.