Howard Robbins and Natosha Robbins v. Arkansas Department of Human Services

ca02-690

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE DIVISION I

HOWARD ROBBINS AND NATOSHA ROBBINS,

APPELLANTS

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA02-690

MARCH 19, 2003

APPEAL FROM SEBASTIAN CIRCUIT, FORT SMITH DISTRICT, NO. JV2001-199,

HONORABLE MARK HEWETT, CIRCUIT JUDGE

AFFIRMED

Appellants Howard and Natosha Robbins appeal the termination of their respective parental rights. They have filed separate briefs and have based their appeals on different grounds. Natosha had her parental rights terminated as to her four boys. She contends on appeal that the evidence was insufficient to support the trial court's termination of her parental rights. Howard had his parental rights terminated as to three of the four boys. He was not the fourth boy's father. Howard contends on appeal that the trial court erred in terminating his parental rights because the Department of Human Services (DHS) did not make a meaningful effort to provide him with services as required by statute. Although not listed in his single point on appeal, Howard also contends in his brief that there was no proof that he willfully failed to provide significant material support in accordance with his means. We disagree with both appellants and affirm the trial court's termination of their parental rights.

On March 19, 2001, a petition for emergency custody was filed, alleging inadequate supervision and environmental neglect. Subsequent hearings attended by Natosha established that the allegations were true and that DHS was making reasonable efforts to provide services. On February 28, 2002, a permanency planning hearing was held in which Howard appeared for the first time. The court again found that DHS had been making reasonable efforts to provide services and further found that the goal of the case plan should be changed to termination of parental rights and adoption. Additionally, the court allowed Howard visitation with his children once a week upon forty-eight hour's notice. Natosha was also allowed to continue visitation that had previously been ordered by the court.

On March 7, 2002, a petition for termination was filed. DHS sought termination of parental rights as to both Natosha and Howard. With regard to Natosha, DHS alleged that the four boys had remained out of Natosha's home for at least one year, and that despite a meaningful effort by DHS to provide services, she was unable or unwilling to remedy the conditions which caused the removal of the children. As to Howard, DHS alleged that he willfully failed to maintain meaningful contact with the children or provide significant material support for over one year.

The applicable statutory law is found in Ark. Code Ann. § 9-27- 341(b) (Supp. 2001), which provides in relevant part:

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

(A) That it is in the best interest of the juvenile, including consideration of thefollowing 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.

. . . .

(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.

On April 15, 2002 a termination hearing was held. During the hearing, the judge took testimony from Natosha, Stan Ostrander, who is a DHS caseworker, and Natosha's grandmother Joyce Hecox. Howard was not present at the hearing but was represented by attorney Dale Arnold.

Natosha testified that she lived with her grandmother because her electricity had been turned off in her apartment. She further testified that she had a one-bedroom apartment that was not sufficient for five children.1 Natosha stated that during the past year, she had been in jail twice and had lived in over twenty places. This included two or three times when shewas homeless and stayed under a bridge. She also testified that she had worked for only four days while the children were in foster care, and that she did not work because she was afraid that her SSI check would get cut.

Natosha also admitted to using methamphetamine three to four times during the pendency of the case. She testified that she had been arrested and convicted of possession of methamphetamine, check, and forgery charges during the recent past, and had in fact pled guilty to at least some of those charges just a few days before the termination hearing. Natosha further testified that she was supposed to be attending counseling sessions but that she had stopped attending them. Finally, she testified that Howard had not sent her money since she left him in June of 2000 and that he had not seen his children from June 2000 until February 2002, in spite of her calls to him asking him to come see them.

Stan Ostrander, a DHS caseworker, testified that he had been assigned this case since the children came into DHS custody on March 15, 2001. He said that he had referred Natosha to parenting classes, adult education classes, and counseling, and had attempted to help her obtain HUD housing on several occasions. Ostrander further testified that Natosha did attend an intake session and an interview with a psychologist; and that she attended seventy-six percent of the scheduled visits with her children, but that he had to remind her during visitation that she was there to visit and not talk on the cell phone. Ostrander said that the children ran wild during the visits. Furthermore, he testified that there was no appreciable improvement in Natosha's parenting abilities after she completed parenting classes and she was unable to display appropriate parenting skills during visitation.

As to Howard Robbins, Ostrander said that he had called Howard's residence in June 2001 and left a message with his girlfriend, who answered the telephone. Ostrander informed her what Howard needed to do if he wanted to try to get custody of his children. Ostrander also mailed him a list of local attorneys. Ostrander further testified that Howard never contacted him in response. Ostrander also said that he was satisfied that Howard knew the children were in the Ft. Smith area since June of 2001 and that he knew they were in DHS custody. Ostrander also testified that he heard Howard's testimony in a previous hearing in which Howard stated that he knew for about nine months that the children were in DHS care. Ostrander stated that Howard had visited the children only once, and the visit was subsequent to the permanency planning hearing held on February 28, 2002. Ostrander said Howard never told him that he wanted to pay child support for his children. At the conclusion of his testimony, Ostrander recommended that parental rights be terminated both as to Natosha and Howard.

Natosha's grandmother, Joyce Hecox, testified as the third and final witness. Hecox told the court that she would be willing to allow the four children into her home. She further testified that Natosha could stay with her as long as she stayed off drugs. Hecox conceded, however, that at her age she would not be able to raise the children if Natosha went back on drugs. Hecox also stated that four children were more than Natosha could handle.

Howard's attorney, Dale Arnold, informed the court that Howard had called him several times and told him that his father was apparently "very, very ill" and in the hospital. Arnold said he was told that they have basically "pulled the plug" on Howard's father and are waiting for his death. He also stated that he has not received any calls back about what happened.

Sandra Schriver, an attorney representing DHS, told the court that she received a call from a woman who said she was Howard's cousin. The woman told Schriver that Howard's father had died in St. Louis and that Howard had to be in St. Louis. Schriver told the woman to fax her an obituary to give to the judge, but she did not receive anything by the time she left for court.

Arnold asked the court for a continuance on Howard's behalf. The court denied the motion, stating that it had received no verification to indicate any need for a continuance. After hearing the testimony in this case, the court terminated Natosha's and Howard's parental rights. This appeal followed.

When the burden of proving a disputed fact is by clear and convincing evidence, the inquiry on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Minton v. Arkansas Dep't of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (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. Dinkins v. Arkansas Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). The burden on the party seeking to terminate the parental relationship is a heavy one under Arkansas law. Malone v. Arkansas Dep't of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Termination of parental rights is an extreme remedy and in derogation of the naturalrights of the parents. Wade v. Arkansas Dep't. of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. With respect to Natosha, pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), DHS had to prove by clear and convincing evidence that (1) termination was in the children's best interest; (2) the children had been adjudicated dependent-neglected; (3) the children had been out of the home for a period in excess of twelve months; (4) DHS made a meaningful effort to rehabilitate the home and correct the conditions that caused removal; and (5) those conditions had not been remedied by her.2

The evidence in this case undisputedly shows that the children had been out of the home in excess of twelve months and that they had been adjudicated dependent-neglected. Furthermore, evidence from the hearings conducted over the course of more than a year showed that DHS had made meaningful efforts to rehabilitate the home and correct the conditions that caused removal. Stan Ostrander, a DHS caseworker testified that he had referred Natosha to parenting classes, adult education classes, counseling, and had attempted to help her obtain H.U.D. housing on several occasions. He further testified that when Natosha would visit the children that he had to remind her that she was there to visit and not talk on the cell phone. Ostrander said that the children ran wild during these visits. Furthermore, he testified that there was no appreciable improvement in Natosha's abilitiesafter she completed parenting classes and she was unable to display appropriate parenting skills during visitation. Based on the aforementioned facts, we hold that the trial court was not clearly erroneous in its decision that DHS made a meaningful effort to rehabilitate the home and correct the conditions that caused the removal. Therefore, we affirm the revocation of Natosha's parental rights.

With respect to Howard, pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a), DHS had to prove by clear and convincing evidence that (1) termination was in the children's best interest; (2) the children had been out of the home for a period in excess of twelve months; and (3) Howard had willfully failed to provide significant material support or failed to maintain meaningful contact with the children.

As stated above, the evidence was undisputed that the children had been out of the home for a period in excess of twelve months. Furthermore, the testimony revealed that Howard had not had any contact with his children from June 2000 until February 2002; and that he provided little or no financial support to his children. Again, we cannot say that the trial court's decision to terminate Howard's parental rights was clearly erroneous. Therefore, we also affirm the termination of Howard's parental rights.

Affirmed.

Hart and Crabtree, JJ., agree.

1 Natosha was pregnant with her fifth child at the time of the termination hearing.

2 Natosha concedes on appeal that grounds for termination were proven, but contends in her brief that the court erred in not allowing her to develop a case plan while she resided with her grandmother.