Kenneth Litchford and Lisa Litchford v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION III

KENNETH LITCHFORD and LISA LITCHFORD

APPELLANTS

V.

ARKANSAS DEP'T OF HUMAN SERVICES

APPELLEE

CA02-898

May 7, 2003

APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT

[NO. J-2000-38]

HON. TED CAPEHART,

JUDGE

AFFIRMED

The Sevier County Circuit Court terminated Kenneth Litchford's and Lisa Litchford's (Edward's) parental rights to their twin daughters, S.L. and T.L., born June 11, 1995, and Kenneth's stepdaughter, B. E., born September 3, 1991. Appellants, who were divorced on September 13, 2001, have filed separate briefs on appeal. They both argue that the trial court's decision to terminate their parental rights was not supported by clear and convincing evidence and that the trial court erred by not filing its written findings of fact and conclusions of law within thirty days after the termination hearing as required by Ark. Code Ann. § 9-27-341(e) (Repl. 2002). In addition, Lisa argues that "[t]he trial court erred by not holding a proper permanency planning hearing in accordance with Ark. Code Ann. § 9-27-338 (Repl. 2002), and did not make a proper determination in finding that the goal should

be changed to termination and did not authorize the filing of a petition to terminate parental rights and did not properly offer a permanency planning report to the parents' counsel as required by statute." We find no error and affirm.

The Arkansas Department of Human Services (hereinafter, "ADHS") filed a petition for emergency custody on June 26, 2000, based on an affidavit filed by one of its employees, Barbara Gore, who alleged that S.L. had told a day-care worker that she and her sister were being sexually abused. The affidavit further provided that the DeQueen Memorial Hospital had performed rape kits on the girls and that the rape kit on T.L. revealed some rectal bleeding and chlamydia. The Sevier County Chancery Court issued an order for emergency custody on June 26, 2000, based on its finding that there was probable cause to believe that the children were dependent/neglected, and the children were placed into the custody of ADHS. In its probable cause order, effective on June 28, 2000, the trial court found that there was probable cause that emergency conditions necessitated the removal of the children from the parents' custody. The court ordered that the children remain in ADHS's custody with supervised visitation pending the adjudication hearing. The court also ordered ADHS to develop an appropriate case plan.

An adjudication hearing was held on August 10, 2000. In its August 29, 2000 order, the court found that the children were dependent/neglected and that the allegations in the petition were true and correct. The court noted that the goal was reunification and ordered the parents to complete the case plan that was to be developed by ADHS and to attend counseling and parenting classes. The court also ordered the parents to submit their twomost recent pay stubs to the caseworker within ten days to determine child support. The court continued supervised visitation. The court specifically noted that the parents did not contest the petition and subsequent adjudication of dependency/neglect and did not contest the children's remaining in the custody of ADHS.

A review hearing took place on February 1, 2001. In its order dated February 8, 2001, the trial court found that appellants had not complied with the case plan in that they had not paid child support and had not completed psychological evaluations. The court found that there would be no visitation based on the recommendation of the children's therapist. Appellants were ordered to pay $25 per week in child support, to complete psychological evaluations, and to attend counseling and parenting classes.

Another review hearing was held on March 1, 2001. In its order dated March 9, 2001, the trial court found that appellants had again failed to comply with the case plan and noted that they had made little progress toward reunification. The court noted that appellants had only recently begun counseling and had just completed psychological evaluations. The court found, however, that the goal would continue to be reunification.

Following a hearing on June 7, 2001, the court granted permission to ADHS to file a petition to terminate parental rights and scheduled another "full-blown" hearing in order to determine whether appellants' rights would ultimately be terminated. In deciding whether to characterize the next hearing as a permanency planning hearing or a termination hearing, the trial judge stated, "I don't see that it makes any difference what you call it. If I decide termination was proper, all it would do would be to put off the inevitable and if I decidedtermination wasn't proper, I'd set some sort of visitation and reunification plan." There was no objection to the court's action in this regard. The court then ordered that appellants be given supervised visitation pending another hearing. On June 8, 2001, ADHS filed its petition to terminate appellants' parental rights.

In its permanency planning order dated June 14, 2001, the trial court changed the goal from reunification to termination based on appellants' failure to comply with the case plan and court orders. Specifically, the court noted that Kenneth had not completed counseling and parenting classes and that Lisa had continued her relationship with Kenneth despite ADHS's suggestion that she end her relationship with him if she wanted her children back. The next hearing took place on January 11, 2002. Toni Arbour, a family service worker, testified that ADHS became involved with the children in October 1999 because the children's home was dirty and because they had come to day care with roaches coming out of their diapers. Arbour also stated that there was a problem with heat in the home. Arbour stated that T.L. has cerebral palsy and requires total care because she cannot feed herself, wears a diaper, and cannot walk and talk at age six years old. She stated that S.L. is developmentally delayed and that B.E. has a low-average IQ. Arbour admitted that, although Gore had stated in her affidavit that T.L. had chlamydia, she did not. She stated that Lisa was working, which left Kenneth as the children's primary caregiver, as he was unemployed. Arbour stated that Kenneth would have been charged with the responsibility of changing T.L.'s diaper and keeping her genital area clean in order to avoid infections. She testified that the children were removed from the home in June 2000 based on allegationsof sexual abuse by Kenneth. She stated that Kenneth was listed on the essential registry of child maltreatment because of two true findings of sexual abuse naming all three children as victims.

Arbour stated that, although the court had ordered counseling for both parents, it had been almost a year since Kenneth had been to counseling. Arbour stated that Kenneth had, however, completed parenting classes. She stated that Kenneth had not paid child support since March 1, 2001. According to Arbour, Kenneth did not have a home and stayed with his ex-father-in-law. Arbour opined that Kenneth had not substantially complied with ADHS's case plan.

Arbour testified that Lisa had stopped going to counseling in April 2001 but that she did complete parenting classes. She stated that Lisa was behind in child support payments. Arbour testified that Lisa had not maintained a stable residence in that she had moved several times. Arbour stated that, although Lisa had finally stated that she believed that Kenneth had sexually abused her daughters, she did not think Lisa was capable of protecting them. Arbour agreed that Lisa had been advised to separate from Kenneth if she wanted to get her children back. Arbour stated that, although Lisa was living in her mother's home that was determined to be a favorable environment for permanent placement, she was concerned because Lisa's mother did not believe the children had been abused. Arbour testified that Lisa had not substantially complied with ADHS's case plan.

Debbie Autrey, a child psychologist and B.E.'s counselor, testified that B.E. initially told her she was scared to tell her anything but that eventually B.E. wrote on paper thatKenneth had put his "wienie" in hers, that it had hurt, and that he had touched her in a bad way. According to Autrey, B.E. also said that T.L. had been hit in the private area. She said B.E. had also been vomiting, tearing up books at school, cursing, and acting out sexually. Autrey opined that B.E. was exhibiting behavior that was typical of children who are sexually abused. She stated that she had recommended that visitation between B.E. and appellants be stopped because Lisa did not believe B.E. and because Kenneth had wanted the girls to sit on his lap.

Janell Barnes, a school-based counselor, testified that she engaged S.L. in "play therapy." She stated that S.L. had undressed the dolls and had attempted to stick crayons in the dolls' bottoms; S.L. had stated that a doll was bleeding and had put a Band-Aid on its bottom; and when replacing the dolls at the end of the day, S.L. had put the face of the baby doll in the crotch of the adult doll. Barnes stated that S.L. had placed the male doll between the legs of the female doll and had moved the male doll up and down in a way suggestive of sexual intercourse. S.L. had played with clay and had named the pieces "Wayne" (what she calls Kenneth) and "Lisa." Barnes testified that S.L. had smashed "Wayne" on the table and had handed "Lisa" to her, saying that she (S.L.) had killed them because of the bad and mean things they did. Barnes testified that she interpreted this as S.L.'s knowledge that Lisa had not protected her from Kenneth. According to Barnes, S.L. talked about something called the "pink game" wherein a piece of candy was placed in her "booty" and Kenneth would remove it with his mouth. Barnes stated that she caught S.L. "hunching" on another child. Barnes testified that S.L. had seemed more secure since she had been in foster careand that her masturbation in the classroom and sexual play during therapy had decreased. Barnes stated that she had no doubt that S.L. had been sexually abused.

Dr. James Robert Blackburn, a psychologist and Lisa's counselor, testified that he had performed psychological evaluations on appellants. He stated that Lisa was dull normal to borderline level of retardation. He felt that Lisa was trusting and simplistic in her ways of dealing with the world. He stated that he did not think that Lisa was an active perpetrator of any sexual abuse but that she may have done things that the girls may have interpreted as sexually motivated or abusive, such as checking them for pin worms or hook worms as she had been instructed to do by her doctor. He explained that it would be unlikely that Lisa would question an authority figure. He was concerned that Lisa lacked the financial means to support her children and would be unable to provide a stable home. He also noted that Lisa was too easily swayed and influenced by others. Dr. Blackburn concluded, however, that Lisa was a loving parent.

Lisa's mother, Edna Edwards, testified that she had no objection to Lisa and the children living with her and that her home study had been approved. She stated that she did not know whether to believe Kenneth had abused her granddaughters.

Dr. Floyd Gonzales, the children's pediatrician for two years, testified that there was very good interaction between appellants and their children during office visits. He was angry that ADHS had instructed the hospital not to notify him in spite of his specific directions to contact him if the hospital received one of his patients because he explained that no emergency room physician is a pediatrician. According to Dr. Gonzales, because T.L.is mentally retarded and wearing diapers, he had given explicit instructions on how to clean her to avoid urinary tract infections, which she was prone to have. Dr. Gonzales stated that it was common for T.L. to be slightly red in the perianal area because of the medication he prescribed for diaper rash. Dr. Gonzales stated that appellants were trying to do the best job they could do. He testified that he did not feel that the children had been abused because he saw no bruises, cigarette burns, broken bones, or black eyes. He said that when he examined the twins on June 27, 2000, he noticed no abnormalities around the genital area. Dr. Gonzales testified that he had no reservations about returning the children to appellants.

Maria London, a certified case manager for the developmentally disabled, testified that she had worked with the twins since they were one year old. She said that appellants were good about keeping appointments and would even call her at home with concerns. She stated that she had never seen any signs that the twins were being abused. London testified that on June 21, 2000, the twins were given a complete physical examination in preparation for attending school and that there were no signs of abuse. She stated that T.L., however, had diaper rash and had been scratching herself. London did not believe the allegations of sexual abuse because she said that the parents' relationship with the children was too close. She stated that she had no reservations about returning the children to either one or both parents.

Lisa testified that she was currently living with her mother because her friends that she had been living with had stolen everything she had. She stated that she was employed full-time and volunteered that the new man she was seeing is her boss. Lisa testified that herformer job had interfered with her counseling because she had been threatened with being fired if she missed any more days.

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. J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parties. Battishill v. Arkansas Dep't of Human Servs., 78 Ark. App. 68, 82 S.W.3d 178 (2002). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. 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. Baker v. Arkansas Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000); Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002). Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id.

Appellants maintain that their parental rights were terminated based solely on allegations of sexual abuse. They allege that the termination hearing was "void of testimony" that they had failed to comply with ADHS's case plan. Finally, they argue that Autrey's testimony, as well as that of other ADHS employees, should be discounted and that more weight should be given to the unbiased testimony by Dr. Gonzales and Ms. London.

There was ample testimony from which the trial court could have found that the allegations of sexual abuse had been substantiated and that appellants had failed to comply with the case plan. As for appellants' contention that Dr. Gonzales and Ms. London were more credible witnesses than Ms. Autrey, this court gives a high degree of deference to the trial judge, who is in a far superior position to observe the parties before him. See Davis v. Office of Child Supp. Enforcem't, 341 Ark. 349, 20 S.W.3d 273 (2000). We cannot say that the trial court clearly erred in its decision to terminate appellants' parental rights to these children. Next, appellants argue that the trial court's failure to file a written order until after thirty-four days had elapsed was a direct violation of Ark. Code Ann. § 9-27-341(e) and that the only equitable remedy is to declare the order null and void. Arkansas Code Annotated section 9-27-341(e), provides that a written order shall be filed by the court within thirty days of the date of the termination hearing. Here, the termination hearing took place on January 11, 2002, and the court did not enter its order until February 14, 2002. In Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999), our supreme court found that the trial court did not lose jurisdiction to enter the order even though four months had elapsed since the termination hearing. The court reasoned that, although Ark. Code Ann. § 9-27-341(d) (Repl. 1998)1 spoke in mandatory terms, the General Assembly did not provide a sanction for an untimely filing. Appellants attempt to distinguish their case from Wade by arguing that the trial court there had rendered its judgment from the bench inopen court at the conclusion of the hearing so that those parties had not suffered any prejudice. This is a distinction without a difference. Here, the trial court's order entered only a few days late is simply not subject to being declared null and void. See Wade, supra.

In addition, Lisa argues that the trial court did not hold a proper permanency planning hearing. Arkansas Code Annotated section 9-27-338(a)(1) provides that no later than twelve months after the date the juvenile enters an out-of-home placement, the court shall hold a permanency planning hearing in order to enter a new disposition in the case. Lisa failed to object to the trial court's failure to follow statutory requirements before proceeding with what amounted to a termination hearing on January 15, 2002. Thus, her issue is not preserved for review, and we will not address it. See Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000).

Lisa also argues that ADHS did not prepare a permanency planning report. Lisa has failed to demonstrate that she objected to ADHS's failure to provide her with a report, and as such, she is raising the issue for the first time on appeal. This court has held that, where an issue was not addressed below, we will not consider it for the first time on appeal. Ark. Dep't of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002). Although Lisa maintains that ADHS did not submit evidence that the goal of the case should be changed from reunification to termination, the record is replete with evidence supporting the goal of termination. Finally, Lisa contends that the trial court did not authorize ADHS to file apetition to terminate her parental rights. The trial judge granted such permission on June 7, 2001, and ADHS filed its petition the following day.

Finding no error, we affirm the trial court's decision to terminate appellants' parental rights.

Affirmed.

Neal and Baker, JJ., agree.

1 Currently, Ark. Code Ann. § 9-27-341(e).