Edna Washington v. Arkansas Department of Human Services and Minor Children

ca02-924

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA02-924

April 23, 2003

EDNA WASHINGTON AN APPEAL FROM JEFFERSON

APPELLANT COUNTY CIRCUIT COURT,

JUVENILE DIVISION [J98-341-4-6]

V. HON. THOMAS E. BROWN, JUDGE

ARKANSAS DEPARTMENT OF

HUMAN SERVICES and

MINOR CHILDREN

APPELLEES AFFIRMED

Appellant appeals the judgment of the trial court terminating her parental rights to three of her four children. On appeal, appellant argues that the trial court erred: (1) in not projecting a date for her children to return home upon finding that she was in substantial compliance with the case plan; (2) in terminating her parental rights without finding that the children would be harmed if they had continued contact with her; and (3) in terminating her parental rights when the children were placed with a relative. We find no error and affirm.

Appellant is the mother of four small children born to four different putative fathers. Three of her four children are the subjects of this appeal: Trevor Lowe, born November 16, 1991; Alanna Washington, born September 28, 1996; and Ashley Washington, born October22, 1997. The fourth child, Tyreke Washington, born on July 4, 1999, is not part of the appeal. On August 3, 1998, the Arkansas Department of Human Services (DHS) took custody of appellant's children due to her incarceration. DHS had already established a non-court ordered case on this family due to appellant's prior neglect of her children. However, following an adjudication hearing, the children were returned to appellant with the recommendation that the family reside with appellant's mother, Lois Wilson. Shortly thereafter, a special hearing was held on September 16, 1998, after the trial court learned that appellant and her children had moved from Lois Wilson's home in Little Rock to Pine Bluff, Arkansas. Based on this hearing, the trial court directed DHS to provide services to the family and ordered appellant to attend mental health counseling. Appellant was warned that if she was arrested or used drugs, she could lose her children.

In the review hearing held March 3, 1999, the trial court was informed that appellant was expecting her fourth child; that she was receiving TEA benefits; and that she was working in the DHS file room. The trial court found that although appellant had missed some of her mental health counseling appointments, she had substantially complied with the terms of the case plan. However, three months later, on June 15, 1999, the trial court closed this case because of appellant's failure to cooperate with DHS's efforts to provide services to her.

On March 21, 2000, this case was reopened after appellant left her children home alone and was arrested upon returning home intoxicated and in possession of a crack pipe. Following this incident, the children were taken into DHS custody but were to return toappellant after a probable cause hearing. The trial court, however, continued jurisdiction of the case. In an adjudication hearing held May 3, 2000, the children were determined to be dependent-neglected, but appellant was allowed to maintain custody. The trial court warned appellant that if DHS had to take custody of her children again, she may lose them permanently. Nonetheless, on May 15, 2000, appellant was seen intoxicated and swinging a pocket knife at her ten month old child resulting in DHS taking custody of the children again.

On June 29, 2000, an adjudication hearing was held; appellant failed to appear. At this hearing, the children were found to be dependent-neglected and were placed in foster care. Thereafter, a review hearing was held on September 28, 2000; appellant did not appear until after the hearing was completed. The trial court, however, determined that appellant had substantially complied with the case plan but found that returning the children to her was contrary to their best interest. A permanency hearing was scheduled for March 28, 2001, at which time DHS was to recommend reunification, termination of parental rights, or placement with the grandmother, Lois Wilson.

Appellant failed to appear at the March 28, 2001, permanency hearing. At this hearing, the trial court was informed that appellant did not have a job or a home, that she had not visited with the children on a regular basis, and had not shown up for drug screens. Further, there was evidence that appellant tested positive for cocaine on October 3, 2000, and November 27, 2000, and that she recently had been arrested for public intoxication. The trial court accepted DHS's recommendation to proceed toward termination of appellant's parentalrights. DHS filed a petition to terminate appellant's parental rights on May 25, 2001. A review hearing was conducted on September 5, 2001. Evidence was presented that since January 2001, appellant had visited her children only once; that she had not shown up for drug screens; and that she had been arrested just a week prior to this hearing. Appellant also failed the court-ordered drug test given to her that day. A termination hearing was held on October 10 and November 28, 2001. At this hearing, there was testimony that appellant had been discharged from a drug treatment program on March 6, 2001, for non-compliance; that as of April 2001 appellant had lost the housing DHS helped her secure and had not found other appropriate housing; and that appellant was arrested for public intoxication and carrying a weapon on August 29, 2001. There was also testimony that appellant had not maintained steady employment and had not maintained regular contact with her children. Appellant's mother testified that appellant had come to visit the children under the influence of drugs and alcohol. Appellant admitted that after working for only three weeks, she was suspended from her job for two days because her employer smelled alcohol on her. Appellant asked the trial court for more time to overcome her drug and alcohol problems.

On February 7, 2002, the trial court entered an order terminating appellant's parental rights to her three children, ages four, five, and seven. The trial court explained that DHS made diligent efforts to provide services to appellant for almost four years; that her children were removed from her custody on three separate occasions; and that in spite of its admonishments, appellant had not obtained counseling, drug treatment, suitable employmentor suitable housing. The trial court observed that appellant worked with DHS regularly during the early stages of the case but that, over the past year, there was no evidence that appellant had made any improvement or progress. It was undisputed that the children had been out of appellant's home for more than one year. The trial court found that DHS had proven, by clear and convincing evidence, that termination of appellant's parental rights was in the best interest of the children. This appeal followed.

It is well settled that our review of equity cases is de novo, and we will not reverse the trial court's findings unless clearly erroneous. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). A finding is clearly erroneous when, even though there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). In resolving the question of clearly erroneous, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Johnson v. Arkansas Dep't of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). There are no other cases in which the superior position, ability, and opportunity of the trial court to observe the parties carries a greater weight than ones involving the custody of minor children. Taylor v. Taylor, supra.

In addition, when the issue involves terminating parental rights, our case law is clear that the party seeking to terminate the parental relationship bears the heavy burden of proof. J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). The reason for this is that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). Accordingly, an order terminating parental rights must be based on clear and convincing evidence that the termination is in the best interest of the child and that there exists at least one of the circumstances set forth in Ark. Code Ann. § 9-27-341(b)(3)(B) also justifyingtermination of parental rights. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. Johnson v. Arkansas Dep't of Human Servs., supra.

I. A Finding of Substantial Compliance

For her first point, appellant argues that the trial court erred in not projecting a date for her children to return home once it found that she was in substantial compliance with the case plan. Appellant contends that the trial court made the decision to terminate too quickly and without recognizing her efforts to rehabilitate herself and her home and to remedy the conditions that caused the children's removal. In support of her argument, appellant cites Ark. Code Ann. § 9-27-337(b)(1)(C) (Repl. 2002), which provides, in part, that at six-month review hearings:

(i) The court shall project a date for the juvenile to return home or, if there is no projected date for a return home, the projected dates for other alternatives and what those alternatives are.

(ii) This determination must be based on a full and deliberate consideration of all of the following:

(a) The extent of compliance with the case plan, including, but not limited to, a review of the department's care for the health and safety of the juvenile while he or she has been in an out-of-home placement;

(b) The extent of progress that has been made toward alleviating or mitigating the causes of the out-of-home placement.

Appellant did not raise this issue to the trial court. Issues raised for the first time on appeal will not be considered by the appellate court. Arkansas Dep't of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.2d 880 (2002). However, even if we were to address appellant's argument, it is without merit and has no support under this statute. In reading this statute, it is clear that a trial court is not required to project a date of return to the home if it has notdetermined that returning the child to the home is in the best interest of the child. What the statute requires is that the trial court review a case every six months until there is a permanent order of custody, guardianship, or adoption, or the child is returned to the parent, guardian, or custodian and the trial court has discontinued orders for family services. The trial court did so. Compliance with a case plan is but one factor for the trial court to consider in determining whether to set a date for the return of the child to the parent, guardian, or custodian or for other alternatives.

II. Termination of Parental Rights

For her second point, appellant argues that the trial court erred in terminating her parental rights when it did not find that the children would be harmed by continued contact with her. Arkansas Code Annotated section 9-27-341(b)(3)(A) (Repl. 2002) provides that an order terminating parental rights must be based on clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent.

Contrary to what appellant argues, in addition to finding that it was in the best interest of the children to terminate appellant's parental rights and that it was reasonably certain that the children could be adopted, the trial court considered the issue of harm to the children if appellant continued contact with them and expressly stated in its order:

This court is convinced that there is potential harm to these children but of a small nature if the Court does not grant Termination of Parental Rights because the Court is convinced [appellant] makes no real effort to provide for, care for, or interact with any of these children all whom are between the ages of two (2) and ten (10). Thepotential harm would be the occasional visits at the grandmother's home by [appellant] and the possibility that these visits would be occurring while under the influence of alcohol or drugs and would establish to these children that their mother still does not care about them.

Based upon these statements, it is clear that the trial court considered the issue of continued contact in making its decision as to the best interest of the children.

Alternatively, appellant argues that Ark. Code Ann. § 9-27-341 should be read to provide that when a parent has complied with the DHS case plan and court orders, there should be some expectation that the child will be returned to the home at a future date. However, this argument is not persuasive because substantial compliance by the parent is not the benchmark upon which a decision to terminate parental rights lies under this statute; rather it is the best interest of the child that is the primary consideration. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2002); Johnson v. Arkansas Dep't of Human Servs, supra. The objective stated in the statute is to provide permanency in a child's life in all instances where return of the child to the family home is contrary to the child' s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the child's perspective. Ark. Code Ann. 9-27-341(a)(3) (Repl. 2002).

The record shows that since this case was opened four years ago the children have been removed from the appellant's home on three separate occasions. They have remained outside the home for twelve months. Appellant has not maintained meaningful contact with the children since they were placed in foster care. Furthermore, the conditions that caused the children to be removed from the home have not been remedied by appellant, that is,appellant has not maintained stable housing or employment and has continued to use drugs and alcohol.

One set of circumstances that may support a termination of parental rights is that the child "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." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2002). This is exactly what the record showed in this case.

III. Relative Placement

For appellant's final point, she contends that the trial court erred in terminating her parental rights because the children were placed with a relative. Specifically, appellant argues that under Ark. Code Ann. § 9-27-338(a)(4) (Repl. 2002), relative placement and adoption are mutually exclusive remedies. Arkansas Code Annotated section 9-27-338(a)(4) provides, in part, that:

(4) At the hearing, based upon the facts of the case, the court shall enter one (1) of the following permanency goals, listed in order of preference, in accordance with the best interest of the juvenile:

(A) Return the juvenile to the parent, guardian, or custodian at the permanency planning hearing if it is in the best interest of the juvenile and the juvenile's health and safety can be adequately safeguarded if returned home;

(B)(i) Authorize a plan for the termination of the parent-child relationship so that the child is available to be adopted unless the:

(a) Child is being cared for by a relative and termination of parental rights is not in the best interest of the child.

Appellant's argument is misplaced and flies in the face of numerous relative adoptions that have occurred in this state. Under this statute, adoption is not an available remedy when: (1) a child is being cared for by a relative, and (2) it has been determined that termination of parental rights is not in the child's best interest. In this case, the trial court found that termination of the parent-child relationship was in the best interest of the children. Furthermore, appellant erroneously presumes that by terminating her rights, her mother was granted an adoption of the children, which she was not. The trial court noted that it could not predict what would happen in the future, but found that it was in the best interest of the children to terminate appellant's parental rights and permit DHS to proceed towards the goal of either long term foster care or adoption based upon the facts and circumstances occurring in the future.

Thus, based upon a review of the record, giving deference to the trial court, we cannot hold that the trial court erred in terminating appellant's parental rights.

Affirmed.

Robbins and Bird, JJ., agree.