John Spangler v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

JOHN SPANGLER

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA 03-147

December 17, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CA 2001-586]

HON. MARK HEWETT,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

The Sebastian County Circuit Court terminated John and Kimberly Spangler's parental rights to their twin daughters, D.S. and H.S. At the time of the termination hearing, John and Kimberly had divorced. This appeal concerns only the termination of John's parental rights to D.S. and H.S. as Kimberly consented to the termination of her rights. On appeal to this court, John argues that Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2001) requires that the trial court make specific findings that the children are adoptable and that potential harm to the health and safety of the children would result from continued contact with him. He also contends that there was insufficient evidence that he manifested an incapacity or indifference to remedy his circumstances. We affirm.

John and Kimberly Spangler had four children together, including the twins, who are the subject of this appeal. The twins were born on July 24, 2000. They both have cystic fibrosis, and D.S. has "short-gut syndrome." The twins require daily G-tube feedings, oral feedings, updraft treatments, CPT treatments, and many medications. D.S. also requires IV parenteral nutrition through a CVL.

On January 23, 2001, DHS opened a protective service case on the Spangler family. DHS offered various services, including supportive services casework, homemaker services, transportation, medical case management services, home health nursing services, and referrals to HUD, Medicaid, Bost, and parenting classes. In its petition for emergency custody, DHS alleged that the Spanglers had refused some of the services offered and did not take advantage of others and that they had missed many of the twins' follow-up appointments at Arkansas Children's Hospital. On September 12, 2001, DHS placed a seventy-two-hour hold on the twins, and the emergency order was entered on September 13, 2001, placing the twins in the custody of DHS. A probable cause hearing was conducted on September 18, 2001, and the trial court found that probable cause existed to continue the twins in DHS's custody.

An adjudication hearing was held on October 23, 2001, at which John did not appear. The twins were found to be dependent-neglected due to medical neglect,1 and the trial court found that it would be in the best interest of the twins to continue in the custody of DHS. On March 19, 2002, a review hearing was held, at which the trial court found that the parents had not complied with the case plan. The goal continued to be reunification. Another review hearing was held on June 18, 2002, at which the trial court specifically found that John had not complied with the case plan in that he did not have stable housing or employment, had criminal charges pending against him, had not undergone counseling, and had refused to submit to random drug screens. On the other hand, the court found that John had completed parenting classes and had undergone a psychological evaluation as ordered. The court again found that it was in the best interest of the twins to continue in the custody of DHS.

At the permanency planning hearing held on September 10, 2002, the trial court found that John had not substantially complied with the case plan and, accordingly, the trial court changed the goal from reunification to termination. DHS filed a petition for termination of parental rights on October 3, 2002, based on two separate grounds, namely, Ark. Code Ann. §§ 9-27-341(b)(3)(B)(i) and (vii).

At the termination hearing held on November 8, 2002, John testified that he had missed only three or four visits with D.S. and H.S. and that he did not have transportation for the visits because DHS had refused to provide it. John testified that he did not attend any staffings where the case plan was discussed because he did not know which ones he had to attend. John stated that he missed at least one drug test and admitted that he had told DHS that he felt like it was a violation of his rights to have to take a drug test. John conceded that it was his fault that nursing services were provided only one or two times. He said that he recalled being told to hold down a job and maintain stable housing and conceded that he had problems doing both of those.

As for his incarceration, John testified that he was sentenced to ten years with seven and one-half years suspended for committing battery and robbery. In explaining those convictions to the court, John stated that he was convicted of third-degree domestic battery, second offense, after an argument with Kimberly turned into a physical fight. He testified that his older children were present during the fracas. As for the robbery conviction, John stated that he took a purse from a lady because he was not himself and because Satan "had hold of [him]." He testified that the crimes occurred after the children were taken from him. He agreed that he was not trying very hard at the time to get his children back but countered that he was under a lot of stress. He stated that he had worked out a deal to change his plea so that his sentence would be served with three and one-half months in boot camp. John requested that his mother be given temporary custody of the children during that period. He stated that, with assistance from the medical field, he could take care of the children. John testified that he had bonded with both daughters despite their extended hospitalizations.

Kimberly testified that, although John was given the opportunity to see the birth of the twins, he did not show up until late the following day. Kimberly testified that during the two months that the twins remained in the hospital, it was her understanding that John did not have any contact with them. Kimberly testified that H.S. was able to come home from the hospital after two months but that D.S. was having difficulties and the doctors thought she was going to die. Kimberly stated that the hospital attempted to contact John about D.S.'s condition but that a police officer had to go and get him. She stated that she did not think that John had bonded with the twins. Kimberly testified that John missed several visits with the children because he wanted to sleep or because he did not want to see the case worker.

Regarding the incident that resulted in John's battery conviction, Kimberly testified that following a verbal disagreement, John followed her as she was walking away and punched her several times in the face. She stated that, while she was on the ground curled into a fetal position, John began kicking her. He then choked her until she lost consciousness. Kimberly testified that John is a violent person when he loses his temper. She stated that she feared for the children's safety if John had custody of them. She testified that she did not think it was in the children's best interest for John to have them because he could not do an adequate job of caring for them any more than she could.

Robbie McKay, the case worker, testified that, although the Spanglers had been provided with a toll-free number to make their required daily calls to the hospital to check on D.S., they did not call. Further, they were supposed to visit D.S. and rarely did, even though they knew that DHS would provide transportation. As for John's interaction with the children, McKay testified that his interaction was inappropriate at most times and that he was very "oppositional" to what she told him to do and not do. She stated that she did not think there was a bond between John and the children and that both children are leery of John because he is so rough with them.

McKay testified that the services that had been provided to the parents included foster care case work, homemaker services, transportation services, referrals for parenting classes, psychological evaluations, referrals to the Guidance Center for counseling and for medication management evaluations, random drug testing, Crisis Center Shelter placement and classes for Kimberly, SCAN for in-home parenting and lay therapy, referrals for HUD, Medicaid, and food stamps, alternative housing lists, and Medicaid van transportation. For the twins, McKay testified that they had been provided TFC placement, nursing services, medical and dental services, occupational therapy, physical therapy, speech therapy, specialized medical care and training, hospitalization, and CASA. McKay stated that the problem with the nursing services was that the Spanglers would not let the nurses inside, would not be home, or simply would not let them do their job. McKay further testified that she did not know of any services that DHS could have offered to the Spanglers that were not offered.

According to McKay, the Spanglers were living at the same address when she gave them notice of the staffings to discuss the case plan but that John did not attend any of them. In her opinion, the Spanglers did not comply with the case plan in any significant way, and her recommendation was termination as to both parents. Further, she stated that she believed the twins were adoptable and that she had, in fact, already identified a prospective adoptive placement.

Jamie Spangler, appellant's mother, testified that she would have no problem having temporary custody of the twins until her son got out of boot camp. She then stated that herfiancé was currently living with her and that they had not set a date for the wedding. Jamie testified that her sons may have thought she was living alone because, although she had been dating her fiancé for two years, her family did not know about him. She stated that her income consisted of her disability benefits. Jamie testified that she has herniated discs, is bipolar, and takes several medications. She stated that she has Hepatitis-C but that she did not consider it a danger or a health problem. Jamie stated that she recently bought a car but did not have her driver's license because of two DWIs on her record from 1999. Jamie admitted that she has had trouble keeping her own children in her custody.

Dr. Daniel Rifkin, a pediatric pulmonologist, testified that the twins were receiving much better care in the home of the foster parents. He said that the twins were receiving care consistently whereas they had not while with the Spanglers. Dr. Rifkin did not recall ever seeing John at the hospital where D.S. stayed for over a year. He confirmed that, if the children did not get the care they needed, they would quickly get sick. Dr. Rifkin testified that the best thing for the children would be for them to be with a person with a history of being responsible and stable.

In its order terminating parental rights, the trial court found that it would be contrary to the children's best interest and welfare to return them to the care and custody of their parents. The court found that D.S. and H.S. had been out of the home in excess of twelve months since being adjudicated dependent-neglected; that reunification could not be achieved within a reasonable period of time as viewed from the children's perspective; and that the parents had not complied with the case plan. In addition, the court found that John was then incarcerated for crimes he committed after the children came into DHS's custody and that, prior to his incarceration, he had failed to maintain stable housing, employment, income, and transportation; he had visited with the twins sporadically; and he had refused to take some drug screens and attend counseling. Further, the court found that DHS had made reasonable efforts to reunite the family throughout the matter by providing various services.

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. Johnson v. Arkansas Dep't of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Id. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). 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). 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. 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. Johnson, supra. 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. Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000).

Arkansas Code Annotated section 9-27-341(b)(3) provides that an order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

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

(B) Of one 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 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.

...

(vii)(a) That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances which prevent return of the juvenile to the family home.

On appeal, appellant argues that there was insufficient evidence that the children were adoptable and that there was potential harm to their health and safety by continued contact with him. He maintains that Ark. Code Ann. § 9-27-341(b)(3) requires that the trial court make specific findings as to both factors. We disagree.

A plain reading of the statute requires only consideration of the two factors rather than specific findings as to each. Here, there is no evidence that the trial court failed to consider those two factors when the court made its finding that it was in the children's best interest to terminate John's parental rights. First, McKay testified that she thought the children were adoptable and that she had already identified a potential adoptive placement. At the conclusion of the termination hearing, the trial court found that the children were readily adoptable, perhaps implicitly based, at least in part, on McKay's testimony. We do not agree with appellant's estimation that McKay's testimony was "scant" evidence concerning the likelihood of adoption. Second, the trial court could not have avoided considering the potential harm to the children's health and safety by continued contact with John because the record is replete with testimony in that regard.

Finally, John argues that there was insufficient evidence that he manifested an incapacity or indifference to remedy his circumstances. In his argument, appellant points to a number of examples that he alleges demonstrated how his efforts to comply with the case plan were primarily thwarted by some action or inaction on the part of DHS. He maintains that the evidence presented was not specific enough in that McKay's testimony was not supported by any documentation proving such things as precisely how the services were offered and exactly how many visits were expected and missed.

Arkansas Code Annotated section 9-27-341(b)(3)(B) requires proof of only one ground. See Wade, supra. The trial court's order terminating parental rights may have been based on section (vii) in part, but the court explicitly found that grounds existed under section (i). Because appellant does not challenge the sufficiency of the evidence as to the ground under this other section, the trial court's decision is affirmed. See Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). In any event, appellant's argument as to the alternative ground is without merit considering the evidence, including John's own admissions. We cannot say that the trial court clearly erred in terminating appellant's parental rights.

Affirmed.

Stroud, C.J., and Baker, J., agree.

1 The Spanglers' two older children were also adjudicated dependent-neglected due to environmental neglect, but, as of the date of the twins' permanency planning hearing, the stated goal was still reunification for them.