Rachel Forrest v. Arkansas Department of Human Services and Minor Child

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RACHEL FORREST

APPELLANT

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES and MINOR

CHILD

APPELLEES

CA 03-298

DECEMBER 3, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

TENTH DIVISION, [NO. JN 02-634]

HONORABLE JOYCE WILLIAMS

WARREN, JUDGE

AFFIRMED

John B. Robbins, Judge

In this appeal, appellant Rachel Forrest challenges the termination of her parental rights as to her third child, W.F., as entered by the Pulaski County Circuit Court on December 30, 2002. The father, Johnny Forrest, does not appeal. Appellant argues on appeal that the circuit judge erred in failing to specify the grounds for termination and in denying her at least one year within which to remedy the conditions that caused removal of the child. We affirm.

Appellant and her husband Johnny Forrest are the biological parents of four children born between May 1999 and July 2002. The Pulaski County Circuit Court terminated the Forrests' parental rights to all four children in three separate proceedings. The first termination order was filed on October 17, 2002, regarding their parental rights to the two oldest children, M.F. and J.F. Rachel appealed that order, and it was affirmed in an unpublished opinion, Forrest v. Arkansas Dep't of Human Servs., CA03-125 (September 3, 2003). The second order, before us now and concerning W.F., was entered on December 30, 2002. The third order was entered on

March 11, 2003, as to the youngest child, K.F. The appeal regarding K.F., Forrest v. Arkansas Dep't of Human Servs., CA03-473, is currently under submission.

Appellant does not challenge the sufficiency of the evidence to terminate her parental rights, so we do not set forth that review standard or recite the facts in evidence leading up to the termination. This appeal concerns alleged errors of law. DHS filed the petition to terminate appellant's parental rights alleging the following bases provided by Ark. Code Ann. § 9-27-341 (Repl. 2002):

(1) that the parents had their rights involuntarily terminated as to two of W.F.'s siblings;

(2) that W.F. had been subjected to aggravated circumstances in that there is little likelihood that services will result in reunification; and

(3) that subsequent to the petition for dependency/neglect, other facts had arisen demonstrating that returning W.F. to his family was contrary to his health, safety, or welfare, and that despite the offer of appropriate family services, the parents had manifested an incapacity or indifference to remedy the subsequent issues.

At the hearing on this petition in December 2002, it was undisputed that W.F. had been taken from appellant's custody when he was eight months old and that he had been in DHS custody for eight months. The trial judge announced her findings at the end of the termination hearing, and they included a recitation of the DHS's involvement with this family since November 2000 beginning with W.F.'s two older siblings; that parental rights to those siblings were terminated in October 2002; that the same circumstances existing in November 2000 were continuing at the October 2002 termination and continued to exist at present; that despite meaningful effort by DHS to rehabilitate the home, the parents had not remedied the conditions; and that the parents were not fit and proper parents primarily due to their failure to provide a sanitary and safe home in which their child could live despite two years of appropriate services. The written order that followed contained the preceding factual findings and stated that pursuant to provisions of Ark. Code Ann. § 9-27-341, parental rights were terminated. This appeal followed.

Appellant's points on appeal are interrelated, so we discuss them together. Appellant asserts that the trial court failed to specify the grounds proven to support termination of parental rights. Appellant expounds on that argument by stating that based upon the comments by the trial court and the recitation in the order, it must have found solely that despite meaningful effort by DHS to rehabilitate the conditions that caused W.F.'s removal, the parents did not remedy those conditions according to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a). That particular statutory ground mandates that the child also be adjudicated dependent-neglected and be out of the home for twelve months. See Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a). Therefore, appellant states that because she was not given one year from W.F.'s removal within which to remedy the conditions that caused removal, the termination order must be reversed as a matter of law.

We note at the outset that, at the trial court level, appellant never challenged the trial court's termination on this basis. In other words, appellant never suggested to the trial court that it was acting prematurely as a matter of law. Because this argument is raised for the first time on appeal, it is not preserved for appellate review. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001); Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000); Burke v. Strange, 335 Ark. 328, 983 S.W.2d 389 (1998); Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993).

Even were the issue preserved for review, appellant's argument is misplaced. The statutory section to which appellant refers was not alleged in the petition by DHS as a basis to terminate parental rights. Moreover, none of the bases alleged in DHS's petition require a one-year waiting period. Appellant had already had her parental rights terminated as to M.F. and J.F. in October 2002. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) (stating that one ground for termination of parental rights is where there is clear and convincing evidence that the parent is found by a court of competent jurisdiction to have had her parental rights involuntarily terminated as to a sibling of the child at issue). Nor is there a one-year requirement when the parent subjects the child to aggravating circumstances. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3). Indeed, in the event either of those two situations is present, nothing in this chapter of the Code should be construed to require reunification efforts, see id. at subsection (b)(3)(B)(ix)(b), but DHS never requested to halt services. There is no requirement for a one-year waiting period when other factors arise that demonstrate the parent has manifested an incapacity or indifference to remedy the situation that prevents the child's return. See Ark. Code Ann. § 9-27-341 (b)(3)(B)(vii).

Appellant also argues on appeal the trial court erred by failing to specify the grounds for termination and that this requires reversal. If appellant believed there was lack of clarity in the order, appellant could have asked for specific findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52. Her failure to do so constitutes a waiver of the issue. Smith v. Quality Ford, Inc., 324 Ark. 272, 920 S.W.2d 497 (1996); Hickman v. Culberson, 78 Ark. App. 96, 78 S.W.3d 738 (2002).

Nevertheless, we disagree that there was no stated basis for termination. In the oral rendition of findings at the conclusion of the termination hearing, the judge recited the family history of the case, noted that parental rights had been terminated regarding two older children, and lamented that basically nothing had changed with this family since November 2000. The order filed of record recited those same findings and concluded by reading, "Pursuant to Ark. Code Ann. § 9-27-341, parental rights of Rachel Forrest and Johnny Forrest regarding this child are hereby terminated." Having made a finding of at least one ground for termination authorized by section 9-27-341, the trial court did not err.

We affirm.

Pittman and Roaf, JJ., agree.