Jerry Ray and Donna Ray v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

JERRY RAY and DONNA RAY

APPELLANTS

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-763

DECEMBER 10, 2003

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[JV2003-24]

HONORABLE ROBERT EDWARDS, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellants, Jerry Ray and Donna Ray, appeal a decision by the White County Circuit Court terminating their parental rights to their minor daughter, L.R. Appellants have two arguments on appeal. First, they argue that the trial court improperly admitted and considered the prior bad acts of Jerry Ray, including a conviction that was more than ten years old. Second, they argue that the judgment terminating the parental rights of both parents as to their four-month-old daughter was clearly erroneous and should be reversed. We affirm.

Subsequent to termination of parental rights as to appellants' two older children, a seventy-two-hour hold was placed on appellants' infant child on January 31, 2003, after a report of environmental neglect had been received by the Department of Human Services. Shortly thereafter an order of emergency custody was entered. A probable cause hearing was held on February 6, 2003, and the infant was adjudicated dependent-neglected at an adjudication hearing on March 6, 2003. In an order of April 17, 2003, the parental rights of both appellants were terminated. The court found that it was contrary to the child's best interest, health, safety, and welfare to return her to appellants' care and custody. The court further found that clear and convincing evidence showed that appellants had parental rights involuntarily terminated as to two older siblings of the infant child.

During the course of the probable cause hearing, the adjudication hearing, and the termination hearing, there was testimony regarding the ongoing environmental issues in appellants' home. Testimony showed that there were cat feces on the floor, that the carpet was severely stained, that there were cigarette butts lying all around the floor, that there was a dismantled gun in the floor, and that the house was very dirty as a whole. On one visit to the home, a case worker discovered the two front burners on the gas stove had been left on high. At the time, appellants were outside on their way to run errands. There was testimony that the condition of the home never greatly improved.

Services such as transportation to visits, scheduling visits, supervising visits, counseling, transportation to counseling, parenting classes, assistance with hygiene and cleaning tips, and regular home visits have all been provided to appellants in this case. Appellants have each missed more than one scheduled visit with the infant. Testimony showed that appellants loved the child; however, they were unable to remember what they had been taught and were in incapable of becoming competent parents. An example of their lack of parenting skills was shown by their lack of knowledge of how to hold a newborn's head so that it is stabilized and how to burp the newborn on the shoulder without putting the infant's face into a position that would obstruct the child's breathing. During home visits, appellants had trouble completing more than one task at a time. While the infant was in foster care, appellants both missed visitations with the child. Jerry missed a total of five visits. On one occasion when both appellants missed a visit, further investigation revealed that they were having a garage sale that day.

Furthermore, there was testimony that Jerry Ray had a previous conviction for first-degree carnal abuse in 1991. He admitted in his testimony that he had previously sexually abused little boys. There were also allegations that Jerry had sexually abused two females, one of which was his sister, and an allegation of sexual abuse of his son. Jerry has not received treatment or sexual abuse counseling. Donna does not comprehend the fact that Jerry is a previous sex offender and, thus, is unable to protect her child.

Jerry admitted that the home was not really livable; however, he attributed the lack of cleanliness to the fact that he was trying to move to a new residence in order to have a suitable home for his family. Jerry admitted that he was a sex offender; however, he denied the past allegations of sexual abuse regarding his sister or any other female.

Prior to the birth of this child, appellants' parental rights to two older siblings were terminated on November 1, 2002. That case dealt with continuing issues of environmental neglect similar to the allegations in this case. Specifically, there was no running water, other utilities were also cut off, there were holes in the floor large enough to walk into, and there were knives, broken bottle pieces, and trash all over the home.

Appellants first argument on appeal is that the trial court improperly admitted and considered the prior bad acts of Jerry Ray, including a conviction which was more than ten years old. Appellants specifically assert that the conviction was introduced solely to prove that Jerry was a bad person. The Department argues that appellants failed to properly preserve the objection for review in that the objection to the evidence was not stated with specificity and there was no objection to any of the references to the conviction elsewhere in the testimony. At trial, during the family-service worker's testimony regarding the reason for Jerry's prior incarceration, the worker responded that Jerry was sentenced to six and a half years for carnal abuse. Appellants' counsel made the following objection, "Judge, I would object to that. I mean, it's not relevant. That's just so remote in time." The trial judge overruled the objection and admitted the prior judgment and commitment order.

However, a contemporaneous objection is necessary in order to preserve an issue for appellate review. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995) (citing Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992)). In order to properly preserve an issue for appeal, the defendant must timely object at the first opportunity and renew his objection each time the witness is questioned about the matter. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000) (citing Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996)). In the instant case, throughout the rest of the adjudication hearing and the termination there was extensive testimony from Sheryl Wright, Johnna Collins, and Jerry Ray himself regarding Jerry's conviction and other allegations of sexual abuse. However, no further objections were made to any of this testimony. Thus, we hold the issue was not preserved for our review. Moreover, even if the trial court erred in admitting the testimony to which the objection was raised, we find that the testimony was merely cumulative to the other testimony admitted without objection. We will not find prejudicial error where the evidence erroneously admitted was merely cumulative. Callahan, supra.

Second, appellants argue that the judgment terminating the parental rights of both parents as to four-month-old L.R. was clearly erroneous and should be reversed. 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. 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. Id. Clear and convincing evidence is that degree of proof which will produce in the factfinder 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. Id. 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. Id. Arkansas Code Annotated section 9-27-341 (Supp.1999) provides, in relevant part:

(b)(3) 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 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, parents, or putative parent or parents;

(B) Of one (1) or more of the following grounds: ....

(ix)(a ) The parent is found by a court of competent jurisdiction to:

(1 ) Have committed murder or voluntary manslaughter of any child or to have aided or abetted, attempted, conspired, or solicited to commit such murder or voluntary manslaughter;

(2 ) Have committed a felony assault that results in serious bodily injury to any child;

(3 ) Have subjected the child to aggravated circumstances; or

(4 ) [Have] had his parental rights involuntarily terminated as to a sibling of the child.

It is undisputed that there was clear and convincing evidence that appellants' parental rights had been involuntarily terminated as to this infant's two older siblings, satisfiing subsection (b)(3)(B)(ix)(a)(4) of the statute. However, before parental rights may be terminated, there must also be clear and convincing evidence that it is in the best interest of the juvenile pursuant to subsections (b)(3)(A)(i) and (ii). Conn v. Arkansas Dep't of Human Servs., 79 Ark. App. 195, 85 S.W.3d 558 (2002) (holding that even when subsection (b)(3)(B)(ix)(a)(4) is satisfied with clear and convincing evidence that parental rights have been involuntarily terminated as to a sibling, parental rights cannot be terminated unless there is also clear and convincing evidence pursuant to subsections (b)(3)(A)(i) and (ii) that it is in the best interest of the juvenile). In this case, there was evidence presented to the trial court that would support the findings that it is contrary to the minor child's best interest to return her to the custody of her parents and that termination is in her best interests. Evidence presented included testimony concerning the inability to care for the child. Testimony showed that appellants had difficulty retaining the information regarding parenting skills and had difficulty putting the information into practice. Further, the evidence demonstrated appellants' ongoing failure to improve the conditions of their home. Finally, Jerry's admission that he was a convicted sex offender coupled with Donna's inability to understand or accept his status as a sex offender demonstrated that she would be unable to protect the child. Based on the foregoing, we cannot say that the trial court's termination of parental rights as to both appellants was not supported by clear and convincing evidence. Therefore, we affirm.

Stroud, C.J., and Gladwin, J., agree.