Lakesha Perry v. Arkansas Department of Human Services

ca03-041

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

 

LAKESHA PERRY

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-41

January 28, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. JN 2000-1125]

HON. RITA GRUBER,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Appellant Lakesha Perry appeals the termination of her parental rights to her four children.1 For reversal, appellant argues that 1) the trial court erred by replacing the first therapist who worked with the children with another therapist; 2) the trial court erred in finding that she had committed battery against one of her children even though she was convicted by a different circuit court of first-degree battery; and 3) clear and convincing evidence did not support the trial court's termination of her parental rights. We disagree and affirm.

On May 24, 2000, appellant and her live-in boyfriend, Clyde Hatchett, brought her three-year-old daughter, Arkirela Hall, to the emergency room at Arkansas Children's Hospital. Arkirela was admitted into the hospital for treatment of internal bleeding and liver damage. Subsequently, appellee, Arkansas Department of Human Services (DHS), obtained emergency custody of all four of appellant's children, the youngest child Arkirela, five-year-

old Naquajha Hall, six-year-old Quentral Hall, and seven-year-old Shakayla Perry. At the adjudication hearing on July 12, 2000, the trial court found that the children were dependent-neglected and ordered that custody remain with DHS. However, the goal was reunification of the family, and support services were ordered.

Before the adjudication hearing was held, appellant and Hatchett were charged with first-degree battery of Arkirela. At a separate bench trial, appellant was convicted of first-degree battery against Arkirela and was sentenced to five years' probation, as shown by a judgment and commitment order filed April 5, 2001.2

The trial court held a permanency- planning hearing on June 29, 2001, and on August 30, 2001, the trial court entered an order changing the goal from reunification to termination of appellant's parental rights, setting the case for "termination of parental rights based on the lack of progress that the mother and other family members have made towards providing a safe home for the children." The court also found that it was not in the children's best interest to continue family therapy with Shelly Smith and directed DHS to find another appropriate family counselor.3 On July 17, 2002, the circuit court entered an order terminating the parental rights of appellant and the fathers of the children. From that order comes this appeal.

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 parents. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). 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. Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (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. 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.

DHS commenced an investigation of appellant and her children after being notified that Arkirela had been admitted to Arkansas Children's Hospital. Arkirela was diagnosed as suffering from internal bleeding, liver damage, and multiple bruises on her head, face, and body. During an investigation by DHS to determine the cause of Arkirela's injuries, appellant explained to Pamela Randolph, an assessor with DHS, that her other three children had inflicted the injuries suffered by Arkirela during the night while she and Hatchett were asleep in another bedroom. She denied hearing any noises or crying from the children and stated that she only became aware of the injuries at 6:00 a.m. the following morning. DHS placed a 72-hour hold on Arkirela after she was admitted to the hospital, and late that night, DHS took custody of the other three children, and each child was examined by Dr. Christopher Moran and a social worker, Tom Huss, at Arkansas Children's Hospital.

Dr. Christopher Moran testified at the July 12, 2000, adjudication hearing that he examined the three older children and noted that all three children had "obvious bruises." According to Dr. Moran, two of the three children said that appellant had inflicted the injuries on them, and none of the children indicated that the injuries were caused by a sibling. Although Dr. Moran was not the examining physician for Arkirela, he reviewed her medical records and opined that it would have taken a "very substantial force ... to lacerate the liver," and that it was "highly unlikely that one of the children could have caused the injury."

Tom Huss, a psychiatric social worker at Arkansas Children's Hospital, testified that Arkirela had "noticeable injuries." He saw all four children the night they were removed from the home and recalled seeing bruising on their abdomens, back areas, faces, and heads. When Huss interviewed appellant, she told him that Arkirela went to bed at 10:00 p.m. without bruises and that at 5:20 a.m. the following morning, the child was bruised. Appellant told Huss that the other three children inflicted the injuries on Arkirela.

Deborah Carter, a detective with the Little Rock Police Department, interviewed appellant, Hatchett, and the children. According to Carter, both appellant and Hatchett stated that the other children had inflicted Arkirela's injuries. The four children, gave her similar statements, but also stated that Hatchett and appellant had become upset with Arkirela for wetting the bed, that both of them had beaten the child, sometimes alternating, and that at one point, appellant held Arkirela's mouth while Hatchett hit her. Quentral, who slept in a different room from the three girls, told Carter that he woke up during the night to go to the bathroom and saw appellant and Hatchett in Arkirela's room hitting her and that he then saw them take her to the bathroom and run hot water over her. Arkirela told Carter that Hatchett had "stomped her back."

Appellant, however, stated in the interview that she only noticed the injuries at 6:30 a.m. the following morning. Further, Carter testified that the children told her that appellant and Hatchett had "told them to tell everyone that they [the children] had done it," but that the children did not understand the reasoning other than appellant and Hatchett would go to jail if the children told anyone differently.

Ronnie Smith, a Little Rock Police Department detective, stated that in an interview with appellant and Hatchett on May 20, 2000, Hatchett told him that he and appellant had been at a relative's house until 9:45 p.m. and that they put the children to bed at 10:00. Appellant told Smith that she had smoked a couple of joints of marijuana and had a few drinks that evening. Smith also stated that Hatchett said that he was drunk that night.

Shelly Smith, a therapist for Centers for Youth and Family in the Therapeutic Family Homes Program, testified that she saw Shakayla and Quentral in individual therapy, four and six times respectively. Smith stated that she spoke with the children about the injuries inflicted on Arkirela and that both Shakayla and Quentral made conflicting statements about the events. Smith noted that the children never expressed fear of appellant and that their behavior improved after family contact had been reinstated. Smith opined that both of these children benefitted from therapy and that all four would benefit from family visitation.

Nola McClellan, a social worker for Centers for Youth and Family in the Therapeutic Family Homes Program, stated that she met weekly with Quentral and Shakayla and their family for therapy. According to her, Shakayla was quite vocal about being abused and about being afraid of appellant. Quentral talked about his fear of appellant. The termination hearing was held on several different dates: November 5, 2001, December 17, 2001, January 14, 2002, March 5, 2002, April 23, 2002, and June 5, 2002. At the March 5, 2002, portion of the termination-of-parental-rights hearing, McClellan recommended continuing therapeutic foster care and treatment. She further testified that if termination of parental rights was denied, appellant needed counseling to address her anger and abuse. On June 5, 2002, at the remainder of the hearing, McClellan testified that she understood that the children had visits with their younger siblings and appellant at the therapy session. She stated that she was not aware of how the children behaved when they lived with appellant but that their behavior had improved until March of 2002 when visitation with appellant had begun. According to McClellan, it was not "in the children's best interest to continue visitation with the mother."

Ann Brown, a social worker at the UAMS Child Study Center, testified that since the initial interview, appellant had attended three therapy sessions. According to Brown, appellant missed her first appointment and three thereafter. Brown stated that a client is normally discharged from the program after missing three appointments but that appellant had not yet been discharged. Brown noted that appellant usually called within the hour of the appointment to cancel, claiming "transportation problems."

Rosalind Johnson, a case worker for DHS, testified at the March 5, 2002, hearing that she worked with all four children. According to Johnson, appellant completed parenting classes and lay therapy, complied with the drug-screening requirement, and submitted to a psychological evaluation. Johnson stated that appellant was negative on her drug-screening tests in January and March of 2001 but that she was not present for her drug-screening test on December 29, 2000.

Deidra Notto, a case-worker for DHS, testified at the April 23, 2002, hearing that she recommended termination of parental rights as to appellant and the fathers of her children. Notto stated that since May of 2000, appellant had lived in six residences. She noted that appellant did not have any contact with the children from June of 2000 until April 24, 2001,which was the time period when a no-contact order was in effect. Notto stated that since April of 2001, appellant attended all of the scheduled visitations. At the June 5, 2002, hearing, Notto testified that the children had become more aggressive since March of 2002, and she attributed this change in behavior to appellant telling the children that "acting up meant that she did not want to go home." The goal of the case was reunification until June 29, 2001, when appellant had not seen her children for two months and had been convicted of first-degree battery against Arkirela. Notto stated that she was unsure if appellant could rehabilitate herself enough to regain custody of the children.

Dr. Deyoub, a clinical psychologist, performed a psychological evaluation on appellant on December 8, 2000. According to Dr. Deyoub, appellant was very defensive and had difficulty accepting responsibility for her actions. Dr. Deyoub was concerned that if appellant did not receive treatment, ongoing abuse could be possible, and the children would be at risk.

The trial court found that the children were removed from the home because appellant physically abused the youngest child, Arkirela. After the removal of the children from the home, appellant was convicted of first-degree battery, a Class B felony, for the abuse she perpetuated on her daughter. The court found that despite the removal of the children and her conviction, appellant continued to deny that she had perpetrated the abuse on the child and continued to maintain that her other three children had inflicted the injuries on their younger sibling. The trial court's termination of appellant's parental rights was based in part on Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(2), which provides that a court may consider as a ground for termination of parental rights whether a court has found that the parent committed a felony battery or assault that results in serious bodily injury to any child.

The trial court further found that the children had been adjudicated dependent-neglected and had resided outside the home for a period exceeding twelve months.4 Furthermore, the trial court found that the parents have failed to remedy the problems which caused the removal of the children and to rehabilitate their lives despite the offering of appropriate services. The court also found that the children were adoptable.

For her first point on appeal, appellant argues that the trial court erred when it removed Shelly Smith as the children's therapist. In the permanency-planning order filed on August 30, 2001, the trial court found:

The Court does not believe that it would be in the best interest of the children to continue family therapy with Ms. Shelly Smith at Centers for Youth and Families. The Court directs the Department to find another appropriate family counselor to work with the family in consultation with the attorney ad litem and counsel for parent.

Appellant asserts that the trial court should not have permitted DHS to change the children's therapist "merely because DHS did not like what she had to say." Although appellant requested that Smith remain on the case, she did not present any evidence at the permanency-planning hearing or at any subsequent hearings that the change of therapist was not in the best interest of the children. On appeal, appellant argues that Smith's testimony supported appellant's position that the other children were the perpetrators rather than appellant. However, after therapy with Smith was discontinued and Nola McClellan was substituted as the children's therapist, Shakayla recanted her statements that she, not her mother, had injured Arkirela. Appellant fails to provide persuasive arguments or cite authority that the trial judge erred in replacing Smith as the therapist, and therefore, we do not address this issue. Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998).

For her second point on appeal, appellant argues that the trial court erred in finding that because she "was convicted of battery, she committed a battery." Appellant argues that although she was convicted and sentenced to five years' probation and community service for first-degree battery against Arkirela, she never "admitted to abusing Arkirela," and that it is "fundamentally unfair to require parents to admit to abuse they did not cause in order to have their children returned to them." Appellant failed to raise this argument at trial. Because this argument is raised for the first time on appeal, it is not preserved for appellate review. Walters v. Arkansas Dep't of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (2002). Also, appellant fails to cite any authority or present any convincing argument on appeal. Adoption of D.J.L., 341 Ark. 327, 16 S.W.3d 263 (2000).

For her last point on appeal, appellant argues that the trial court erred in terminating her parental rights. Appellant asserts that there was insufficient evidence to support the trial court's findings that DHS made a meaningful effort to correct the conditions that caused removal of the children and that appellant had not remedied those conditions. In support of her contention, appellant notes that she had completed parenting classes and lay therapy, attended visitation until she was arrested and after she was released, and never failed a drug-screening test. Further, appellant states that although Dr. Deyoub performed a psychological evaluation on her and determined that she was anti-social, he did not perform a second evaluation after she was released from incarceration. She argues that none of the treatments recommended by Dr. Deyoub were offered to her by DHS, i.e., behavior management and change peer group, and an AA/NA peer group. Moreover, she asserts that she has quit smoking marijuana. She professed love for her children and denied that she is violent toward them. Further, she obtained an adequate three-bedroom house where she and the children would live.

In the present case, the children were removed from the home in May of 2000 and remained outside the home until the hearing date in June of 2002. There was a substantial amount of evidence concerning the best interest of the children and appellant's failure to remedy the conditions that caused the removal of the children despite DHS's efforts to rehabilitate the home. The trial court terminated appellant's parental rights because of her failure to correct the conditions that caused removal. However, the trial court did not solely rely on that finding but also found that appellant had been convicted of a felony battery that resulted in a serious bodily injury to the youngest child, Arkirela. Only one ground for termination of parental rights needs to be proven by clear and convincing evidence. Wade, supra. In this case, appellant was convicted of a first-degree battery against Arkirela and was sentenced to five years' probation, as shown by a judgment and commitment order filed April 5, 2001. Clearly, appellant's conviction and sentence fit within the purview of Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(2), in that she was convicted of first-degree battery of her youngest child. Therefore, we hold that the trial court's decision to terminate appellant's parental rights was not clearly erroneous.

Affirmed.

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

1 The respective parental rights of the fathers of the children were also terminated; however, the fathers do not appeal those terminations.

2 Hatchett was found not guilty at the criminal trial for battery of Arkirela.

3 The July 17, 2002, order terminating parental rights provides: "Further, the evidence indicated to the Court that it would be in the children's best interest to continue family therapy with Ms. Shelly Smith ...." The omission of the word "not" before the phrase "in the children's best interest" appears to be a typographical error.

4 Arkansas Code Annotated section 9-27-341 (Repl. 2002), states in pertinent part that:

(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:

(i)(a) That a juvenile 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.

(b)It is not necessary that the twelve-month period referenced in this subdivision (b)(3)(B)(i) of this section immediately precede the filing of the petition for termination of parental rights, or that it be for twelve (12) consecutive months....