Jimmy Harris v. Arkansas Department of Human Services

ca03-235

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

JIMMY HARRIS,

APPELLANT

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES,

APPELLEE

CA03-235

FEBRUARY 4, 2004

APPEAL FROM THE UNION COUNTY CIRCUIT COURT,

NO. J-2000-78-3,

HON. EDWIN A. KEATON, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Jimmy Harris brings this appeal from an order granting permanent custody of his two minor children to a third party. He contends that because the court did not make a finding that he was an unfit parent, it was error for the court to place the children with a third party. We find no error, and we affirm.

Appellant and his ex-wife, Angela, are the parents of Devin, a girl, who was born on 10/19/92; and a boy, Jacob, who was born on 5/18/95. The Harrises divorced, and Angela was awarded custody of the children. Upon a petition filed by the Department of Human Services (DHS) alleging that the children were dependent-neglected, the Union County Circuit Court ordered DHS to take custody of the children from Angela on April 19, 2000. Following a probable cause hearing on April 24, the children were placed by the court in the temporary custody of Don and Mary Cameron. At the adjudication hearing on May 12, 2000, appellant requested that he be awarded custody of the children. In his testimony at the hearing, he admitted that he often drank about a six pack of beer at night. His request for custody of the children was denied upon the court's finding that he had a "drinking problem." He was granted

supervised visitation with the children and was ordered not to consume alcohol before the visits. He was also ordered to undergo an alcohol assessment and to undergo treatment according to the recommendations of the assessment.

The case was reviewed on August 21, 2000, after which it was ordered that the children should remain in the Camerons' custody. At that time, appellant was authorized two hours of unsupervised visitation per week and one unsupervised overnight visitation per month, contingent upon his not consuming alcohol during visits. However, the court refused to grant appellant custody because of "his drinking" and because his co-tenant was a man who had been convicted of sexual abuse against a young female child. The next review took place on November 20, 2000, at which time the children remained in the custody of the Camerons. In a court report, it was noted that appellant was in counseling, that he had undergone an alcohol assessment program, and that, as a result of the assessment, he had been found not to have an alcohol problem. However, the court noted that appellant had spent thirty days in jail in September, but that it was unclear whether it was the result of a new DWI1 conviction or was a sentence served for an earlier conviction. Appellant admitted to being a "problem drinker," and was ordered to complete a Second Offender's Alcohol Program. Although there was testimony that when appellant visits with his children, "he appears happy to see them," his visitation was changed to supervised because of his recent jail time. No changes were made as a result of a December 18, 2000, review.

At the next review hearing on April 21, 2001, the court found that both parents were complying with the case plan, including participation in family counseling. Angela was given a thirty-day trial visitation and appellant's visitation was to take place at her home, with Angela being the supervisor of those visits. Appellant was excused from attending parenting classes. At the May 7, 2001, review hearing, appellant requested that, if Angela was not to be awarded custody of the children, he be awarded custody, rather than having the children placed in foster care. The court ordered that a home study be conducted on appellant's home. On June 4, 2001, the court found that it was in the best interest of the children that they be placed in the custody of their mother, Angela, granting appellant six weeks of summer visitation and ordering both parents not to consume alcohol when they were around the children. Appellant testified that he would not have any alcohol in his home when the children were present. It was also reported that appellant's home study had been completed. The study concluded:

A favorable home study was done on the home of Mr. Jimmy Harris .... Due to the information provided, it is the opinion of the evaluator that if things don't work out with the children and their mother, that the children should be given a chance with their father, Jimmy Harris. Mr. Harris loves those children a lot and is willing to do any and everything possible for those children.

Appellant was granted six non-consecutive weeks of summer visitation. On August 6, 2001, appellant testified that he was not drinking alcoholic beverages when the children were with him, and the court found that appellant's visitations with the children were going well. Appellant requested that the children be placed in his custody, stating that he had purchased beds for them and a television for their bedroom. He also stated that although he consumes alcohol when the children are with their mother, he does not drink when the children are in his presence. Stacy Loftin from DHS testified that she had visited appellant's home and that she had intended to recommend that the children be placed in his custody. However, she changed her mind after learning that he had a drinking problem and had refused to go to Alcoholics Anonymous. The court denied appellant's request for custody and ordered that the children remain in the custody of their mother. He was granted visitation on alternating weekends. On September 6, 2001, the case was closed, with Angela being awarded custody of the children, and appellant being granted "reasonable and seasonable" visitation.

Approximately seven months later, a new petition for dependency neglect was filed. The petition was based upon the contents of an affidavit of Susan Bledsoe, Jacob's speech therapist at school. Ms. Bledsoe's affidavit stated that she had regular contact with the Harris children and their mother, Angela; that on various occasions she had noticed that the children had not been bathed; that on April 8, 2002, the children returned to school at approximately 5:00 p.m. because their mother was not at home and they were locked out of their home; that Angela had confided in her that Angela had been exchanging sexual favors for crack cocaine, whether the children were present in the home or not; that Angela was observed weekly at the school to be notably intoxicated when she picked up the children; that she had observed deterioration in Devin's actions and behavior, which she believed to be the result of Angela's actions or neglect; and that she believed the children were at risk of serious harm. On June 4, 2002, Angela Harris was arrested and jailed for delivery of a controlled substance and conspiracy to deliver a controlled substance. On June 12, Angela Harris agreed to an order giving temporary custody of the children to Bledsoe, who had cared for Jacob and Devin when the children were in Angela's custody.

On July 15, 2002, the court conducted a hearing on DHS's new petition and, without objection by Angela Harris, found the children to be dependent-neglected. Appellant asked again that custody of the children be placed with him or, alternatively, with his sister, Dorothy Thomas. Sharon Harris, a family services worker for the Division of Children and Family Services at DHS, testified that she did not contact appellant when the second protective service case was opened in May. Although she admitted that she had not seen the children in their father's presence, it was her recommendation that the children remain in the custody of Suzanne Bledsoe.

Mary Cameron, the children's previous custodian, testified that she was contacted by the police the day that Angela Harris was arrested, that she went to the Smackover Police Department, that she informed the police that the children's father "usually comes intoxicated," and that, because Bledsoe had temporary custody of the children, the police should contact her to care for the children. Cameron stated that when appellant came to the police station to pick up Angela Harris, he was intoxicated and wanted to drive Angela's car. Cameron stated that appellant was arrested for his fourth DWI after he had picked up Angela from jail.

Angela Harris testified that before the children were found to be dependent-neglected the second time, appellant had visitation with them and that during the times that she would bring the children to visit, she had seen appellant drink a couple of beers. She stated that she remembered that one night appellant had drunk a little bit and had fallen asleep or passed out with a cigarette, catching the couch on fire. She testified that the incident frightened Devin. Angela Harris testified, "That's why when I take them down there I stay with them so they don't stay alone with their father."

Appellant testified at the hearing that he waited about a week and a half after Angela Harris had been arrested to contact DHS about his children. He stated that he loved his children and that he wanted custody of them, and that if he were given custody, he would not drink in their presence. He stated, "I believe as long as I was not drinking in front of them and not becoming intoxicated it was okay, cause I could still take a drink as long as they didn't see it." He admitted to getting arrested for his fourth DWI the day that he picked up Angela from jail. He said he served five days in the Union County jail.

The court entered an order finding that "return of custody of either parent is contrary to the welfare of the juveniles, and continuation of custody in Suzanne Bledsoe is in the best interests of and necessary to the protection of the juveniles' health and safety." The court denied appellant's request for custody, noting that the children were in need of stability, which it stated could best be maintained by the children remaining in Bledsoe's custody. In denying appellant's request for custody, the court stated, "It's the same old drinking problem that he had last we were here. ... He spent time in jail. That case hasn't been adjudicated yet but when they arrest you for DWI, now they suspend your driver's license administratively, so he's without transportation this time around and that's because his license has been suspended." The court granted appellant and Angela Harris supervised visitation, and it scheduled a permanency planning hearing for September 18, 2002.

At that permanency planning hearing, Sharon Harris of DHS testified that she had completed a home study on the home of Dorothy Thomas, appellant's sister, and that she was recommending permanent custody of Devin and Jacob be placed with Bledsoe. She stated that appellant had completed an alcohol treatment program through the Veterans Administration. She objected to appellant's request for custody because "these kids are in a stable home environment at this time and in a Christian home environment free of any alcohol, drugs, and I feel it's in these kids' best interest to provide them with that security and allow them to be children in a place where they feel like they are safe. As indicated in the children's letter, they do not feel safe with their parents."

Bledsoe also testified at the hearing, stating that she wanted permanent custody of the children. Although she had not been present when the children were with appellant, Devin and Jacob had informed her that they are afraid of appellant. She said the children are scared to stay overnight with appellant because he smokes and falls asleep, and they are afraid he will burn down the house. Bledsoe also stated that Devin had told her that she feels uncomfortable when her father asks Devin to get him a beer. Angela Harris testified that she had been staying with appellant since her arrest and that he had not used alcohol around her.

Appellant also testified that he was willing to do anything necessary to prove to the court that he does not consume alcohol around the children. In addition, he stated that in the event the court did not feel that it would be in the best interest of the children for Angela to live with him, then he had made arrangements for her to live with his sister. He stated that he had refused to attend Alcoholics Anonymous because he is agnostic and objected to the religious tone of the meetings, but that he had completed the VA alcohol treatment program even though he did not think it was necessary. He said that he did so only to "improve my chances to get my kids back."

At the conclusion of the permanency planning hearing, the court found that return of the custody of the children was contrary to their welfare, health and safety; that the progress of the parents had been minimal; and that it was in the best interests of the children to be placed in the long-term permanent custody of Bledsoe. The court stated:

On May 12th there was testimony at the time from Mr. Harris that he, `was drinking about a six pack of beer each night.' He testified, `He didn't have a drinking problem and he drank at least a twelve pack over the course of each weekend.' An alcohol assessment was ordered for Mr. Harris, that he be treated in accordance with that assessment, supervised visitation was set up for both parents and the Court ordered Mr. Harris not to consume alcohol before any of the visits that he would have with the children. Then on August 21st there was a review. Mr. Harris' visitation was increased to two hours per week unsupervised with one night per month, no drinking during visits .... November the 20th review, Mr. Harris at that time was still employed at Creech's Tire, he admitted to `being a problem drinker.' He was ordered to complete a second offenders alcohol offenders program through South Arkansas Regional Health Center. We set up weekly visitation for the father and went backwards and said now the visitation needed to be supervised. It should be noted that he'd spent thirty days in jail in September of 2000, that was during the review period for a DWI.

August 6th visitation for the children with the father was going well and was extended to every other weekend. Father was not attending AA, he stated that, `He didn't have to because he was practicing abstinence, he just didn't drink when the children were with him.' We closed the case on September the 6th. ... The drinking for the father has been a problem from the Court's view throughout the case. At the first hearing, initially he said, `It's fifteen minutes apart for a beer.' He went up to twenty when I asked him the question about it but it almost sounded like he was just knocking one down after the other until the six pack was gone. He said then he took a bath sometimes and ate a meal and all that and I guess that that could happen that way too. But, if we were looking at maybe a six pack of beer per night and a person goes home and works and functions every day, but is having all kinds of adverse effects on his life, when you look at the DWI's over a period of time, they keep popping up. And even there have been instances, one [sic] least one instance, where there was a charge, no conviction, but he [was] arrested for a DWI. Now that may not mean much, but it does to children, if for whatever reason dad doesn't come home on a given night. The interruption by the children could have been by the mother, maybe so, but still if you're talking about being the caretaker and the responsible person and being there for the children, I think the drinking is a problem. ... And one thing I'm convinced of from all of this is that you don't believe that your drinking is a problem, the Court does. ... I don't see how in the world today, from the evidence before the Court that I could send these kids back to the father's home. There's been testimony about the fear, testimony about some of the concerns that those children have in coming back.

The court stated in its order that the juveniles were no longer in need of the services of DHS. The order stated, in part, "Therefore, the Court orders that the Department is no longer responsible for providing any services in this matter, the juveniles shall be placed in the long term permanent custody of Suzanne Bledsoe, and no further review hearings shall be required by this Court." The court granted the parents reasonable visitation and stated that the order did not constitute a termination of parental rights.

Appellant contends that the court erred in granting custody to Bledsoe without making a specific finding that he was unfit. He contends that he did what he was asked of him by DHS and had achieved all the goals set by them: he completed the second offender program, had a favorable home study, and had extended visitation with the children. He contends that the court, the guardian ad litem, and DHS became prejudiced against him when he admitted that he previously drank a six pack of beer after he got off work and when the children were not present, and that he was an agnostic. He states that the worst that can be said of him is that he had one incident in which he fell asleep after work on the couch while he was smoking and burned a hole in the couch, and that he had been charged with four DWIs. He states, however, that there is no evidence that he drinks and drives with his children. He states that even though he is not an alcoholic he completed an inpatient treatment program through the Veteran's Administration. He states that no evidence exists that he continues to drink. He contends that the court should not have placed any weight in the fact that Angela, who he contends is mentally disturbed, had given temporary custody to a third-party rather than him. He requests this court to reverse the case because he has faithfully exercised visitation, he has a stable job, a favorable home study was completed, and he is able to provide a proper home for his children. In addition, he was never proven or declared to be unfit.

Arkansas Code Annotated section 9-27-325(h)(2)(C) (Repl. 2002) states that the burden of proof in dependency-neglect hearings shall be by a preponderance of the evidence. On appeal, this court will not reverse a trial court's findings unless they are clearly erroneous, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Nance v. Ark. Dep't of Human Servs., 316 Ark. 43, 870 S.W.2d 721 (1994). Arkansas Code Annotated section 9-27-334(a)(3)(Repl. 2002) states:

(a) If a juvenile is found to be dependent-neglected, the court may enter an order making any of the following dispositions

...

(3) If it is in the best interest of the juvenile, grant permanent custody to an individual upon proof that the parent or guardian from whom the juvenile has been removed has not complied with the orders of the court or upon proof that no reunifications services should be required to reunite the juvenile with his or her parent or parents and that no further services or periodic reviews are required.

We do not agree with the appellant's argument that the court erred in denying him custody where there was no finding or showing of unfitness and in granting permanent custody to a third party. We hold that the court's findings that appellant had not complied with the orders of the court, and that no reunification services or no further periodic reviews should be required, were not clearly erroneous.

The statutes require that the court find by a preponderance of the evidence (a) that the appellant had not complied with the court orders or (b) that no reunification services should be required to reunite the appellant with his or her parent or parents and that no further services or periodic reviews should be required.

Evidence was presented at the September 16, 2002, hearing that appellant had not fully complied with the orders of the court. There was testimony that appellant had been arrested for his fourth DWI in June 2002. Sharon Harris of DHS testified that before she would recommend placing custody of the children with appellant, he would have to remain "free of any alcohol" for an extended period of time. Grace Palculict, the children's counselor, testified that the children had informed her that they were afraid to stay overnight with their father and they had concerns with "the alcohol." Devin had stated that her father falls asleep when he smokes and she is afraid the house will catch on fire. In addition, Devin stated that she was uncomfortable when her father asked her to get him a beer.

Angela Harris testified that since she was released from the drug and alcohol abuse treatment program, she has been living with appellant. She stated that since that time, she has not observed him drinking. She said that since he has completed the alcohol abuse program, she feels comfortable with him having custody of their children. She also admitted that after she had completed the alcohol-abuse program, she drank a beer before she and appellant went to visitation with the children. Harris also testified that Angela Harris was living with him because she "was so mentally unstable" that he was afraid for her to be by herself. He admitted that after Angela was arrested and he picked her up from jail, he was arrested for driving while intoxicated and he waited two weeks to contact DHS regarding the whereabouts of his children. Before entering the VA program, he admitted to drinking six beers a day. He also stated, "Prior to rehab, I had cut down but because the kids were with their mother and everything [sic] I had slowly crept up to about three six packs a week, where I had been down to a six pack a week." He testified that in the past he had refused to attend any Alcoholics Anonymous meetings because he is an agnostic. He also stated that he had not attended any AA meetings since completing the VA program "because of laziness."

There was also proof supporting the court's finding that no reunifications services should be required to reunite the children with appellant and that no further services or periodic reviews should be required. Arkansas Code Annotated section 9-27-338(E)(i) states that at the permanency planning hearing, the court has the option of ordering the continuation of the goal of reunification "only when the parent is complying with the established case plan and orders of the court, making significant measurable progress towards achieving the goals established in the case plan, and diligently working toward reunification." In addition, section 9-27-338(E)(iii) & (iv) states:

(iii) A parent's resumption of contact or overtures toward participating in the case plan or following the orders of the court in the months or weeks immediately preceding the permanency hearing are insufficient grounds for retaining reunification as the permanency plan.

(iv) The burden is on the parent to demonstrate genuine, sustainable investment in completing the requirements of the case plan and following the orders of the court in order to retain reunification as the permanency goal.

Sharon Harris, who prepared the court report for the permanency hearing, stated that the children do not feel safe with their parents. Suzanne Bledsoe testified that before Angela Harris was arrested and entered into a drug-treatment program, she agreed to a temporary order granting custody of the children to Bledsoe, stating that she would rather Bledsoe have custody of the children than appellant. Stacy Bouzigard, a court appointed special advocate, stated that she had been working on the case since it was reopened, and she recommended placing permanent custody of the children with the Bledsoes. She also recommended "closing the case." The children first came into custody of DHS in April 2000, and it was not until August 2002, shortly before the final permanency hearing, that appellant attended the VA program. Appellant also stated that he understood the court was "past the point that termination of parental rights could be an option."

Based upon the foregoing, we cannot say that the court erred in finding by a preponderance of the evidence that it was in the best interest of the children to grant permanent custody to Bledsoe after the court was presented proof that appellant had not complied with the orders of the court, or that no reunification services were required to reunite appellant with his children and that no further services or reviews were required.

Affirmed.

Hart and Vaught, JJ., agree.

1 At the time of the final permanency planning hearing, appellant had been arrested four times for driving while intoxicated.