Marcy Cook v. Arkansas Department of Human Services

Annotate this Case
ca03-545

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

MARCY COOK

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-545

February 11, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION

[NO. JJN 01-1688]

HON. WILEY A. BRANTON, JR.,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

The appellant is the natural mother of three minor children who were adjudicated dependent-neglected following a hearing on October 26, 2001. Services were provided to appellant by ADHS in an attempt to reunite the family, but, in an order entered on September 23, 2002, the trial court found that appellant had not complied with the case plan and the goal was changed from reunification to termination of parental rights. After a hearing on November 19, 2002, appellant's parental rights to the children were terminated. From that decision, comes this appeal.

For reversal, appellant contends that her trial counsel was ineffective; that the trial judge was biased against her and her family; that the trial court erred in failing to provide her appropriate mental health services for depression and bipolar disorder; and that the trial court's decision to terminate her parental rights was clearly erroneous. We affirm.

Appellant's first two arguments are not properly before us because they were not raised below. Even assuming arguendo that standards applicable to court-appointed attorneys in criminal cases apply with equal force in dependency-neglect cases, we will not consider ineffective assistance of counsel as a point on direct appeal unless that issue has been considered by the trial court. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003); Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996). Likewise, an argument regarding judicial bias is not preserved for appellate review in the absence of an objection to the allegedly biased statements below or a motion for the trial judge to recuse. Southern Farm Bureau Casualty Insurance v. Daggett, ___ Ark. ___, 118 S.W.3d 525 (2003).

Appellant's remaining points are addressed to the sufficiency of the evidence. Pursuant to Ark. Code Ann. ยง 9-27-341(b) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court's evaluation of the evidence, we will not reverse unless the trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. Furthermore, we will defer to the trial court's evaluation of the credibility of the witnesses. Crawford v. Department of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997).

In the present case, the record shows that the appellant had three children by three different men to whom she was not married. All of the men were felons or abusive. Appellant was told that one of the children had been sexually abused by her current live-in boyfriend. Although the child said she was hurt and appellant believed her, appellant waited until the next day before sending the child to the hospital with appellant's mother. The appellant did not go herself because she had an outstanding warrant and was afraid she would be arrested. An examination did, in fact, reveal evidence of sexual abuse. Afterwards, appellant went to Dorcas House and the children were temporarily removed. The removal became permanent after it was learned that, after staying only a few days, the mother intended to leave Dorcas House to move in with yet another man. Removal was initiated both because this behavior was part of a pattern of moving with the children from one unsuitable relationship to another, and because the mother was likely to be arrested on the outstanding warrant. Soon after the children were removed, appellant married a felon who had spent seven years in the penitentiary for assaulting a police officer and who had a history of using and selling drugs.

At the subsequent adjudication hearing, the court set a goal of reunification, ordered appellant to obtain a stable residence, stable employment, submit to random drug screens, complete parenting classes, and participate in therapy. Appellant was seen by a therapist, who diagnosed her as suffering from a personality disorder. Subsequently, appellant's utilities were disconnected; she moved back and forth between her new husband's home and her mother's home because she had been arguing with her husband and did not know if they would reconcile; she admitted she had refused to submit to court-ordered drug testing because she had been taking drugs; she failed to follow through with arrangements made for her to see a new therapist; and ADHS workers were denied access to appellant's mother's home, where appellant and the children were residing after she and her new husband were ultimately divorced.

On this record, we cannot say that the trial court clearly erred in terminating appellant's parental rights. Although appellant undoubtedly has problems, the trial court properly found that appellant had been offered services to rectify these problems, and had either refused or failed to take advantage of these services. It is true that termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Crawford v. Department of Human Services, supra. Nor can we say that appellant was not afforded appropriate mental health services for her alleged depression and bipolar disorder. Although appellant testified that she felt depressed and that she had previously suffered from bipolar disorder, she denied ever experiencing a manic phase, and appellant's psychological evaluation did not indicate that she suffered from either of these conditions.

Affirmed.

Neal and Vaught, JJ., agree.