Christopher Battishill and Jennifer Battishill v. Arkansas Department of Human Services

Annotate this Case
ca03-611

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CHRISTOPHER BATTISHILL and

JENNIFER BATTISHILL

APPELLANTS

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLEE

CA03-611

February 11, 2004

APPEAL FROM THE GREENE

COUNTY CIRCUIT COURT

J1999-123

HON. RALPH EDWIN WILSON, JR., CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellants Christopher Battishill and Jennifer Battishill appeal the circuit court's termination of their parental rights as to their three minor children. Specifically, they allege that the circuit court erred in denying their motion for a directed verdict. We find no error and affirm.

On August 17, 1999, DHS removed two of the appellants' three children1 from their custody and filed a dependency-neglect action against appellants. On October 1, 1999, the two children were adjudicated dependent-neglected2 but were returned to their parents on a trial placement, and the family began working on a case plan with DHS. There was evidence that appellants continued to neglect the children's medical needs, missed counseling sessions, refused to send the children to specialty day care, failed to cooperate with caseworkers, etc. After appellant's third child, B.B., was born, he developed tortillosis, which prevented his neck muscles from developing normally; and there was evidence that appellants failed to provide adequate care or attention to his medical needs as well.

On August 28, 2000, appellants left Arkansas with their children in violation of a court order. The circuit court issued a pick-up order to have the children returned to foster care. In February 2001, the children were located in Indiana, where the Indiana Department of Human Services placed them into emergency custody. Appellants threatened the workers to such an extent that the children's Indiana Department of Human Services case worker obtained a restraining order against them.

When the three children were returned to Arkansas and placed into the custody of DHS, they were very dirty and manifested additional evidence of significant neglect. A.B.'s return to Arkansas was delayed due to renal failure and dehydration and other complications related to spina bifida. She needed surgery, but had a severe infection because of the failure to receive her medication since leaving Arkansas. She also had some type of fungus on her finger. C.B.'s teeth were rotten to the gum line. B.B., almost one-year-old at the time he returned to Arkansas, had significant developmental delays, could not roll over, had a very misshapen head, and had excess mucus and blood in his nose. The children were returned to foster care on February 5, 2001.

At the time the children were returned to Arkansas, appellants neither moved back to be closer to them nor attempted to regain custody or visitation rights. Neither parent made any significant attempt at contacting the children prior to the initial April 9, 2001 termination hearing.

On April 9, 2001, Judge Goodson, who had been the presiding judge throughout the case, granted DHS's petition to terminate appellants' parental rights as to all three children. However, at that hearing, appellants proceeded pro se, and Judge Goodson did not appoint an attorney to represent them. Appellants then obtained attorney, Mark Rees, who filed an appeal of the termination. This court reversed the termination holding that the appellants' waiver of the statutory right to counsel was not voluntarily and intelligently made. Battishill v. Arkansas Dep't of Human Servs., 78 Ark. App. 68, 82 S.W.3d 178 (2002). DHS filed a petition for review, which was denied on September 5, 2002. Rees informed appellants that their appeal had been successful and that they needed to contact him and petition the court for visitation with the children. No subsequent contact was made by appellants, and Rees successfully petitioned the court to be relieved as counsel.

On September 26, 2002, DHS filed an amended petition to terminate the parental rights of the appellants. The case was transferred to Judge Wilson, who appointed Val P. Price to represent appellants.

On January 8, 2003, a hearing was held on the amended petition to terminate parental rights. Mr. Battishill appeared at the hearing, but Mrs. Battishill did not appear because she was ill and in Indiana. Appellants did not present any evidence at the hearing and moved for a directed verdict at the close of DHS's case. That motion, as well as the renewed motion made at the close of the hearing, were denied. The circuit judge granted DHS's amended petition and terminated the appellants' parental rights with respect to all three children in his order dated February 5, 2003. Appellants filed a timely notice of appeal on March 5, 2003.

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 circuit 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 circuit 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 circuit judge's personal observations. Id.

Subsequent to our reversal and remand of the initial termination decision, DHS filed an amended petition for the termination of appellants' parental rights pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2002), specifically referencing the following portions of the statute:

(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.

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(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile.

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(vi)(a) The court has found the juvenile victim dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile's parent or parents.

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(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent return of the juvenile to the custody of the parent.

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(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:

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(3) Have subjected the child to aggravated circumstances.

The circuit judge, in his order terminating appellants' parental rights that was entered on February 5, 2003, granted the amended petition on the grounds set forth in Ark. Code Ann. §§ 9-27-341(b)(3)(B)(vii)(a) and (ix)(a), finding in part that:

The parents have grossly and inadequately failed to provide for the special medical needs of their children as documented in the transcript of Dr. Janet Crawford; the medical records received by the Court on November 1, 2002 from Arkansas Children's Hospital; and as extensively set forth in Judge David Goodson's termination order of April 9, 2001, filed for the record on April 26, 2001.

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After return of the two older children to the parents on October 1, 1999, at the adjudication hearings, the Court ordered numerous services to be offered DCFS and availed of by the parents.

The Court ordered the parents not to leave Greene County, Arkansas. While the parents did partially comply with court orders and case plans by submitting to psychological evaluations and attending parenting classes, they wholly failed to provide for the older two children's special medical needs thereafter.

The parents neglected [B.B] by not properly stimulating him as an infant. The parents failed [B.B.] by apparently not attending to his needs of being developmentally delayed of sitting up, rolling over, and holding his head up, which resulted in problems including a misshapen head due to his lying flat on his back due to neglect. The parents failed on maintaining proper medical care for [A.B.], who was born with spina bifida and also has a diagnosis of hydrocephalous, which requires extensive medical treatment. [C.B.] was neglected by his parents to the extent that he had extensive dental hygiene problems that caused severe dental and mouth problems, including speech delays.

The parents removed themselves and the children from Greene County, Arkansas[,] to the state of Indiana without court approval; said move exacerbated the situation by violating the court order and the parents not availing themselves of the services and referrals that DCFS in Arkansas had made. These actions put their children in serious health and safety jeopardy in the state of Indiana.

The Court also grants the amended petition under the grounds as set forth in paragraph 5(c) [of the amended petition for termination], finding that Judge Goodson on February 20, 2001, implicitly found that the parents subjected these children to aggravated circumstances in his order of February 20, 2001, finding that the parents subjected these children to "serious and potentially life-threatening neglect of the children's medical needs."

We hold that there was clear and convincing evidence satisfying subsections (b)(3)(B)(vii)(a) and (ix)(a) 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 juveniles 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). In this case, there was evidence presented to the circuit court that would support the findings that it is contrary to the minor children's best interest to return them to the custody of their parents and that termination is in their best interests. Evidence presented included testimony concerning the inability to care for the children, and specifically for their special medical needs. There was testimony at the hearing that A.B. had suffered life-threatening kidney deterioration while in Indiana with appellants in violation of a court order. B.B., while normal at birth, developed tortillosis during the same time frame. The condition, left untreated by appellants, could have caused permanent impairment. When DHS regained custody of B.B. at approximately one year of age, he could not sit up, was very delayed, and had a misshapen head. At the same time, C.B. had teeth that were rotten to the gum line, which impaired his ability to eat and caused great pain and difficulty speaking. The severe stage of decay was evidence of risk of permanent impairment.

Prior to appellants fleeing Arkansas with the children in violation of a court order, DHS provided many appropriate family services designed to remedy the neglect, including: housing assistance; random drug testing; parenting classes; referrals for psychological evaluations; mental health counseling.

Appellants assert that there was no evidence that either of them caused any of their children's medical problems, and that accordingly, termination of their parental rights was not appropriate. Despite the services offered, appellants manifested the incapacity and indifference to properly care for the children. The evidence presented showed that appellants fled the state, failed to seek proper medical care for their children, and placed the children at risk of permanent, life-threatening impairment after the original filing of the dependency-neglect petition. This continuing, knowing neglect on the part of parents is exactly the type of situation covered by the "manifest indifference" grounds in Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a), which states that:

[a]n order forever terminating parental rights shall be based upon a finding by clear and convincing evidence . . . that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent return of the juvenile to the custody of the parent.

The second ground upon which the circuit court's order of termination was based deals with "aggravated circumstances." DHS states that the facts of this case meet the definition of aggravated circumstances, in that the parents have subjected the children to extreme or repeated cruelty, and, because the parents failed to participate in the services offered by DHS, there is a limited likelihood of a successful reunification with either parent. See Ark. Code Ann. § 9-27-303(6) (Supp. 2003).

The circuit judge found that appellants subjected the children to "serious and potentially life-threatening neglect of the children's medical needs." It is within the circuit court's discretion to interpret that life-threatening neglect constitutes "extreme and repeated cruelty" when inflicted over a period of six months, which in the instant case is how long the appellants were "on the run" in Indiana. Such is a question of fact for the circuit court.

Evidence was presented that after the first termination hearing was reversed by this court on June 19, 2002, appellants' attorney informed them of the successful outcome of their appeal and told appellants that the case had been remanded for a new hearing. He explained that they needed to petition the court for visitation, but appellants did not contact him again, and he successfully petitioned to be relieved as counsel. Subsequently, appellants were appointed new counsel, and afforded the opportunity of a new hearing. Not only did they fail to even attempt to contact the children subsequent to the reversal of the initial termination, they failed to put on any evidence whatsoever at the hearing on the amended petition for termination to refute the proof presented by DHS.

In addition to the stated grounds of the trial court, the appellate court, in our de novo review, can alternatively hold that additional grounds for termination were met under Ark. Code Ann. § 9-27-341. See Johnson v. Dep't of Human Servs., supra. Arkansas Code Annotated § 9-27-341(b)(3)(B)(iv) specifically allows for termination where a parent has abandoned the juvenile. Under the juvenile code, abandonment is defined in Ark. Code Ann. § 9-27-303(2) (Supp. 2003) as,

the failure of the parent to provide reasonable support and to maintain regular contact with the juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future and failure to support or maintain regular contact with the juvenile without just cause or an articulated intent to forego parental responsibility.

As previously stated, when the children were returned to DHS custody in February 2002, the parents did not return from Indiana to be closer to them, nor did they attempt to regain custody or even visitation rights. They apparently had a single visit with the children after the initial termination hearing, and understandably, did not have any contact with the children between that time and the reversal of the order of termination by this court on June 19, 2002.

Appellants, however, received notice of their successful appeal and advice from their attorney regarding the need to petition the court for visitation. They took no initiative to re-involve themselves in the case, did not request either visitation or reunification services, and failed to even inform DHS of their current address. When afforded the opportunity of a hearing on the amended petition for termination represented by counsel, Mrs. Battishill did not even attend. While Mr. Battishill was present, he did not testify, and appellants failed to present any evidence to mitigate any of the proof presented against them. They again did not ask for visitation or custody, and failed to present any information concerning their current living conditions. DHS contends that Mr. Battishill's "silence in the face of overwhelming testimony favoring terminations of his parental rights, as well as his lack of a request for visitation, demonstrates that he did not want custody of his children." The foregoing represents clear and convincing evidence of abandonment pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(iv), and further supports the circuit court's grant of the amended petition for termination.

In matters involving the welfare of young children, we give great weight to the circuit judge's personal observations. Due regard must be given to the opportunity of the circuit court to judge the credibility of the witnesses. See Johnson v. Arkansas Dep't of Human Servs., supra. The circuit judge considered all the evidence before the court, including the exhibits, the transcript of Dr. Crawford's testimony, the record in the previous termination hearing held on April 9, 2001, the medical records introduced into evidence on November 1, 2002, and photographs showing the condition of the children when they returned to Arkansas in February 2001. He found that, by clear and convincing evidence, it was in the best interest of the three minor children to terminate the rights of the appellants; that there was potential harm to the children caused by continuing contact with appellants; and that it is highly likely that the children will be adopted. The children are in a pre-adoptive placement, and have experienced progress and improvement there. The evidence shows that appellants made no effort, either personally or through their counsel, to contact DHS concerning the well-being of their children since April 10, 2001. Based on the foregoing, we cannot say that the circuit court's termination of parental rights as to both appellants was not supported by clear and convincing evidence.

Affirmed.

Pittman and Neal, JJ., agree.

1 C.B. and A.B. - appellants' third child, B.B., was not born until April 6, 2000.

2 We note that B.B. was never adjudicated dependent-neglected, but appellants have not raised that issue on appeal. Accordingly, we do not address the issue.