April Perkins v. Arkansas Department of Human Services

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APRIL 21, 2004


[NO. C 2001-997-3]




Robert J. Gladwin, Judge

Appellant April Perkins is the mother of three children, C.M., A.P., and S.P. She is appealing from an order terminating her parental rights as to C.M. and A.P. Her oldest daughter, S.P., is in the custody of the maternal grandmother, and her situation is not part of this case. Appellant argues on appeal that the Arkansas Department of Human Services (DHS) did not meet its burden of proof. We find no error and affirm.

Before reaching the merits of the parties' arguments, we note that appellant's brief is deficient in that she failed to include in the addendum or abstract the notice of appeal and the complete order of the trial court. A summary of the pleadings and the order from which the appeal is taken are the bare essentials of an abstract. Stuart v. Arkansas Well Water Constr. Comm'n, 343 Ark. 369, 37 S.W.3d 573 (2001). In a civil case, the notice of appeal is also essential because it allows the appellate court to determine whether jurisdiction is proper. Id. The notice of appeal and the order appealed from were, however, included in the record, and our review of the record reveals that the notice of appeal is timely for jurisdictional

purposes. We are authorized to go to the record to affirm a trial court's decision, Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995), and we do so in this instance.

When appellant was divorced in January of 2000, she allowed her husband, Carl Perkins, to have custody of two of their children, C.M. and A.P. She testified that she did not believe she could take care of all three children by herself. Shortly thereafter, Carl was convicted of sexual abuse and sent to the Department of Correction, where he remained throughout this case. With appellant's permission, Carl gave custody of C.M. and A.P. to his father, Gilbert Perkins. On August 24, 2001, a worker with DHS investigated allegations of environmental neglect at the home of Gilbert Perkins, where C.M., A.P., and another child were living. She found the house to be in a dilapidated and unclean condition. The house had broken windows, the kitchen sink did not drain, and there were plates, pots, and pans containing dried food sitting on the counters and kitchen table. There were piles of trash in the kitchen, and the house had a strong pungent odor. It was infested with flies and roaches. The children were wearing filthy clothes, and the two youngest children had on soiled diapers. There was dried food on their clothing and in their hair. The children could not communicate beyond single words, and they were later found to be developmentally delayed. The children exhibited numerous health problems. One child had a speech disorder and fourteen decayed teeth, and the other had a speech impairment and a heart murmur. On September 7, 2001, the DHS worker returned to investigate allegations of physical abuse. Gilbert Perkins admitted he had hit one child with a broom, had hit another child on the arms and legs, and had dragged another child across the floor by her hair. While he admitted committing these acts, he contended that his actions did not hurt the children.

C.M. and A.P. were placed in protective custody pursuant to DHS investigations concerning environmental neglect and physical abuse. A probable cause order was entered on September 12, 2001, wherein the court found probable cause that the children were dependent-neglected and that the emergency situation that necessitated removal of the children continued such that it was necessary for them to remain in DHS custody until the adjudication hearing. On October 1, 2001, Brenda Yarbrough, the mother of appellant and custodian of S.P., filed a motion to intervene, seeking custody of C.M. and A.P. At the October 10, 2001, adjudication hearing, the allegations in the petition for emergency custody were found to be true and correct; the children were adjudicated dependent-neglected; and appellant was ordered to complete parenting classes, follow the case plan, obtain stable and appropriate housing, obtain stable employment, and submit to random drug screens.

A review hearing was held May 1, 2002, at which the trial court found that appellant was not in compliance with court orders and that she was unable to care for the children. Appellant had not found employment, had not obtained stable housing, and had not stayed in contact with DHS. The court continued the children in the custody of DHS.

At the permanency-planning hearing on September 4, 2002, the court found that appellant had not provided a safe home for the children, had not obtained stable employment, and could not meet the needs of the children. The court noted that the children had been out of the home for over a year and that appellant had never once been in compliance with the case plan or orders of the court. The court denied custody to the intervenor, Brenda Yarbrough, and changed the goal of the case to termination of parental rights.

A termination hearing was held on December 12, 2002, at which appellant testified that she did not feel that she was in a position to have custody of her children at that time. The judge terminated appellant's parental rights, noting, among other things, that appellant had never complied with the case plan, that she had subjected the children to emotional trauma, which had harmed the children, and that she had not provided a stable home or contributed to the support of the children. The judge also noted that the children had been out of the home for over twelve months, and that, despite a meaningful effort by DHS to rehabilitate the home and correct the conditions that caused the removal, these conditions had not been remedied. The court also found that, subsequent to the filing of the original petition, other issues or factors had arisen that demonstrated that return of the children to the parental home was contrary to their health, safety, or welfare, and that, despite the offer of appropriate family services, appellant had manifested the incapacity or indifference to remedy the subsequent issues or factors. The court recognized the likelihood that the children would be adopted if the termination petition was granted and the potential harm to the health and safety of the children that would be caused by continuing contact with appellant. The court found that DHS had proven by clear and convincing evidence that it was in the best interest of the children that parental rights be terminated and adoption be established as the permanent case-plan goal. An order of termination was entered, and this appeal followed.

In Johnson v. Arkansas Department of Human Services, 78 Ark. App. 112, 82 S.W.3d 183 (2002), we set forth our standard of review in cases involving termination of parental rights:

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. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. 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. 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. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. 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.

78 Ark. App. at 119, 82 S.W.3d at 187. (Internal citations omitted.)

Appellant contends on appeal that the decision terminating her parental rights was clearly erroneous because DHS did not meet the burden of proof necessary for termination of parental rights. She acknowledges that, at the time of the termination hearing, she was not yet ready to have custody of her children. Her argument on appeal is not that she should have received custody, but rather that the maternal grandmother, intervenor Barbara Yarbrough, should have been given custody of the children. She contends this would have given her time to continue to improve herself and would allow for the eventual reunification of the family.

In rejecting appellant's argument, we first note that appellant has no standing to argue on behalf of the intervenor. See Cassidy v. Arkansas Dep't of Human Servs., 76 Ark. App. 190, 61 S.W.3d 880 (2001); Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986).

Even in the event that appellant's argument can be construed as one made on her own behalf, i.e., that the court declined a solution that would have given her more time to remedy the situation that caused the children to be removed from her custody, appellant cannot prevail. The purpose of the statutes dealing with termination of parental rights is set forth at Ark. Code Ann. ยง 9-27-31(a)(3) (Repl. 2002):

The intent of this section is to provide permanency in a juvenile's life in all instances where the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile's perspective.

(Emphasis added.) At the time of the termination hearing, the children had been out of the home for fifteen consecutive months. They had both shown marked improvement during their time in foster care. During this time, appellant had made no progress at all toward compliance with the case plan or orders of the court. There was nothing to indicate that appellant would at any time in the foreseeable future remedy the conditions that resulted in her children being removed from the home. In deciding not to place the children with the maternal grandmother, the trial court specifically noted that doing so would needlessly continue to put the children's lives on hold, which would be contrary to the provisions of the code. One objective of the termination procedure is to provide permanency for the children, and this cannot be lightly discounted. Bearden v. Arkansas Dep't of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).

After reviewing the evidence in this case, the trial court concluded that there was clear and convincing evidence to support an order terminating appellant's parental rights. We cannot say that this decision was clearly erroneous.


Bird and Roaf, JJ., agree.