Suzy Gunderman Morrell v. Arkansas Department of Human Services

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March 3, 2004








Wendell L. Griffen, Judge

Suzy Morrell appeals from a final order terminating her parental rights to her minor child, D.H. Appellant alleges that the evidence was insufficient to support the termination of her parental rights, and she asks this court to reverse the trial court's order. We hold that there was sufficient evidence to terminate the parental rights of the appellant. Thus, we affirm.

On December 4, 2001, the Department of Human Services (DHS) made findings that appellant had neglected D.H.. Appellant was arrested by the Pope County Sheriff for failure to appear and contempt of court charges on December 6, 2001. Appellant left her child in the care of Chris King. When he was unable to provide housing, DHS placed D.H. into foster care on December 7, 2001. At an adjudication hearing that was held on January 11, 2002, a trial court found D.H. dependent-neglected. On January 16, 2002, DHS filed a case plan with the trial court. DHS listed several performance criteria to be met before the goal of reunification could be accomplished. Appellant was ordered to provide DHS with a current address and phone number at all times, attend counseling sessions, find and maintain suitable housing, attend parenting classes, participate in a substance abuse evaluation, and submit to random drug screens.

DHS's court report on May 21, 2002, stated that appellant's address was unknown, and that she had spent a month in jail for hot checks. Appellant missed six out of eight possible visits with her son between June 4, 2002, and July 30, 2002. A permanency planning report was filed on July 26, 2002. On November 1, 2002, the trial court denied DHS's first petition for the termination of appellant's parental rights.

Appellant continued to miss visits with her son. She also missed two counseling appointments on December 15, 2002, and January 13, 2003. DHS filed a second petition for termination of parental rights on January 27, 2003, and appellant's parental rights were terminated after a hearing on March 14, 20031.

The standard of review in termination of parental rights cases is as follows:

We have held that 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. 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.

Bearden v. Arkansas Dep't of Human Servs., 344 Ark. 317, 328, 42 S.W.3d 397, 403-04 (2001) (citing Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 208 (2000)) (citations omitted).

Appellant's only point on appeal is that the evidence was insufficient to support the trial judge's termination order. However, there is uncontroverted evidence that the appellant failed to follow the DHS case plan. The appellant was ordered to, among other things, obtain and maintain stable housing, attend counseling sessions, and to have supervised visitation with D.H.. Appellant lived in ten residences over a fourteen month period. Furthermore, there was at least one occasion where she could not give DHS a current address. Appellant's only source of income was social security. Appellant missed two intake counseling sessions, and there is no proof in the record that she ever attended a session. Furthermore, appellant failed to visit her son regularly. Out of the fourteen months D.H. was in foster care, appellant only visited with him during four of those months. She missed scheduled appointments without explanation, including the visit scheduled on D.H.'s birthday.

Appellant concedes that she had not fully complied with the order, but offers her incarceration as an excuse for her noncompliance. Incarceration does not toll a parent's responsibilities toward her child. Malone v. Arkansas Dep't of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). The tolling of a parent's obligation to comply with reunification orders while they are in jail would be contrary to the goal of the juvenile code to provide permanency for the children. Id. Appellant did not try to contact DHS or her son by mail or phone while she was incarcerated, and she did not contact her probation officer until three weeks after her release.

Pursuant to Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)(a) (Repl. 2002)2, a parent's rights can be terminated if there is clear and convincing evidence that the juvenile has been adjudicated dependent-neglected, has been out of the home for twelve months, and despite an effort by the department to rehabilitate the home, those conditions have not been remedied by the parent. D.H. was adjudicated dependent-neglected, and at the time of the hearing he had remained in foster care for over twelve months. Appellant failed to remedy the conditions that caused the out-of-home placement and did not follow the case plan. There was sufficient evidence for the trial court to terminate the parental rights of the appellant.


Robbins and Neal, JJ., agree.

1 Although appellant announced at the trial court that she wanted to incorporate the record of an earlier proceeding with the record in the proceeding that produced the decision from which this appeal was taken, the record of the earlier proceeding was not included when this appeal was lodged. We have no abstract of that record. We make this observation to remind counsel that when they bring appeals from decisions where more than one hearing is involved, it is incumbent on counsel to bring up the record of all relevant proceedings in order to provide the appellate court with a solid basis for judicial review.

2 Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) was amended in 2003, but they were only stylistic changes.