Fatin Odoemenam and Minor Child v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

FATIN ODOEMENAM and

MINOR CHILD

APPELLANTS

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-504

November 10, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[JJN2003-457]

HON. WILEY A. BRANTON, JR.,

CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Fatin Odoemenam appeals from an order terminating her parental rights. On appeal, Odoemenam argues that because the Arkansas Department of Human Services (DHS) failed to meet its required burden of proof, the trial court's termination order is not supported by sufficient evidence. We affirm.

On July 30, 1996, Odoemenam adopted a child from DHS custody, following the termination of the child's biological parents' rights. At the time of the adoption, the child was six years old. In March 2003, after receiving reports of an unclean and odorous home environment, DHS took the child into emergency custody. A probable cause hearing was also held in March 2003, and the trial court found that there was probable cause that the child was dependent-neglected and that because the emergency conditions that necessitated the child's removal continued the child should remain in DHS's care.

An adjudication hearing was held in April 2003. The court concluded that Odoemenam "neglected her child's ... psychological, educational, environmental, and medical needs." The court further found that the child's home was "infested with rodents, and there was the oder (sic) of dead animals in the home." As a result of the infestation, the child was afraid to bathe because rats would jump into the bath with her. The court admonished Odoemenam for thwarting efforts by the school district and DHS to help her remedy the deficiencies. In order to meet the goal of reunification, Odoemenam was ordered to attend individual therapy (and follow the therapist's recommendations), take all of her medication, repair and maintain her home to applicable city-code standards, and allow DHS workers into her home. The court also ordered a psychological examination of the child. At this point the case was "short tracked," and a permanency-planning hearing was scheduled for September 23, 2003.

After the permanency-planning hearing, the court changed the goal of the case to termination. This changed goal resulted from Odoemenam's minimal progress toward achieving the goal of reunification. The court was particularly concerned with the fact that Odoemenam discontinued her mental-health services. The court also relied on the child's psychological evaluation indicating that the child could not "thrive and grow in her mother's home." The child was ordered to remain in therapeutic foster care until an adoption could be finalized.

In November 2003, DHS filed an amended petition for termination of Odoemenam's parental rights. At the hearing on the motion, held on December 16, 2003, the court lamented that the system had "failed this child miserably, at least once," and noted thatOdoemenam's mental-health condition could not have been much better at the time of the DHS-approved adoption. The court also found that reunification, even if the case were continued for a term of years, was extremely unlikely. The court expressed concern that the child would not be able to thrive if she were returned to Odoemenam's custody due to the fact that Odoemenam was an unfit parent and was unwilling or unable to make the necessary changes. An order terminating Odoemenam's parental rights was filed on January 29, 2004. This timely appeal followed.

Odoemenam argues that DHS failed to meet the heavy burden of proof required to support the termination of her rights as a parent. Indeed, the burden is onerous; however, parental rights will not be enforced to the detriment and destruction of the health and well being of the child. Johnson v. Ark. Dep't of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). The trial court's order terminating parental rights will be affirmed if it is based on findings proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002); Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is defined as that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Johnson, 78 Ark. App. at 119, 82 S.W.3d at 187. In resolving the clearly-erroneous questions, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Additionally, in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. Id.

Odoemenam's parental rights were terminated pursuant to Ark. Code Ann. § 9-27-341 (b)(3), which states that an order terminating parental rights shall be based upon a finding by clear and convincing evidence that is in the best interest of the juvenile, including consideration of the likelihood of adoption and the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent. The order terminating parental rights also must be based on a showing of clear and convincing evidence as to one or more of the nine grounds for termination listed in section 9-27-341(b)(3)(B). The trial court's order included two of these nine grounds in support of the termination of Odoemenam's parental rights.

Odoemenam contends that there was insufficient evidence to terminate her parental rights. Termination of parental rights is a two-step process, requiring the trial court to find that the parent is unfit and that the termination of the parental rights is in the best interest of the child. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). However, the trial court is not required to use the word "unfit," and the trial court's finding that the appellant is unable to be the type of parent that the child needs and is unable to learn to be that type of parent is a sufficient finding of appellant's unfitness. Id. In this case, however, the court specifically found that Odoemenam was "unfit." The court also found that Odoemenam subjected the child to aggravated circumstances, as defined in Ark. Code Ann. § 9-27-303, based on the dangerous and disgusting environment in which the child wasforced to live. Once the court finds aggravating circumstances present, no reunification is required. Id.

The court's findings were based on the following evidence that was presented at trial in support of the termination petition. First, after DHS was contacted regarding the child's poor hygiene, and the child was removed from the home, case workers made numerous unsuccessful attempts to conduct unannounced inspections of the child's home. On several occasions Odoemenam refused to allow the caseworkers to enter. Odoemenam admitted that her avoidance was based on her belief that the caseworkers were meddling. After the caseworkers were eventually admitted to the home, they observed an environment unsafe for human habitation. The home was littered with rat feces, and rats were observed living in piles of clothing scattered around the floor. The home had an unpleasant odor, described by caseworkers as that of rotting rat carcasses. In addition to the rats, the house was overrun by cockroaches. The home also had structural deficiencies, including a huge hole and exposed wiring in the kitchen ceiling. Moreover, evidence was introduced that Odoemenam was oblivious to these problems.

The child's hygiene, which was the original basis for DHS's intervention, further evidenced the neglect she suffered. The child was embarrassed to attend school due to her unkempt appearance. Indeed, she had missed approximately thirty-three days of school. School officials testified that when she did attend school, her clothes were so soiled that the school nurse was required to provide the child with clean clothes. School officials also testified that it was disruptive when the child would open her backpack because numerous roaches would scamper throughout the classroom. The child also had impetigo, a skin condition that is commonly caused by poor hygiene. The child's dental hygiene was equally dismal. After being placed in foster care, $3628 worth of dental work was performed in the child's mouth. Each tooth had some type of deterioration.

The testimony presented by the child's foster parent was particularly disturbing. At the time the child was placed into foster care, she was incapable of taking a bath, brushing her teeth, folding clothes, ironing, or washing dishes. The child was scarred on her legs and feet from the knees down and manifested a fear of bedtime and darkness because at night rats would often eat on her feet.

Finally, the psychologist who examined the child and her mother concluded that considering "the needs of this child, who has a 46 IQ, I think the mother is not capable of meeting her special needs. [The child] cannot thrive with this mother because of [Odoemenam's]-not really through any fault of her own, but because of her defects."

Under the circumstances of this case, we are satisfied that the evidence presented was sufficient to establish that Odoemenam was unfit and that it was indeed in the child's best interest to terminate Odoemenam's parental rights. The court correctly considered the likelihood that the child will be adopted and the potential harm caused by continued contact with Odoemenam. The court also properly concluded that aggravating circumstances existed. Therefore we affirm the trial court's order terminating parental rights and granting DHS the power to consent to adoption.

Affirmed.

Pittman and Hart, JJ., agree