Patricia Butler v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

PATRICIA BUTLER

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-513

November 17, 2004

APPEAL FROM THE JUVENILE DIVISION OF POLK COUNTY CIRCUIT COURT

[NO. JV-2002-436-6]

HON. J. W. LOONEY,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Patricia Butler appeals from an order of the Polk County Circuit Court terminating her parental rights in her daughter T.B. On appeal, Butler argues that the trial court erred in finding that there was sufficient evidence to terminate her parental rights. We affirm.

On October 8, 2001, T.B., then age eight, and her twelve-year-old sister C.L., were taken into custody by the Arkansas Department of Human Services, hereinafter "DHS." Earlier that day, Butler and her live-in boyfriend, James Armstrong, had been arrested after the children reported to Polk County deputies that they had been sexually abused by Armstrong and that they had told their mother and she failed to protect them. On January 15, 2002, an order was entered adjudicating T.B. and C.L. as dependent/neglected. A case plan was established that required Butler to perform six tasks: 1) protect the children from sexual abuse and people and situations that might harm them; 2) submit to a psychological evaluation to determine her employability and her willingness to protect her children; 3) keep her home drug free; 4) have the family learn "appropriate roles" and "exhibit healthy boundaries of those roles"; 5) maintain stable employment so as to be able to provide food, shelter, clothing, and medical care for her family; and 6) cooperate with DHS including informing the department of any changes to her employment and "other changes in her situation."

At a May 5, 2003, permanency planning hearing, the goal was changed from reunification to relative placement of C.L. with the child's biological father and termination of parental rights as to T.B. Butler did not object to the placement of C.L., and it is not an issue before us on appeal. Butler did, however, object to the termination of her parental rights, and testimony was taken.

DHS caseworker Carolyn Strickland testified that Butler had failed to satisfy the case plan even though extra time was allotted. She noted that Butler did finally cease to have contact with James Armstrong, completed parenting classes, submitted to a psychological exam, and had for a time participated in family counseling. However, Strickland noted that Butler had stopped attending counseling; had failed to keep her home drug and alcohol free; failed to learn appropriate roles for the family and exhibit healthy boundaries; failed to keep stable employment and develop the ability to provide housing, food, clothing and satisfy the medical needs of her family; and failed to keep DHS informed of the changes in her living situation. Strickland also revealed that, although Butler eventually did sever contact with Armstrong, she did not do so immediately and during supervised visits, while the children were in foster care, she actually told the children that Armstrong "missed them."

Family counselor Gayla Clayborn confirmed that Butler had stopped attending counseling, even though there was a lot of work that needed to be done to resolve the longstanding anger and resentment that existed between Butler and her children. She also confirmed that Butler had failed to live up to the commitment that she made to C.L. to keep the home free of men and boyfriends, noting that C.L. could not enter the house for one of the visits because a man, who was not dressed, was present. Clayborn stated that she had not observed a willingness on the part of Butler to resolve the problems that prevented reunification.

The trial judge found that DHS had offered all the requisite services and assistance that was required, "perhaps even more than was required," and had developed an appropriate case plan, but Butler had significantly failed to comply with the components of the plan. He approved the goal of relative placement for C.L. and termination of parental rights as to T.B. The judge did, however, authorize reunification services to continue.

On July 2, 2003, DHS filed a petition for termination of Butler's parental rights. A final termination hearing was held on October 28, 2003. The court granted DHS's request that it take judicial notice of the earlier proceedings. Nonetheless, Carolyn Strickland again testified that Butler had failed to fully comply with the case plan. Strickland specifically noted that Butler failed to attend family and individual counseling and failed to show that the "healthy boundaries" that had been taught about in parenting classes actually existed. Strickland did acknowledge that a recent visit between Butler and T.B. went "fairly well" and that Butler had recently found a job. However, she noted that Butler had previously been employed at a nursing home and had lost that job. Strickland also noted that Butler had been "incarcerated several times" during the pendency of this case. She also noted that Butler had "lost" the residence that DHS had secured for her and that she had investigated Butler's most recent residence and found it unsuitable because of overcrowded conditions and the presence of "filth." She characterized Butler's efforts to regain her children as "moments ofcompliance" but found a failure by Butler to exert even minimal effort over the past year. According to Strickland, Butler "just quit." Strickland specifically rejected the idea that Butler's failure to comply with the case plan was attributable to her being poor.

Edith Wagner, who ran the woman's shelter where Butler resided for a time, testified that although they did not limit the amount of time that a woman could stay there, they asked Butler to leave because she refused to follow the rules or make a reasonable effort to become self-sufficient. Wagner also noted that Butler's visits with her children involved "loud verbal yelling and screaming matches," but conceded that T.B. "probably wasn't as disruptive as C.L. when interacting with her mother." Wagner stated that, although she usually found parents and children living in the house to be "supportive of each other," it was not the case where Butler and her children were concerned.

Marilyn Gigliotti, testifying on behalf of Butler, stated that although Butler was currently living with her, Butler had told her she would be moving out in about two weeks. She stated that Butler had found a three-bedroom, one-bath home, and they were helping with repairs. She also noted that Butler had secured employment at Tyson's and had kept her job for six weeks. She also stated that she observed Butler's interaction with her children and stated that it went "very well."

Butler conceded that she had "problems keeping a job," but ascribed her difficulties to her incarceration and "stress." She stated that she was currently making $7.65 per hour, but was due for a raise. She also thought she was "possibly" buying a car. She stated that individual counseling did not help her, but she saw some benefit to the counseling that was provided for her children. She, however, claimed that attending counseling had been difficult because she did not have a car. Butler asserted that she no longer had problems with the law, and although she had financial problems, she could see "light at the end of the tunnel."

On January 14, 2004, the trial court entered an order terminating Butler's parental rights. Among other findings, it found that Butler "failed, although able, to assume responsibility for the care and custody of the juvenile or to participate in a plan to assume such responsibility."

On appeal, Butler argues that the trial court erred in finding that there was sufficient evidence to terminate her parental rights. She contends that she "substantially complied" with the objectives set forth in her case plan, and "to the extent she failed to comply, a substantial factor in the lack of compliance was an inability to do so based on poverty." Butler concedes that she did not maintain stable housing and employment during the pendency of the case. However, she asserts that, at the time of the termination hearing, she was gainfully employed, situated in her own rented home, and ready to make a down payment on a vehicle. We find this argument unpersuasive.

The grounds for termination of parental rights must be proven by clear and convincing evidence. M.T. v. Arkansas Dep't of Human Servs., 58 Ark. App. 302, 305, 952 S.W.2d 177, 179 (1997). When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Dinkins v. Arkansas Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). This court reviews termination of parental rights cases de novo. Id.

Termination of parental rights cases are governed by Arkansas Code Annotated section 9-27-341 (Supp. 1993), which provides in pertinent part:

An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

(A) That it is in the best interest of the juvenile, including consideration of the following factors:

(i) The likelihood that the juvenile will be adopted if the termination petition is granted;

(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, putative parent or parents.

We reject Butler's assertion that she had substantially complied with the case plan. We believe that the instant case is analogous to our supreme court's recent decision in Trout v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Nov. 4, 2004), affirming a termination of parental rights where a parent's repeated failure to comply with the court's order demonstrated that the parent was either "incapable of correcting the problems or indifferent to the need to do so." Here, it is abundantly clear that Butler was given ample opportunity to comply with the case plan and she repeatedly failed to do so. By her own admission, her failure to attend counseling was based on her assessment that it was not helping her. Furthermore, her failure to maintain employment or stable housing were due to situations within her control. In particular, her residence at the woman's shelter was terminated because she failed to follow their rules despite having signed a contract to do so. She excused her lapses in employment by explaining that she was incarcerated on hot-check charges, but again, her loss of employment was due to her unwillingness to conform her behavior to requirements that we place on every citizen under the law. While it is true that she presented testimony that she had previously failed to comply with certain aspects of her case plan and she was now meeting or prepared to meet those requirements, we are unpersuaded by her eleventh-hour efforts. We are also unpersuaded that her failure to rectify the problems could be attributed to her poverty. It was not poverty that caused her to reject counseling or refuse to maintain contact and cooperation with DHS. Moreover, it was not poverty that caused her to continue to engage in inappropriate sexual relationships that jeopardized her children's safety.

Affirmed.

Vaught and Pittman, JJ., agree.