Stephanie Spivey and Larry Spivey v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

STEPHANIE SPIVEY AND LARRY SPIVEY

APPELLANTS

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA 04-489

March 23, 2005

APPEAL FROM THE CIRCUIT COURT OF INDEPENDENCE COUNTY

[NO. J 01-323]

HONORABLE STEPHEN CHOATE,

JUDGE

AFFIRMED

Terry Crabtree, Judge

Appellants, Stephanie and Larry Spivey, are the natural parents of five children: DS, KS1, SS, KS2, and TS, whose respective birth dates are May 31, 1986, July 28, 1988, January 11, 1991, November 6, 1992, and April 15, 1994. They appeal from an order terminating their parental rights. For reversal, appellants contend that the trial court's decision is not supported by the evidence. We disagree and affirm.

This action began as a family-in-need-of-services case. The children had been truant, they were dirty, and they exhibited behavioral problems at school. The case, however, was quickly converted into a dependency-neglect proceeding. At the adjudication hearing held on February 7, 2002, it was disclosed that appellants' rent-house was considered a hazard, and there was no running water or electricity. Both parents had tested positive for drugs. Samantha Edgin, a caseworker, testified that appellants were not cooperative at first, as they both had refused to undergo drug counseling. She testified that the children had been involved extensively with appellee's counterpart in Kansas since 1986, and that the children had previously been in foster care due to neglect. The trial court declared the children to be dependent neglected after this hearing.

At the review hearing held on April 23, 2002, Ms. Edgin testified that the conditions that had caused the children to be removed had not been remedied. She reported that appellants had attended five drug-counseling sessions but that they had missed two weeks of counseling. Some of their drug tests were negative, but at other times Stephanie had tested positive for amphetamines and THC, while Larry had tested positive once for amphetamines. They both remained unemployed. Appellants had attended most but not all of their visitation with the children. At the time the children were removed from appellant's custody there were numerous amounts of scrap metal in the yard, as well as a broken-down vehicle, a camper, and trash. Ms. Edgin said that the condition of the yard had become worse. The interior of the house had also not improved. She testified that appellants were not working on all of the things they were supposed to under the case plan and that they were not making progress. Ms. Edgin also told of a threat that Stephanie had made against the trial judge. Larry was also heard to threaten the principal, who had initiated the FINS petition, by saying that everything was the principal's fault and that he should or could have him "blown away."

At the September 25 review hearing, it was reported that appellants had made limited, recent progress but that not enough improvement had been made to be able to return the children to the home. Michael Fitch, another caseworker, said that improvement needed to be made on the rental home. It was seriously infested with roaches, and there was a mud-dobber nest in the bathroom. The plumbing fixtures in the bath tub had been removed, and the home was still without running water. Some of the windows had been boarded up with plywood, which was considered a safety hazard in case of fire. Appellants had also been served with an eviction notice. In lieu of paying rent, appellants had agreed to make repairs to the home, but they had not lived up to their bargain. Mr. Fitch spoke with the landlord and was able to obtain a sixty-day extension for them. He testified that there had been better cooperation with drug-treatment issues and that they had done a good job cleaning the debris out of the yard. His concern was that appellants had done nothing in the nine months that the case had been open except in the two weeks prior to the court date.

The case was again reviewed in October. No testimony was taken, but it was stated that appellants had begun to make progress.

A permanency planning hearing was held on December 17, 2002. Although the children had been out of the home for a year, appellee wished to continue the goal of reunification because of appellants' increased cooperation. It was impressed on appellants, however, that the situation could not continue if the children were not back at home by the fifteen-month permanency planning hearing. It was reported that appellants had finally gotten water in the home.

At the hearing on March 10, 2003, it was said that significant progress had been made such that it was recommended that the children return home for a trial-placement period. At the time, the home still did not have electrical service.

At the hearing in April, it was reported that two of the children had not returned to the home. The eldest, DS, had not wanted to go home and had since been placed at the Methodist Home. Another child, KS1, had wanted to stay in foster care to finish the school year. Concern was expressed about KS2's medication. Wanda Caldwell, case manager for the children, testified that she had observed KS2 at school one day and that he was "absolutely terrible in the classroom." He was disruptive, talking, clowning around, and refusing to do his work. She saw him the next day and said he was a different child. She believed the difference lay in his not having taken his medication properly the day he was disruptive. She learned that he takes four different medications and on that day he had taken only two pills, but of the same kind. There was another occasion when he was not given his medication properly.

Sherry Presley, a therapist, testified that she was helping appellants become stricter disciplinarians, which was difficult for them because they had been so lenient in the past and had allowed the children to make their own decisions. She testified as to KS2 and TS's behavioral problems. She said that appellants were trying to do better, but that the children would not behave or try to help appellants. In his remarks to the court, the children's ad litem felt that it was neglectful for KS2 not to be given his medication properly. He also said that the children were capable of minding because they had done so in foster care and that it was thus possible for them to behave.

At the hearing on June 25, 2003, it was disclosed that the children had been removed from the home. As of that time, two of the children had been home for a little over sixty days. KS1 had been home for a couple of weeks, while DS had never been returned home. The three children were removed because Larry had tested positive for marijuana and had lost his job. Stephanie had also remained unemployed. Brian Brokaw, the Children and Family Supervisor for Independence County, testified as to the wide array of services that had been provided to the family. He said that there had been no case where more of an effort had been made than to help this family. Brokaw testified that appellants had made small steps toward reunification and that he had thought "we were getting closer, and we're not." He said that Larry admitted that he had smoked a joint with his friend a few days after he was fired. He further testified appellants were being evicted from the rental house and that housing through HUD had been found for the family where they were to have moved the weekend the children were removed. He said that they remained eligible for HUD housing, but that either Larry or Stephanie needed to find work for such housing to remain available.

Andrea Boozer, a family-service worker, testified that Stephanie had said a couple of weeks ago that she was not willing to find a job in order to get the children back home. She said that just before the hearing, however, Stephanie had said that she would be willing to work. Ms. Boozer related that their income was spent on batteries, gas for lanterns, and dog and cat food. She also said that they buy paint balls for their recreation.

Sherry Presley testified that Larry had missed several counseling sessions. She felt that the family was progressing before the children were returned home and that things regressed when the children went home.

At the conclusion of this hearing, the trial court instructed appellee to proceed with termination. The termination hearing was held on September 10, 2003. Deana Bruce, a caseworker supervisor, testified that she observed the family's visitations and that something out of the ordinary occurred at a visit on August 8, 2003. Someone had told her that TS had been straddling Larry's lap and that Larry had an erection. When she went to check on the situation, she saw that Larry indeed had an erection, and she observed him stroke his genitals through his jeans. She also observed thatTS was laying in front of Larry, and she said that he pulled her shirt up, but that she pulled it back down. Then, he began to massage TS's breasts through her clothing, up and down and then in a circular motion. She also saw him pinch her nipples and rotate them between his thumb and finger. Wanda Caldwell made these same observations. She said that the child wore several pairs of shorts to visitations. She also observed the boys displaying inappropriate behavior that day as they were hitting each other between the legs. She also stated that the children did not talk to her about wanting to go home at this time.

Lisa Earls, a child-abuse investigator with the state police, investigated the incident of August 8. She testified that a "true" finding had been made for Larry having sexually abused TS and that his name would be placed on the central registry.

Andrea Boozer testified that they had helped appellants look for jobs; had referred them to HUD; had taken them grocery shopping; had taken them to Help and Hope; had taken them weekly to do laundry and provided soap when the children were home on the trial placement; had provided individual, family, and in-home counseling; had made NADC appointments and transported them there; had scheduled and transported them for random drug testing; had made a DDS referral; had paid for and taken appellants to have ID cards made so that they could find work; had delivered a refrigerator to the home; had helped them financially with groceries; had supervised visits; had transported Larry to and from work; had provided cleaning supplies; and had assisted in repairing a truck. Ms. Boozer said that appellants had complied with parts of the case plan but that they were currently not in compliance. They were unemployed, and there were no working utilities in the house. She said that the children could not return home now because of the true finding with regard to the sexual abuse investigation. She believed that, in word, appellants wanted the children to return home, but she that their actions did not show that. She was particularly critical of Stephanie's refusal to work anywhere other than a Motel 8. Aside from the sexual-abuse allegation, she felt that the children were harmed by the instability caused by going back and forth from the home to foster care. She also referred to Larry's continuing use of drugs and his problem of not maintaining steady employment. She noticed that they spent a lot of money unwisely on dog and cat food, and once she said that Larry spent twenty dollars on paint balls. She had tried to show them how to budget, but she said they were not open to that. She also recalled that she had tried to help Larry get his driver's license reinstated, but that they were not successful. She said that the children were calm and well adjusted in foster care, but that they were not when they were at home. All but TS had been placed on medication when they were at home, but she said that the level of medication had been reduced since returning to foster care. She had heard that appellants claimed that they were both employed, but that they had not been able to provide her with proof of employment. She added that it had been recommended that appellants attend NA and AA, but that they would not go because they did not feel they had a problem.

Stephanie testified that she had never seen Larry engage in inappropriate sexual behavior with any of the children. She admitted that she did refuse to seek employment, but she said that she currently had a job in construction, painting. She said that they had two working vehicles now but that neither she nor Larry had a driver's license. She said that she had stopped going to counseling when she realized that she was not going to get her children back. Stephanie testified that she had missed a chance to visit with TS and SS the previous Friday because she forgotten about it.

Larry testified that he was rubbing T.S.'s stomach, not her breasts, as a means of comforting her. He denied knowingly smoking marijuana, saying that he was helping a man repair a truck and that he had smoked a cigarette the man had rolled which apparently was laced with marijuana. He said that he had used marijuana off and on for a long time and that he had smoked marijuana after the children were taken because he was mad. He said that he had missed some counseling sessions. He said that he would stay away from drugs if there were a chance that the children could come home.

An order forever terminating parental rights must be based upon evidence that termination is in the best interests of the children, and the court must also find the existence of one of the grounds for termination set forth in Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2003). See Johnsonv. Ark. Dep't of Human Services, 78 Ark. App. 112, 82 S.W.3d 183 (2002). 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. Browning v. Ark. Dep't of Human Servs., ___ Ark. App. ___ S.W.3d ___ (April 7, 2004). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Jefferson v. Ark. Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (April 8, 2004). It is well-settled that grounds for termination of parental rights must be proven by clear and convincing evidence. Carroll v. Ark. Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (February 25, 2004). When the burden of proving a disputed fact at trial is by clear and convincing evidence, the question that must be answered on appeal is whether the court's finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Jefferson, supra. 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. Carroll, supra. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Browning, supra.

The goal of Arkansas Code Annotated section 9-27-341 (Supp. 2003) is to provide permanency in a minor child's life in circumstances in which returning the child to the family home is contrary to the minor's health, safety, or welfare, and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the minor child's perspective. The termination of appellants' rights was based on Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), which provides for termination based on a finding "[t]hat the 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. An additional ground was that the juveniles had lived outside of the home for twelve months, and the parents had willfully failed to provide significant material support in accordance with their means. Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a). The trial court also found that termination was appropriate because, subsequent to the filing of the original petition for dependency neglect, other factors or issues arose which demonstrated that the return of the juveniles to the family home was contrary to the juveniles' health safety, or welfare, and that despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate the parents' circumstances, which prevent the return of the juveniles to the family home. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).

In the case at bar, the children were out of the home for nine months before appellants began to make even limited progress toward complying with the case plan. Six months later, after the children had been in foster care for fifteen months, sufficient improvement had been made to return three of the children to the home for a trial placement, while the eldest child remained out of the home. Within two months, however, the trial placement failed when those children who had returned home were once again removed because Larry had lost his job due to drug usage. At the time of the termination hearing, appellants could present no proof that they were employed. They were also on the verge of being evicted from their rental home, which had no working utilities. In addition, there was cogent evidence that Larry had sexually abused TS. Because of this circumstance, it was not possible for the children to be returned home in the near future. From our review of the record, there was ample evidence supporting the trial court's decision that termination was in the best interests of the children on the ground that the children had been declared dependent neglected and had been out of the home for over one year, and that despite a meaningful effort by appellee to rehabilitate the home and correct the conditions which caused removal, those conditions had not been remedied by the appellants. We are unable to say that the trial court's decision is clearly erroneous. Since we are upholding termination on this ground, it is not necessary for us to discuss the other grounds for termination found by the trial court.

Affirmed.

Hart and Vaught, JJ., agree.