Betty Adams v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

BETTY ADAMS

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-689

February 2, 2005

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[NO. J-2001-103-3 (A)(B)

HON. JERRY E. MAZZANTI,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant is the mother of two girls. The eldest was born in 1997; the youngest was born in 2000. In September 2001, the Arkansas Department of Human Services took emergency custody of the girls because one of the girls was sexually abused by a man with whom appellant was living, and appellant refused to remove the girls from the abuser's household. Following an adjudication hearing on November 27, 2001, the children were also found to be dependent/neglected for environmental neglect because appellant did not have the gas and water utilities turned on at her residence. By May 2002, appellant was residing in her mother's home where all the utilities were connected, and the girls were returned to appellant's custody. The girls were removed from appellant's custody a second time in August 2002, because of allegations that appellant had left them with an inappropriate caretaker. After entertaining the petition for emergency custody filed by the Department on that occasion, the trial judge, on September 5, 2002, dismissed the petition for lack of evidence and ordered the girls returned to appellant. However, appellant, who was living in her boyfriend's home by this time, stated that she was not yet ready to have the girls returned to her because she needed to "get herself together," and asked that the girls remain in foster care. The Department therefore again placed the girls in emergency custody, and they remained in foster care until November 12, 2003, when a hearing was held that resulted in an order terminating appellant's parental rights. This appeal followed.

On appeal, appellant argues that the trial court clearly erred in terminating her parental rights. This argument is without merit, and we affirm.

Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents, and there is a heavy burden placed upon the party seeking to terminate parental rights. Trout v. Arkansas Department of Human Services, ___ Ark. ___, ___ S.W.3d ___ (November 4, 2004). Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Arkansas Department of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997). Parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. J.T. v. Arkansas Department of Human Services, 329 Ark. 243, 947 S.W.2d 761 (1997). The facts warranting termination of parental rights must be proven by clear and convincing evidence. Ullom v. Arkansas Department of Human Services, 340 Ark. 615, 12 S.W.3d 204 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. We will not reverse the trial court's finding of clear and convincing evidence warranting termination of parental rights unless that finding is clearly erroneous. Baker v. Arkansas Department of Human Services, 340 Ark. 42, 8 S.W.3d 499 (2000). On appellate review of orders terminating parental rights, we must give great deference to the trial court, which is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. Camarillo-Cox v. Arkansas Department of Human Services, ___ Ark. ___, ___ S.W.3d ___ (January 20, 2005); see Ullom v. Arkansas Department of Human Services, supra.

Arkansas Code Annotated § 9-27-341(b)(3) (Repl. 2002) states that an order terminating parental rights shall be based upon a finding by clear and convincing evidence that it 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 grounds for termination listed in section 9-27-341(b)(3)(B). In this case the trial court relied upon the following grounds:

(i)(a) That a 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.

. . .

(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile.

. . .

(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent return of the juvenile to the custody of the parent.

Here, the record reflects that the girls initially were removed because of sexual abuse, that environmental neglect was also a condition to be remedied, and that they remained out of appellant's home for a period totaling almost two years without that condition being remedied. The record clearly shows that appellant failed during this time to establish a suitable and stable home for the children. At the commencement of the case appellant and the children were living in the abuser's home. Appellant subsequently lived in her mother's home, in Little Rock for a time, and at the conclusion of the case was living with her unemployed boyfriend in Eudora in the home of her boyfriend's father. Appellant herself stated that her boyfriend's home was not a fit place for her children, and the Department was in agreement. Nevertheless, the record shows that appellant attempted to conceal the fact that she was living at her boyfriend's home, going so far as to perjure herself in an attempt to prevent the trial court from learning that this was her residence. Unquestionably, despite meaningful efforts by the Department to reunite the family, appellant has chosen not to establish a suitable and stable home for the girls.

Appellant argues that she lacks the financial means to obtain suitable accommodations and that she is, in essence, being punished for her poverty. We do not agree. The primary obstacle to reuniting this family was not so much appellant's lack of means as her lack of motivation. Appellant's general lack of effort to remedy the conditions causing removal is reflected in her failure to perform the relatively simple task of completing parenting classes. Furthermore, the evidence, found to be credible by the trial judge, demonstrates that appellant has made no serious attempt to obtain meaningful employment or otherwise secure the means with which to care for her children, despite the Department having provided transportation and assisted with job applications. There is no indication or assertion that appellant is disabled or otherwise impaired, and appellant admitted at the hearing that her failure to obtain a job so she could care for her children is her own fault. As was the case in Trout v. Arkansas Department of Human Services, supra, there is clear and convincing evidence that appellant has consistently failed to comply with the court's orders over the course of nearly two years, demonstrating that she was either incapable of correcting the problems or indifferent to the need to do so.

The rights of parents are not proprietary and are subject to their related duty to care for and protect the child and the law secures their preferential rights only so long as they discharge their obligations. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Kirk v. Jones, supra; State v. Grisby, supra. The unfitness for which this preferential right to custody may be forfeited can result from a parental failure to discharge any of the correlated duties of parenthood. In Grisby it was stated that this preference for natural parents is based on a presumption that they will take care of their children, bring them up properly and treat them with kindness and affection, and when that presumption has been dissipated chancery will interfere and place the child where those parental duties will be discharged by another.

Jones v. Jones, 13 Ark. App. 102, 108, 680 S.W.2d 118, 121 (1984). On this record, we cannot say that the trial court erred in finding that grounds for termination was proven by was clear and convincing evidence.

Appellant also argues that the trial court failed to make adequate findings to support its order terminating parental rights. We do not agree. Here, the trial court found that it was contrary to the children's best interests, health, safety, and welfare to return them to appellant's custody, and found by clear and convincing evidence that the children had been out of the home for more than one year; that appellant had failed to comply with the court's order to provide them with material support during that time; that appellant had failed to obtain employment and was unable to support the children; and that other factors had arisen since the children had come into the Department's custody that demonstrated that a return to appellant's custody would be contrary to the children's welfare. While it is true that the trial court is required to find that (1) the parent is unfit and (2) that termination of the parent's rights is in the best interest of the child, we think that those requirements were met by the order entered by the trial court in this case. See J.T. v. Arkansas Department of Human Services, supra.

Finally, appellant argues that the trial court erred in failing to consider the possibility of placing the children with appellant's parents in lieu of termination. Appellant cites no authority to show that such a consideration was necessary. We note, however, that the trial court's order shows that such placement was in fact considered and rejected by the trial court, and that this determination was supported by evidence of violent episodes and serious alcoholism in the grandparent's home.

Affirmed.

Glover and Baker, JJ., agree.