Bobbie Fitzjurls, now Barnes v. Arkansas Department of Human Services

ca04-740

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-740

February 23, 2005

BOBBIE FITZJURLS, now BARNES APPEAL FROM LOGAN COUNTY

APPELLANT CIRCUIT COURT NO. J-2000-31

V.

HONORABLE TERRY SULLIVAN

ARKANSAS DEPARTMENT CIRCUIT JUDGE

OF HUMAN SERVICES

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

Bobbie Fitzjurls Barnes appeals from an order terminating her parental rights to three of her minor children. For reversal, Barnes challenges the admission of hearsay testimony during the termination hearing. Barnes also argues that the trial court's finding that she had failed to remedy the conditions that caused removal of her children is clearly erroneous. Additionally, Barnes challenges the sufficiency of the evidence supporting the petition to terminate her parental rights and argues that the trial court's decision to terminate her rights is clearly erroneous. We find no merit to these arguments and affirm.

The Department of Human Services had been extensively involved with the Fitzjurls-Barnes family for several years. The facts relevant to the instant appeal are as follows. Barnes is the mother of seven children. DHS became involved with Barnes and her children in October 2000 when it filed a petition for emergency custody due to environmental neglect and physical abuse. The Barnes home was roach infested and the Barnes children were excessively absent from school due to problems with head lice. Barnes's then-boyfriend, Steve Parsons, had shot her son with a BB gun. At the probable cause hearing, the trial court found that DHS had probable cause to remove the children, but that the problems had been remedied. The children were then returned to their mother's custody. DHS was ordered to maintain a protective services case on the family and initiate a case plan. Barnes was ordered to comply with the case plan, to maintain a clean home environment, and to ensure that the children were kept clean and free of head lice and sent to school clean and without head lice.

At the following reviewing hearing, the trial court found that the Barnes children were dependent-neglected, but ordered that they remain in Barnes's custody. Although Barnes had received a case plan, she had only partially complied with it. The trial court ordered Barnes to work toward compliance with the case plan. On June 6, 2001, DHS moved to close its case against Barnes, but that motion was objected to by the guardian ad litem, who argued that the Barnes children had developmental needs that would best be served by continuing the case plan. At that time, Barnes had appropriate housing, was receiving food stamps, had placed the children in Headstart programs, and was working toward obtaining counseling for her oldest child. The court acknowledged Barnes's improvements, but ordered DHS to continue to provide her services.

In the following review hearings, it was established that Barnes had moved residences several times and was struggling to maintain stable employment. During the pendency of the case, Barnes had switched jobs at least four times, and at other times remained unemployed. Although Barnes was married to Jimmy Fitzjurls, she maintained relationships with several men and co-habited with at least two of them. There were also allegations of physical abuse against T.B., Barnes' oldest daughter, which T.B. admitted, but later recanted. The trial court found that DHS had made reasonable efforts, but that Barnes had failed to adequately comply with its directives. Accordingly, the trial court placed five of the Barnes children in DHS custody; the remaining two children were placed in the custody of their biological father, who had intervened in the case. Barnes was granted visitation with all seven of the children.

At the September 3, 2003 permanency planning hearing, DHS put on testimony from Dr. Ennis that C.F. was treated from a rash in her perennial area and appeared to have a non-intact hymen, which was unusual for a three-year-old child. The other two Fitzjurls girls were also examined by Dr. Karen Young, and it was discovered that one of them had a thinning hymen, which may be indicative of abuse. Dr. Young also relayed that C.F. disclosed that Barnes had "spanked her with two fingers on her private"; that she was made to touch Barnes's breasts; and that she had touched Barnes's "private."

Jennifer Haney, the girls' foster mother, testified that she too suspected that the children had been sexually molested. She stated that C.F. had stated that Barnes had touched her private parts. The following colloquy occurred.

Ms. Yearby: I am going to object

Mr. Rogers: Rule 804, Hearsay exception's B(6), child hearsay in civil cases in which the Confrontational Clause of the Sixth Amendment of the Constitution is not applicable. A statement made by a child under the age of ten concerning any type of sexual offense or attempted sexual offenses with, on, or against the child.

The Court: Provided you give her notice

Mr. Rogers: Which I did give in May, and providing you make a finding after some preliminary questions, that it is of such reliability that you could allow it.

Thereafter the trial judge examined Haney about the alleged sexual abuse. Haney told the trial court that C.F. was four years of age; that she had been her foster mom for approximately one year; that normally the children are not honest; but that their sexually inappropriate behavior supports the credibility of the comments C.F. had made. When asked by the trial court about the reliability of the statements, Haney described, in precise detail, instances in which the two younger girls displayed extremely inappropriate sexual behavior. During these episodes, the girls would comment, "Well that's what Herman [Barnes's boyfriend] does to mom." Following these examples, the trial court overruled the hearsay objection and permitted further testimony, and Haney continued in her detailed description of conduct that led her to believe that the Fitzjurls girls were being sexually molested. On one occasion, when Haney asked why C.F. was behaving in that manner, C.F. stated, "I'm playing momma and kids." Haney admitted that one of the girls initially denied that Barnes had done things to them, but eventually indicated that C.F.'s statements were true regarding their observation of Barnes and Herman's sexual conduct.

Deanna Rachel, a civilian investigator with the Arkansas State Police Department, testified regarding her investigation of the allegations of sexual abuse toward C.F. She stated that C.F. admitted that Barnes had touched her, but that her sister had denied the allegation. Rachel admitted that due to C.F.'s young age, she had used some leading questions and that, at times, C.F. was unresponsive. Rachel testified that, when faced with the allegations, Barnes made the unusual comment that if she were going to molest any of her children, it would be C.F.'s sister because that child spends the most time with her. Although Barnes denied the allegations, Rachel found that the allegations were true, and that determination was upheld after an administrative appeal, which considered the allegations, Barnes's statements, and the information from doctors at UAMS and the Arkansas Children's Hospital.

In addition to the testimony alleging sexual abuse, there was evidence that Barnes was unresponsive to therapy; that she blamed DHS for her problems; and that she was unwilling to accept responsibility for her actions. Counseling sessions were terminated after six months when the therapists concluded that Barnes was not making any progress. Barnes refused to provide up-to-date residence information, and DHS was unable to conduct home visits because it was unaware of Barnes's address. Barnes had also overdosed, according to her, on prescription medication, which required her to stay in the hospital. The medical report revealed that her system contained methamphetamines. Barnes was also convicted of breaking-and-entering, after she broke into a neighbor's home and stole clothes and jewelry. During the commission of this offense, Barnes instructed B.B, her oldest child, to serve as a "look out." She was placed on probation for the commission of that offense.

On the positive side, Barnes had completed parenting classes and obtained a certificate from Comprehensive Juvenile Services. After completing parenting courses, the instructor indicated that Barnes had the appropriate skills to be a fit parent. She also attended all visitations with her children. Barnes also completed a psychiatric exam, which revealed that she was capable of caring for her children. Notwithstanding, DHS was granted permission to file a petition to terminate parental rights, and reunification services were discontinued.

Much of the same information was presented at the hearing on DHS's petition to terminate Barnes's parental rights held on December 3, 2003. There was more testimony regarding the sexual abuse allegations and evidence indicating that the three Fitzjurls girls had been exposed to inappropriate sexual situations. The trial court found that the three Fitzjurls girls were adoptable; that the children had remained out of the home for more than twelve months and the conditions causing removal had not been remedied; that Barnes had failed to provide significant material support; and that throughout the case, DHS had made reasonable efforts to reunite the Barnes family. Accordingly, the trial court terminated Barnes's parental rights. It is from this decision that Barnes appeals.

For her first point on appeal, Barnes argues that the trial court abused its discretion when it admitted into evidence hearsay testimony, which should have not been permitted as an exception to the hearsay rule and otherwise lacked any reasonable guarantee of trustworthiness. Our standard of review on questions of admissibility of evidence is the abuse of discretion standard. See Anderson v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 29, 2004). A trial court's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). Generally, hearsay testimony is inadmissible. Ark. R. Evid. 802 (2004). There are exceptions. Ark. R. Evid. 803 (2004). The exception relevant to this case is found in Ark. R. Evid. 804(b)(6), which provides for the admission of statements made by a child under the age of ten (10) years concerning any type of sexual offense, or attempted sexual offense, with, on, or against the child, provided that the trial court conducts a hearing outside the presence of the jury and finds that the statement offered possesses a reasonable guarantee of trustworthiness. The trial court may employ any factor it deems appropriate including, but not limited to those listed in Rule 804(b)(6), in deciding whether the statement is sufficiently trustworthy.

Barnes concedes that the trial court appropriately conducted an inquiry into whether DHS had given her reasonable notice of its intention to offer the hearsay statements, but argues that the trial court failed to conduct a separate hearing on the admissibility of the statements and did not cite any of the factors listed in Rule 804 in its decision to allow the statements into evidence. Error cannot be predicated upon a ruling admitting evidence unless a timely objection is made stating the specific ground of objection if the ground is not apparent from the context. Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979); Ark. R. Evid. 103 (2004). At the September 3, 2003 hearing, Barnes raised a general objection to Jennifer Haney's testimony regarding her suspicion that the Fitzjurls girls were being sexually molested and her testimony regarding statements that C.F. had made to her. Thus, the specific ground upon which Barnes alleges error was not raised to the trial court, and we cannot now consider it on appeal.

Barnes also challenges the admission of Deanna Rachel's testimony regarding the allegations of sexual abuse for the reasons stated above. Barnes did not raise an objection to Rachel's testimony. We cannot consider her arguments regarding the admissibility of Rachel's testimony for that reason. Ayers v. State, 354 Ark. 258, 975 S.W.2d 88 (1988). Moreover, it would seem then that any error in admitting Haney's testimony would be harmless considering the fact that Rachel was permitted to testify about the sexual abuse allegations without objection.

For her second point on appeal, Barnes argues that the trial court's finding that she did not remedy the conditions that caused removal was clearly erroneous and contrary to the evidence presented. This court reviews termination of parental rights cases de novo. Dinkins v. Arkansas Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). 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. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Kight v. Arkansas Dep't Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (June 30, 2004).

Regarding grounds for termination, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Supp. 2003) provides in relevant part:

(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.

(b) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(i) of this section immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months;

In this case, there is evidence that, initially, Barnes had made considerable improvements and was working toward compliance with the case plan. This is evident from the fact that early in the case DHS sought to close the case. However, at subsequent review hearings the evidence shows that Barnes was either unwilling or unable to comply with the case plan. She moved several times, and therefore, did not provide safe and stable housing for her children. She lived with her mother, a pregnant friend in Dublin, Herman Cunningham, Steve Parsons, and in homes in Subiaco and Fort Smith. Barnes also failed to maintain steady employment, switching jobs at least three times throughout the history of the case, and was frequently unemployed. Barnes was also uncooperative in her counseling sessions, and, as a result, the sessions were cancelled. The trial court's decision is not clearly erroneous.

Third, Barnes argues that DHS did not present sufficient evidence to support its petition to terminate her parental rights based upon the clear and convincing standard. Our standard of review was set out above and provides that this court will affirm a trial court's decision in a termination of parental rights case unless that decision is clearly erroneous. Kight, supra. It is not. Aside from the extensive evidence supporting the trial court's finding that Barnes failed to remedy the conditions causing removal of her children even though they had been out of the home for more than twelve months, there is additional evidence that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the Fitzjurls girls to Barnes's custody is contrary to their health, safety, or welfare and that, despite the offer of appropriate family services, Barnes has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent return of her children to her custody. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Barnes had not demonstrated that she was willing to be a fit parent. She took her son, B.B., with her as a "look out" while she broke into a neighbor's home and stole property from it. Barnes also overdosed on drugs and was found to have methamphetamines in her system. Additionally, Barnes subjected her children to aggravating circumstances.

"Aggravated circumstances" means:

(A) A child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, or sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification;

Ark. Code Ann. § 9-27-303(6) (Rep. 1997). There was extensive evidence, which we need not rehash, demonstrating that Barnes had, herself, sexually molested her children or sexually abused them by subjecting them to sexually inappropriate situations. The trial court's decision is supported by a preponderance of the evidence.

Finally, Barnes argues that the evidence insufficiently showed that the Fitzjurls girls would likely be adopted and that termination was in their best interest. The trial court clearly considered the likelihood that the Fitzjurls children would be adopted. In fact, the trial court's order terminating Barnes's rights to C.F., C.F., and S.F., denies termination of Barnes's rights to her two older children because the trial court found that they were not likely to be adopted. There was evidence that the three girls were young, in good physical health, and adoptable. Haney, the girls' foster mother, also expressed interest in adopting the children. Moreover, it was in the children's best interests that Barnes's parental rights be terminated. Based on the considerable evidence regarding sexual abuse and sexual molestation, among other things, there was a risk of harm if contact between Barnes and her children was continued. Accordingly, we affirm.

Affirmed.

Robbins and Griffen, JJ., agree.