Jeffery Turner v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JEFFERY TURNER

APPELLANT

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-782

April 27, 2005

APPEAL FROM JOHNSON COUNTY CIRCUIT COURT

[NO. J-2002-21]

HONORABLE KENNETH COKER, JR., CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Jeffery Turner brings this appeal from an order terminating his parental rights to his children, H.T.(1), age six, and H.T.(2), age three. We affirm.

On February 11, 2002, Arkansas Department of Human Services (ADHS) filed a petition alleging that the children of Michelle Dawson and Jeffery Turner were dependent/neglected in that the children's health, safety, and physical well-being were at risk because their mother had been arrested for theft of property and because drug paraphernalia was found in the home. Jeffery was incarcerated at this time in the Washington County Jail for possession of drug charges. Because both parents were incarcerated, there was no caregiver for the children.

On March 19, 2002, the children were adjudicated dependent/neglected, and the court found that the children were in need of the services of ADHS and that it was in their best interests to remain in custody of ADHS. The court stated a case plan of reunification and authorized ADHS to return custody of the children to Michelle upon her entering an inpatient substance abuse program. The court ordered both parents to complete an inpatient substance abuse program. Michelle entered treatment on March 25, 2002, and while she was in treatment, she also completed parenting classes. She completed her treatment on June 21, 2002, and she was able to get a two-bedroom trailer.

Jeffery Turner was released from jail at the end of June 2002, and he moved in with Michelle. The court returned custody of the children to Michelle on July 8, 2002. Jeffery was still living in the trailer at this point. He entered a treatment program for substance abuse on July 17, 2002, and he completed the treatment on August 18, 2002. He began working at Kenner Boats at the beginning of September 2002. Michelle had not obtained employment at this time. On September 20, 2002, Jeffery tested positive for methamphetamine and marijuana, and he subsequently lost his job.

On October 1, 2002, the court ordered Jeffery to have only supervised visits with the children. Michelle informed the court that Jeffery had moved out of the trailer and that she had no knowledge of his whereabouts. Jeffery did not visit the children at all after he left the trailer in October. ADHS continued to provide services to Michelle, and she was not employed. ADHS paid $115.26 to keep her electricity service. In December 2002, however, her electricity and water were disconnected. On December 17, 2002, the court returned the children to foster care.

Jeffery and Michelle were both arrested on March 10, 2003, for theft of services and manufacture of a controlled substance. On July 31, 2003, Jeffery was sentenced to five years' imprisonment for his criminal offenses. Michelle failed to appear for her trial on the same date. A permanency planning hearing was held on August 19, 2003. At this hearing the court changed the goal of the case to termination of parental rights.

A termination of parental rights hearing was held on January 6, 2004. Jeffery testified that he was currently incarcerated at the Regional Punishment Facility in Texarkana. According to Jeffery's testimony, he had received his GED and was a certified tutor, and he tutored other inmates and was an instructor for the Substance Abuse Education Program in prison. He had been in jail for fifteen of the twenty-three months that this case had been pending. He testified that he had been clean and sober for nine months and was scheduled to be released on March 8, 2004. He made plans to live with his father upon his release and testified that he had a job in construction lined up for afterhis release. He opined that he would be able to provide a suitable environment for his children, but he could not do so right away, and he would need at least six or seven months after he got out of prison to prepare to receive his children. Jeffery candidly admitted that he was not sure that he would not have a drug problem in the future and that he did not know what would happen to his children if he began using drugs again.

Kristen Shelton, a caseworker for ADHS, testified that her office lost contact with Jeffery after October 1, 2002, and that Jeffery never contacted ADHS regarding visitation with his children until he was in prison. ADHS did referrals for substance abuse treatment for both Michelle and Jeffery. The family also received referrals for public housing, transportation, an in-home parenting aide, budgeting and employment assistance, and financial assistance. At the beginning of this case in 2002, the children were placed together in a foster home with ADHS. The children have been in four different foster homes. In August 2003, the children were moved into a foster adopt home. Shelton testified that it would be harmful to the children to return them to either parent's custody, especially because of the drug problems of both parents and lack of housing and support. The two children have been in ADHS custody for a total of seventeen months. H.T.(2) is only three years old and has been in foster care approximately half of her life. Shelton testified that she did not believe that there were any other services that ADHS could offer to help reunify the family other than what they have already been offered.

Mary Jo Jennen, the CASA volunteer assigned to the case, testified that it was her opinion that it would be in the children's best interests to terminate the parental rights of Michelle and Jeffery. At the end of the hearing, the court found that ADHS had shown by clear and convincing evidence that it was in the children's best interests that parental rights be terminated. The court found that both children had been adjudged dependent-neglected and had continued out of the home of the parents for at least twelve months, and despite a meaningful effort by ADHS to rehabilitate the home and correct the conditions that caused removal, those conditions had not been remedied by Michelle and Jeffery. The court also found that Michelle had abandoned the children, and despite the offer of appropriate family services by ADHS, Michelle and Jeffery manifested incapacity or indifference to remedy the issues or rehabilitate the circumstances that prevent the return of the children to them. In addition, the court found that the children were adoptable and the case plan should be changed to adoption. The order stated that the children could not be placed with their father for at least another eight to nine months and that this would not be a reasonable period of time viewed from the children's perspective. From the court's order terminating parental rights, Jeffery Turner brings this appeal. Michelle Dawson does not appeal the order.

Our standard of review in termination-of-parental rights cases is well-settled:

When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence, and in reviewing the trial court's evaluation of the evidence, we will not reverse unless the court's finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous questions, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations.

An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. In addition to determining the best interests of the child, the court must find clear and convincing evidence that the circumstances exist that, according to the statute, justify terminating parental rights. One such set of circumstances that may support the termination of parental rights is that the child has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. It is not necessary that the twelve-month period out of home be consecutive.

(Internal citations omitted.) Johnson v. Ark. Dep't of Human Servs., 78 Ark. App. 112, 119, 82 S.W.3d 183, 187 (2002). Arkansas Code Annotated section 9-27-341 (Supp. 2003) states:

(b)(1)(A) The circuit court may consider a petition to terminate parental rights if the court finds that there is an appropriate permanency placement plan for the juvenile. ....

(3) 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; and

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

(B) Of one (1) or more of 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.

....

(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.

Jeffery argues that the trial court erred in finding that there was sufficient evidence to terminate his parental rights because the positive steps taken by him warranted a denial of the petition to terminate parental rights. Jeffery cites Ark. Code Ann. § 9-27-338 (a)(4)(E)(i), which states that courts may continue a goal of reunification when "the parent is complying with the established case plan and orders of the court, making significant measurable progress towards achieving the goals established in the case plan, and diligently working towards reunification." Jeffery only began working toward reunification in the months prior to the termination hearing. There was a period of time from October 2002 to April or May 2003 in which Jeffery had no contact with ADHS and did not attempt to visit his children. A parent's resumption of contact or overtures toward participating in the case plan or following the orders of the court in the months or weeks immediately preceding the permanency hearing are insufficient grounds for retaining reunification as the goal at the permanency planning hearing. Ark. Code Ann. § 9-27-338(a)(4)(E)(iii). The permanency planning hearing in this case was held in August 2002, and Jeffery only began to show interest in the months prior to the termination hearing that was held in January 2003.

Moreover, it is clear that the trial court did not terminate Jeffery's rights because he was in jail. His parental rights were terminated because the statutory requirements for termination were met by clear and convincing evidence. The children had been adjudicated dependent-neglected, and the children had been out of the home for more than twelve months. It was Jeffery's own conduct that led to his arrest and incarceration during the pendency of this case and at a time when the children had already been removed from the home. See Malone v. Dep't of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000) (holding that, in termination hearing, the chancellor was allowed to consider the fact that appellant was arrested on numerous charges within a nineteen-month period while she was under court orders to maintain a stable home and avoid taking drugs). Before Jeffery was incarcerated beginning in March 2003 and during this time, it would have been possible for him to make an effort to communicate with his children possibly through letters or phone calls. See Jones v. Dep't of Human Servs, 70 Ark. App. 397, 19 S.W.3d 58 (2000). Jeffery did not do this.

Arkansas Code Annotated section 9-27-338 further requires that reunification occur within a time frame consistent with the children's developmental needs. Ark. Code Ann. § 9-27-338(a)(4)(E)(ii). Here, at the time of the hearing, Jeffery was incarcerated. The trial court found that the children could not be placed with their father for at least another eight to nine months at best, and this would not be a reasonable period of time viewed from the children's perspective. The children had been out of the home already for seventeen months, which is half of H.T.(2)'s life. The fact that Jeffery was incarcerated at the time of the termination hearing is not dispositive of the termination issue. Johnson, supra (citing Crawford v. Dep't of Human Servs., 330 Ark. 12, 951 S.W.2d 310 (1997)). Jeffery's imprisonment, however, does not toll a parent's responsibilities toward his children. Id. (citing Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976)). The trial court did not terminate Jeffery's rights because he was incarcerated. His parental rights were terminated because the statutory requirements for termination were met by clear and convincing evidence. While it is true that the trial court commended Jeffery's efforts to improve his own life after his incarceration, sufficient evidence existed for the trial court to find that it was in the best interests of the children to terminate his parental rights. The children had been out of the home for at least twelve months despite a meaningful effort by ADHS to help Jeffery correct the conditions that caused removal.

Affirmed.

Neal and Crabtree, JJ., agree.