Jennifer Eakens v. Arkansas Department of Human Services

ca04-876

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JENNIFER EAKENS

APPELLANT

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-876

SEPTEMBER 14, 2005

APPEAL FROM FAULKNER COUNTY CIRCUIT COURT

[NO. JV-2003-147]

HONORABLE LINDA P. COLLIER, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Jennifer Eakens brings this appeal from an order terminating her parental rights to her children, M.E.(1), age six, and M.E.(2), age four. We affirm.

Jennifer and Samuel Eakens are the biological parents of M.E.(1) and M.E.(2). When Arkansas Department of Human Services (ADHS) filed the petition for dependency-neglect in February 2003, Jennifer and Samuel were separated, and Samuel had visitation every other weekend with the children. On February 7, 2003, Samuel picked up the children for his visitation and noticed numerous bruises on nineteen-month-old M.E.(2) and a rash on four-year-old M.E.(1)'s head and face. Samuel took the children to the emergency room. A hospital employee documented bruiseson M.E.(2)'s face, head, body, and feet, as well as scratches and a knot on the right side of her head and teeth marks on her abdomen. The hospital employee also documented a rash on M.E.(1)'s face, behind his ears, forehead, neck, and around his eyes and fading bruises on his arm, thigh, and both cheeks of his buttocks. M.E.(1) told the hospital employee, "Billy paddles him." Jennifer's boyfriend at the time of this incident was named Billy Kirker. The hospital released the children to Samuel. Jennifer told an ADHS caseworker that M.E.(2) had climbed on a bedside table and pulled it on top of her. Jennifer denied that she or Billy had abused the children and denied the fact that the children had been abused at all. An investigation, however, determined that M.E.(2)'s injuries were not consistent with Jennifer's story.

At the March 11, 2003 probable cause hearing, the trial court allowed the children to remain in Samuel's custody and ordered supervised visitation for Jennifer. At the April 1, 2003 adjudication hearing, the court made a finding of dependency-neglect. The children remained in the custody of Samuel with Jennifer having visitation every other weekend. On May 20, 2003, ADHS filed a case plan. On July 1, 2003, the court ordered that Jennifer have no male visitors in her home while she had visitation with the children.

On July 29, 2003, there was an emergency review hearing because Samuel lost his residence and had nowhere for his children to live. ADHS arranged for Jennifer to have extended visitation with the children, and subsequently the trial court ordered the children to be returned to Jennifer's custody with Samuel having visitation every other weekend at his mother's house.

Before the next review hearing set for October 7, 2003, ADHS removed the children from Jennifer's custody and placed them back into ADHS custody. A probable cause hearing was held on August 26, 2003, and the court found probable cause that based on the testimony of the ADHS primary caseworker that Billy Kirker was around the children, which was a violation of previous court orders. The trial court placed the children in the custody of the paternal grandparents in Conway with Jennifer having supervised visitation. Jennifer was driving from her residence in Batesville to Conway for visitation. At this hearing, the trial court ordered Jennifer to attend individual counseling.

ADHS filed a petition for termination of parental rights on November 3, 2003. There were three termination hearings on three different days in March and April 2004. Roberta Long, an ADHS family service worker from Independence County, testified at this hearing. Jennifer told Long that a small bedside table had tipped over and hit M.E.(2)'s head and that was why M.E.(2) was bruised. M.E.(1) has accused Kirker of causing his injuries at the time and M.E.(2) was too young to talk. Long testified that the investigation determined that the injuries on the child were not consistent with Jennifer's explanation. Jennifer told Long that she did not cause the injuries to the children. Long testified that Kirker was living with Jennifer in March 2003. During the summer of 2003, Long found no evidence that Kirker was living with Jennifer, but Jennifer told Long that he was in the home sometimes. On November 12, 2003, Jennifer told Long that the house she was living in at Batesville was in Billy's name but that she paid the rent and all the bills. Kirker was in the house during a home visit in December 2003, but Jennifer was not there at the time. Jennifer told Long that she and Billy were going to get married. When Long made contact with Jennifer on January 12, 2004, Kirker was in the home. Jennifer told Long that she and Billy had a fight on April 1, 2003, at Jennifer's place of employment because Jennifer found out Billy was using drugs. Jennifer was fired from work because of this fight.

Long testified that she offered the following services to Jennifer: a referral for counseling, parenting classes, child welfare services, domestic violence, a referral to HUD, and a referral to a women's shelter. Child welfare services consist of case management, referrals, and home visits. Long testified that ADHS offers other services but that Jennifer did not need these services, such as clothing, cleaning supplies, or nutritional services. The court had ordered Jennifer to obtain individual counseling, but Jennifer told Long that she could not afford counseling. Long told Jennifer that the fee was based on a sliding scale, but Jennifer maintained that she still could not afford it.

Jennifer testified at the termination hearing. She testified that Kirker blocked her in her own driveway with his car the past weekend and threatened to make her life miserable. She called the police four times. Jennifer claimed that she was not presently living with Kirker, and she told the trial court that she believed she was a victim of spousal-abuse syndrome or battered women's syndrome. She stated that she still needed counseling and asked the trial court for comprehensive services. Jennifer stated that she maintained a relationship with Kirker because she did not realize what was happening until the very end. She admitted that she knew she was supposed to attend counseling but said that she could not afford it. She testified that she did not need family violence prevention services, because all they did was help women get restraining orders or make referrals to a women's shelter. Jennifer completed all of the parenting classes that had been offered based on the age of her children.

Samuel Eakens testified at the termination hearing that Jennifer assaulted him three years ago, and the police became involved in the incident. He also told the trial court that M.E.(1) told him that Billy caused his injuries. There was also testimony taken at the termination hearing from Kathy Burger, another ADHS caseworker; Yvonne Thorn, Jennifer's neighbor; and Carol Burnett, Jennifer's mother.

The trial court terminated Jennifer's parental rights based on a finding of clear and convincing evidence that, although ADHS provided services to Jennifer, she failed to remedy the reasons for her children's removal from her custody, and the children had been out of her custody for at least twelve months. Jennifer appeals the termination order on the basis that the trial court erred when it terminated her parental rights, and she argues that ADHS did not provide her with meaningful services.

ADHS argues that Jennifer failed to preserve the argument that ADHS did not provide meaningful services for reunification. The trial court specifically found that ADHS had provided reasonable family reunification services in the probable cause order; the adjudication order; the July 1, 2003, review order; the July 29, 2003, review order; and the August 26, 2003, review order. Jennifer never challenged these findings. Instead, she now challenges the trial court's finding in the May 4, 2004, order that ADHS provided meaningful reunification services. In Moore v. Dep't of Human Servs., 69 Ark. App. 1, 9 S.W.3d 531 (2000), this Court held:

Although appellant now asserts that the court erred by finding that ADHS made reasonable efforts to prevent the initial removal of the children in 1995, she failed to timely appeal from that order. Further, while appellant asserts that court erred by finding at the disposition hearing held on September 25, 1997, that ADHS made reasonable efforts to provide reunification services to the family, she also failed to appeal from that order. Appellant's failure to appeal from these final and appealable orders deprives this court of jurisdiction to address her first two issues of appeal ....

In other words, after a trial court has made a finding that ADHS has provided a parent with reasonable reunification services, if the parent does not timely appeal the trial court's findings, those findings cannot be challenged later. Id. ADHS argues that Jennifer has waited too long to challenge the trial court's findings of meaningful services except for the time period between the August 26,2003, order and the May 4, 2004, termination hearing. We agree. Even if Eakens's argument were preserved for appeal for the entire time period beginning with the July 1, 2003, review order, it is clear that ADHS did provide her with meaningful reunification services.

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.

Johnson v. Dep't of Human Servs., 78 Ark. App. 112, 119, 82 S.W.3d 183, 187 (2002) (internal citations omitted). 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.

Jennifer's sole point on appeal is that the trial court erred by terminating her parental rights because ADHS did not provide her with meaningful reunification services. Roberta Long, the ADHS secondary caseworker, testified that she offered to Jennifer the following services: parenting classes, psychological examinations, visitation, home visits, family violence prevention services, a women's shelter referral, and a counseling referral. The trial court specifically found that ADHS did provide these services to Jennifer, and ADHS's efforts were documented in the case report that was filed for the hearing and made part of the record. Jennifer does not refute that these services were offered to her, but she argues that these services were not meaningful reunification services.

Jennifer admitted that the parenting classes were helpful and that she had completed all of the classes at this point in time that were offered. The trial court ordered counseling for Jennifer, and Long referred Jennifer to North Arkansas Human Services for counseling and told her that she would have to pay for the counseling according to a sliding scale. Jennifer argues that the counseling service was meaningless because she could not afford it. Jennifer, however, did not offer an explanation as to why she could not afford it except that she did not have the money after paying rent and a car payment. Jennifer never took advantage of the counseling service.

Long testified that the family violence prevention services offered a place for women to stay when they needed to be protected from family violence and helped women obtain restraining orders. Jennifer argues that the family violence prevention services, namely the referral to a women's shelter, were not meaningful because she did not need a restraining order or a place to stay. Jennifer admitted, however, at the termination hearing that she just recently began to understand that Kirker abused her while they were together.

Long admitted that she never offered transportation services to Jennifer so that she could see her children in Conway because Independence County did not have the funds or the time for this service. The record is unclear as to whether or not Jennifer ever asked Long for transportation services.

Jennifer argues that her parental rights should not be terminated because ADHS only offered her one meaningful service, parenting classes, which she completed. This argument is misplaced, because ADHS actually offered more than one service to Jennifer. In Ullom v. Department of Human Services., 340 Ark. 615, 12 S.W.3d 204 (2000), the court held that ADHS pursued meaningful efforts to rehabilitate the home when it offered counseling, visitation, and parenting classes to the parents, and the parents chose to ignore or failed to benefit from the services. Here, ADHS offered these same services and more to Jennifer, but Jennifer either chose to ignore the services or failed to benefit from them, and she did not remedy the reasons for removal in that she continued to maintain a relationship with a man who she testified used drugs, abused her, and had been accused of abusing her children.

Affirmed.

Bird and Baker, JJ., agree.