Ann Fisher v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

ANN FISHER

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-893

FEBRUARY 16, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. JN2004-298]

HONORABLE JOYCE WILLIAMS WARREN, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Ann Fisher, appeals from the termination of her parental rights by the Pulaski County Circuit Court upon petition by the Arkansas Department of Human Services (DHS). Appellant's sole argument on appeal is that there was insufficient evidence to support the trial court's termination of parental rights. We affirm.

On February 12, 2004, an ex parte order was issued by the court for removal of one-month-old T.B. from her mother's custody. The basis for the order included the following: T.B. tested positive for cocaine at her birth; there was an active protective services case open involving another child; and appellant had refused inpatient treatment provided by DHS at Arkansas Cares. A probable cause order was issued on February 19, 2004, wherein the court found probable cause that T.B. was dependent/neglected and that probable cause for the ex parte order for emergency custody continued to exist such that it was necessary for T.B. to remain in the custody of DHS until the adjudication hearing. Also in that order, the court made a finding that DHS had made reasonable efforts to provide services to the family, such as visitation, transportation, casework services, and medical services. The court found that no further reunification services would be offered due to appellant's two open dependency/neglect cases in which appellant chose not to avail herself of the services offered regarding her drug addiction.

At an adjudication and no-reunification hearing on March 19, 2004, appellant testified that she was currently in the Pulaski County jail following the revocation of her probation based on a charge of theft of property. Appellant further testified that in another protective services case on another child, she had refused to follow court orders, continued to use drugs, and refused to accept treatment for her drug addiction. She admitted to using drugs during her pregnancy with T.B. and admitted lying to the court in the previous probable cause hearing about the identity of T.B.'s father. Juanita Lloyd, the caseworker, testified that appellant was completely uncooperative in refusing treatment for her drug addiction. She testified that drug use was appellant's "biggest problem." She also stated that in her opinion, it would be in T.B.'s best interest not to provide further services to appellant because, based on past behavior, appellant was not likely to take advantage of any of the services offered to her. Stacia Burk, attorney ad litem, stated at the hearing that there were not any services that were likely to result in reunification.

On April 8, 2004, a permanency planning order was entered which found that it was in T.B.'s best interest that her permanency goal be adoption. At the hearing, Ms. Lloyd testified that appellant tested positive for cocaine that day, even though she was aware that a drug screen would be conducted before the hearing. Tracy Dickinson, the adoption worker for DHS, testified that she had already identified someone interested in adopting T.B. Appellant testified that "The only thing else I would like to say is that I want her to be adopted by a family member instead of strangers." At the conclusion of the hearing, the court made the following ruling:

The Court finds by clear and convincing evidence that it is in [T.B.'s] best interest to do so. Removal from the home was based on the fact that [T.B.] was born cocaine positive, mom had an active protective services case open, mom has been offered inpatient treatment at Arkansas CARES, random drug screens, and other services and mom refused to participate in these services. Mother has two open dependent/neglect cases before now on several of her children. During the time those two cases were open, the Court made certain orders for DHS to provide services for mom to remedy the circumstances which caused her children to be removed. The main issue was mom's drug addiction. Appropriate services were offered to mom to help her obtain and maintain a drug free life. The services were offered but mom chose not to avail herself of the services. The court further finds that continuing contact with mom on [T.B.'s] part would only harm her health and safety. [T.B.] needs a safe permanent loving home with parents who are responsible and appropriate and can provide her care and meet all of her needs. The Court finds DHS made reasonable efforts and at this point a family has been identified who is interested in adopting [T.B.] The parental bonds between [T.B.] and her mom and her putative father are hereby severed.

Thus, appellant's parental rights were terminated, and this appeal followed.

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. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wade v. Ark. Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence. Id. 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. Baker v. Ark. Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (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. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Beeson v. Ark. Dep't of Human Servs., 37 Ark. App. 12, 823 S.W.2d 912 (1992). 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. Baker, supra.

Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2003) 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:

(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:

. . . .

(3) Have subjected the child to aggravated circumstances.

Arkansas Code Annotated section 9-27-303(6)(A) (Supp. 2003) defines "aggravated circumstances" to mean: "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."

Appellant asserts that there was insufficient evidence to support the termination of her parental rights. We disagree. Here, the record reveals that appellant had two other protective services cases open involving her other children. In those cases, appellant was offered services by DHS for her drug addiction, including transportation and treatment. She had failed to take advantage of any of the services offered in those cases. T.B. was removed from appellant's custody due to appellant's drug use while she was pregnant with T.B., and T.B.'s positive test for cocaine at birth. It is undisputed that appellant, even up until the termination hearing, did not cease the use of cocaine. She tested positive just prior to the termination hearing, even though she knew a drug test would be administered that day. Despite efforts by DHS to provide appellant with services in previous cases, she repeatedly refused to accept those services and continued to use cocaine. Both the caseworker and the attorney ad litem recommended that no further services be provided to appellant because there was little likelihood that she would take advantage of any services offered.

After a thorough review of the record, we cannot say that the trial court's findings in this case are clearly erroneous. Accordingly, the trial court's order terminating appellant's parental rights to T.B. is affirmed.

Affirmed.

Bird and Crabtree, JJ., agree.