Heather Sheridan v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

HEATHER SHERIDAN

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-959

September 7, 2005

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[JV-03-114]

HON. LINDA P. COLLIER, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

This case arises out of the court-ordered termination of appellant Heather Sheridan's parental rights. She argues on appeal that there was insufficient evidence for the trial court to terminate her rights to her three children. We disagree and affirm.

On January 26, 2003, the Child Abuse Hotline received a report against Heather for environmental neglect. Case workers visited the home and found Heather there with her three children, ages four, three, and one. Workers found food and trash piled on the kitchen floor, old food and garbage piled on the appliances and table in the kitchen, feces in the toilet that had not been flushed, puddles on the bathroom floor covered with toilet paper, hair dye in the sink and on the wall of the bathroom, and food crusted on the carpet of the living room. Medicine for the two older children was kept in a bassinet and was within reach of all the children. The oldest child's bed was unmade. The youngest child was crying in her crib until a friend of Heather's showed up, changed the child's diaper, and comforted her. The crib was full of blankets and toys. Most of the rooms were filled with blankets and clothes from thefloor up, and the hallway of the home was filled with large bags of clothes. Dirty clothes and underwear littered the floors. Cockroaches infested the home. The oldest child told one worker that "roaches crawl on my face and eyes." Heather blamed the mess on her children, saying they got into the refrigerator and garbage, dumping food and trash everywhere. She told workers that her husband had left her two months earlier, and she had her hands full. The children had head lice so severely that the lice had embedded themselves into the children's heads. Heather admitted her oldest daughter had been sent home from preschool due to head lice, but Heather denied that her children still had lice. The children were removed from the mother's custody.

On March 4, 2003, the court conducted a dependency-neglect hearing. At that time, Heather admitted that her home was not a suitable place for the children, but she argued that she had made great strides in remedying the environmental problems since the children had been removed. Tracy Darter, the case worker assigned to the case, agreed that Heather had cleaned up her home but was concerned about Heather's ability to maintain it. DHS presented the testimony of Jana O'Shea, a foster parent the children had stayed with after they were removed from Heather's custody. O'Shea testified that the children exhibited behavioral problems while staying with her. These problems included hoarding food, rude behavior, arguing and talking back, inappropriate sexual behavior, and some violent behavior. She stated that they did not know how to eat properly (use utensils) and that they would dump food (such as cereal) all over their beds. The court ordered parenting classes for Heather.

A hearing to determine child support was held on April 15, 2003, in which Heather stated that she was not working and had been evicted from her previous residence. She stated that she had moved to a new residence and was living with her boyfriend, Frankie Clay. He had recently been released from prison on parole and there was some concern that he had contracted Hepatitis C due to drug use prior to his incarceration. Heather stated that there were several people living in the home: herself, Clay, Clay's father, who was sick, and two other women. Heather's children had been placed in the custody of her father and stepmother, Teresa and Randy Long. The children's father, Eric Sheridan, was not present. Heather asked that the court leave the children in the Long's care for the time being because she was not working. Thereafter, the court assigned Heather to pay minimum child-support.

A review hearing was held on June 10, 2003, in which DHS requested the next hearing be for permanency planning. The children were still in the Long's custody, but Teresa Long's cousin, Pam Shelby, had been visiting the children and was interested in adopting them. Tracy Darter testified again and stated that Shelby and her husband wanted to go ahead and take pre-adoption custody of the children. Darter stated that Heather was trying to comply with the court's order to get a job but that she had quit or gotten fired from every job she had acquired. Heather told the court that she was still living with Clay but that they had recently moved and would be moving again soon to a larger place. Heather admitted that she was still legally married to Eric Sheridan. DHS argued that Heather had yet to maintain a steady job or place of residence and that they had little hope for reunification. Heather argued that it was too early to begin permanency planning, that she still had another six months to comply, and that she was continually trying to comply. Although Eric and Heather were separated at this point, Eric was present at the hearing and stated that he had no idea things had gotten so bad with Heather. He asserted that he wanted to get his kidsback but that he wanted to wait the full twelve months because he was having problems with steady employment and residency. Darter stated that the Arkansas State Police had investigated allegations that Eric sexually abused his oldest daughter and the allegations were found to be "true." The court granted the State's request for a hearing to determine whether reunification was still a possibility.

At the next review hearing on August 12, 2003, the court gave the custodial grandparents a chance to address the court. Teresa Long stated that the children were in a state of confusion because they had been told they could go live with the Shelbys but were still attending visitations with Heather. Long testified that she and her husband were unable to keep the children permanently because she was also caring for her daughter's children after her daughter had been hospitalized. The attorney for DHS and the attorney ad litem asserted that there was no way Heather would be able to comply within the twelve-month time period for reunification. They were also concerned regarding Heather's on-going relationship with Frankie Clay. Heather provided proof that she had applied for ten jobs within the last month, and she stated that she had lost her last job due to illness and provided medical reports showing she had been diagnosed with bronchitis and asthma. She also told the court that she had moved again. Darter testified that he had visited the new place, and it was clean. Heather again urged the court to allow her to continue trying to find steady employment so she could regain custody of her children. The court placed the children in the Shelby's custody, made a finding that successful reunification with the mother was highly unlikely, and set a permanency-planning hearing for within sixty days.

After the permanency-planning hearing, the court commenced termination proceedings on March 16, 2004. Dr. Rhonda Tannehill, a licensed psychologist, testified regarding her treatment of the two older children. She stated that the older child, a female,had exhibited some behaviors such as inappropriately touching herself that could be considered sexually acting out. The other child, a male, had shown fear and oppositional behaviors such a refusing to go to school and throwing tantrums. She also testified to the growing bond between Pam and the children. She stated that although the children had initially regularly behaved poorly, those behaviors now manifested mainly after visits with Heather. She stated that the children had become more calm and happy as therapy continued.

The termination hearing was continued until May 14, 2004. Heather Sheridan then testified that she had moved within the past month to a new residence in Dover, Arkansas. Before that, she had lived in Damascus, Arkansas, for five months. She stated that the reason for the move was that she needed to move to find work. She stated that she was still married to Eric Sheridan but that their divorce proceedings were ongoing. While married to Eric, and before moving to Arkansas, she stated that they had lived in Kansas. While in Kansas, they became involved with Kansas Child Welfare authorities regarding environmental endangerment of their children and because one of the children had to be hospitalized after having a seizure. The seizure was a result of water intoxification after the child had been given juice and water instead of formula. The children were temporarily removed from the home, but the children were eventually returned, and the case was closed. Heather asserted that in January 2003 when the children were removed from her home in Arkansas, her husband had left her for another woman, and she was depressed. She stated that she saw a therapist regarding her condition and, although she was no longer on medication for depression, she had been on Wellbutrin. She admitted her home at the time her children were removed was not an appropriate environment for them but stated that she was making changes in her life to get her children back. She testified that she was currently employed and had been for a couple of weeks. She also testified that she had split with Clay and that shenow realized that he was not a good influence for her children. On cross examination, she admitted that initially, she was in favor of the Shelbys retaining custody of her children. Because of her depression, she had thought she was not the best person to raise her children. She asserted that later statements she made in favor of the Shelbys taking custody of her children were because of pressure she felt from the Longs. She testified that she had changed her mind. She also stated that she was now in a serious relationship with Larry Maple, who has no criminal history and works as a deputy constable. She explained that she was living with Maple in a three-bedroom house and that they were currently working on securing a loan to buy a larger home. She also admitted that she had not paid child support while her children were out of her custody, but she stated that the reason for not doing so was her inconsistent employment. She stated that at the present time, her home was free of environmental hazards, and she had a job that would support her children.

Heather's father, Randy Long, testified that he was aware of the problems Heather had keeping her home clean. He stated that he and his wife had attempted to help Heather clean her house and get rid of the cockroaches but that Heather did not appear to him to want to do anything to remedy the problem. He stated that he wanted what was best for the children, and in his opinion, staying with Pam and Howard Shelby was in their best interest. In the past three or four years, he did not see any marked changes in Heather regarding her ability to parent the children or keep a stable home environment.

Pam Shelby also testified at the hearing and stated that she had put the two oldest children in counseling due to behavior issues and that they have improved tremendously. She stated that she had not received child support from either parent, nor had she received monetary support from DHS. She testified that she kept a clean, stable environment for thechildren; that she kept them on a routine regarding eating and sleeping; and that taking care of the children was not a burden on her family financially or emotionally.

Tracy Darter testified regarding the history of the case and her efforts to help Heather remedy the situation. Darter also informed the court that Heather had shown up for a visitation in April 2004 covered in bug bites, and when asked about them, she said it was from bed bugs. Darter asserted that Heather had neglected to check out jobs where Darter knew people were hiring. Additionally, Darter had gotten Heather a donated bicycle for transportation, but Heather had let Frankie Clay play with the bike, and he had broken it. Darter had visited Heather's residence in Damascus, and Darter felt it was unsuitable for small children due to unsanitary conditions. Darter admitted, however, that she had not visited the new residence in Dover. Darter stated that the children were totally different since living with the Shelbys-happy, behaved, and clean. Darter recommended termination of Heather's parental rights and adoption of the children by the Shelbys.

Larry Maple, Heather's current boyfriend, testified regarding his relationship with Heather. He stated that he and Heather were living together and that he intended to marry Heather. He stated that he would cooperate fully in whatever DHS required regarding Heather's children and that he would treat them as his own. He admitted he and Heather had only been dating a few weeks.

On appeal, Heather argues that the trial court erred in terminating her parental rights. 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. Bearden v. Ark. Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 208 (2000). The rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. J.T. v. Ark. Dep't of Human Servs., 329Ark. 243, 947 S.W.2d 761 (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. Id. at 248; 947 S.W.2d at 763. A trial court's order terminating parental rights must be based upon findings proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2003); Ullom v. Ark. Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Clear and convincing evidence is defined as that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Ullom, 340 Ark. at 621, 12 S.W.3d at 208.

On appeal, we will not reverse the trial court's ruling unless its findings are clearly erroneous. Id., 12 S.W.3d at 208. 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. Brewer v. Ark. Dep't of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). We defer to the trial court's evaluation of the credibility of witnesses. Ullom, 340 Ark. at 621, 12 S.W.3d at 208.

Heather's parental rights were terminated pursuant to Ark. Code Ann. § 9-27-341, which states that an order terminating parental rights shall be based upon a finding by clear and convincing evidence (1) that termination is in the best interest of the juvenile after considering 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, and (2) that termination is founded based on one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). The applicable grounds relied upon by the trial court in this case were that the children had been adjudicated by the court dependent-neglected and continued out of the custody of the parent for sixteen months; that despite meaningful effort by DHS,the parents failed to remedy the condition that caused removal; and that the parents manifested an incapacity and indifference to remedy the conditions causing removal.

In Trout v. Ark. Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Nov. 4, 2004), the Arkansas Supreme Court affirmed the trial court's termination of the parental rights of a mother where she had not been stable for a sufficient amount of time to indicate reunification was possible. The supreme court found that to give the mother more time to comply would only ignore the fact that she had consistently failed to comply with the court's order. In Camarillo-Cox v. Ark. Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Jan. 20, 2005), the supreme court affirmed a trial court's termination although the mother had shown significant improvement and had eventually met nearly all of the case plan requirements, because those improvement were not made until the "eleventh hour" of the case. "[E]vidence that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy the situation that caused the children to be removed in the first place." Id. at ___, ___ S.W.3d at ___.

We must determine whether the trial court clearly erred in finding clear and convincing evidence supported the termination of Heather's parental rights. It is undisputed that the children have been out of Heather's custody for sixteen months. Although Heather made several attempts to provide a stable, safe home environment and suitable, steady employment, she was unable to hold down a job for more than a couple of weeks and moved residences at least five times during the sixteen months her children were out of her custody. Tracy Darter testified at length regarding Heather's inability to keep a job or secure a place to live. Darter recommended that Heather's rights be terminated and that the children be placed with the Shelbys. Additionally, Dr. Tannehill testified that through therapy, thechildren were beginning to behave appropriately and resolve some of their psychological issues. She also stated that the children were responding well to the Shelbys. Heather asserted at the termination hearing that she had finally established steady employment and a stable residence. However, even if the trial court had believed her living arrangement with her new boyfriend was stable and her recently acquired job was reliable, Heather's compliance with the court's orders at the last moment did not outweigh her inability to comply for sixteen months.

After reviewing the foregoing facts and coupled with the mandates of our supreme court, we conclude that the trial court's order is supported by clear and convincing evidence. In the present case, the trial court had the opportunity to observe Heather Sheridan for an extended period of time, and during that time she consistently failed to comply with the court's order to secure steady employment and reliable housing. The court interpreted Sheridan's failure to comply with its orders as her incapability of remedying the problems or her indifference to the need to do so. Based on all the evidence, the trial judge felt it was in the best interests of the children to terminate Heather's rights and place the children with the Shelbys. After reviewing the evidence, we cannot say that its decision was clearly erroneous. Accordingly, we affirm the trial court.

Affirmed.

Pittman, C.J., and Robbins, J., agree.