Sherry Childers (Casey) v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

SHERRY CHILDERS (CASEY)

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA 05-30

October 26, 2005

APPEAL FROM THE CIRCUIT COURT OF SEBASTIAN COUNTY

[NO. JV-2002-523]

HONORABLE MARK HEWETT,

JUDGE

AFFIRMED

Terry Crabtree, Judge

Sherry Childers Casey appeals from an order terminating her parental rights in her child, R.C. For reversal of that decision, she contends that her right to due process was violated by the absence of a case plan and that the trial court's ruling is not supported by sufficient evidence. We affirm.

A review of the procedural history and the hearings held in this case discloses the following chain of events. The child was removed from appellant's custody by an emergency order dated September 13, 2002. Appellant had been arrested on a charge of possession of drug paraphernalia, and the child had been left in the care of a neighbor, who reported that the child had been left alone on other occasions. It was also said that the apartment where appellant was living had no electricity or bedroom furniture and that dirty clothes were in piles throughout the home. Appellant was also unemployed and two weeks behind in the rent. The adjudication hearing was held in October, and the court found that the child was dependent-neglected. Custody was placed with appellant's

maternal aunt. Appellant was directed to obtain appropriate housing and employment, to complete parenting classes, and to submit to a drug and alcohol assessment and complete any recommended treatment.

The case was reviewed in April 2003. Custody of the child remained with appellant's aunt,and in addition to the previous requirements, appellant was ordered to attend Narcotics Anonymous meetings twice a week and to provide proof of her attendance at the next hearing; she was also to submit to random drug screenings. These additional requirements were ordered because appellant had been charged in Oklahoma with possession of marijuana, to which she had pled no contest. Her counsel stated at the hearing:

[Appellant] ... really still doesn't feel she has a problem. She said she would prefer going on just some sort of drug testing program, if they want to routinely drug test her. She doesn't think rehab is where she needs to be, but she is willing to take a drug test whenever requested.

The permanency planning hearing was held on September 11, 2003, which appellant did not attend. The goal of the case plan was changed from reunification to termination of parental rights, and adoption.

At the termination hearing, held on December 15, 2003, appellant testified that she currently resided at the Sebastian County Adult Detention Center and that she had been there a month after her arrest on charges of manufacturing methamphetamine, possession of marijuana with intent to deliver, and possession of drug paraphernalia. Prior to her arrest for those offenses, she had been charged with possession of ephedrine with intent to manufacture methamphetamine. During the course of the fifteen-month proceedings, she had moved from place to place. She had lived in an apartment on South Dallas, on 21st Street, and a place at Park and Kincaid. Appellant said that she had lived with her aunt for five months, during which time she saved enough money to buy a car. For several months she had a home in her own name next door to her aunt. Prior to the most recent drug arrests, she had lived nowhere in particular. Appellant said that she had a job at Taco Bell, which she quit because of drugs. She had worked for brief periods of time at OK Foods, J-Mart, Texaco, and Foamex.

Appellant further testified that the court had told her that, in order to regain custody of her child, she had to obtain housing, keep a job, stay off drugs, and complete parenting classes. She said that she had attended four out of the eight parenting classes and that she had not completed the program because of drugs. Appellant also testified that she was required to submit to a psychologicalevaluation. She had not completed this requirement in that she had missed the two appointments that had been set up for her. With regard to the drug and alcohol assessment that she had undergone, appellant admitted that she had not been truthful when she told the evaluator that she was not using drugs. Appellant testified that she was not presently using drugs, that she needed and was willing to undergo inpatient drug treatment, that she believed there was a space for her at Gateway, and that she would be in a position to take her child in four to six months.

Cathy Cadelli, the case worker assigned to the case, testified that she came to believe that drugs were a main issue for appellant after her February 2003 arrest. She told appellant that she needed to address any addiction to regain custody of the child. She said that appellant, however, assured her that she did not have a drug problem. Ms. Cadelli said that a psychological evaluation and drug screens had been recommended in the alcohol and drug assessment. However, appellant had missed two appointments for the psychological evaluation. Ms. Cadelli attempted to conduct a drug screen one day, but she said that appellant would not answer the door. Because appellant had no permanent housing, there were times when Ms. Cadelli lost contact with her. Ms. Cadelli said that appellant had failed to obtain appropriate housing, that appellant had not kept a job, and that she had not completed parenting classes. Appellant had also failed to offer proof that she had attended Narcotics Anonymous meetings. Ms. Cadelli did not believe that offering appellant more time was in the child's best interest, as she had little confidence that appellant would make the necessary changes in a short period of time.

Marsha Thompson, a welfare specialist for the Cherokee Nation, testified that the child had been placed in an appropriate Cherokee home and that a desire had been expressed for the child's adoption. She said that the requirements of the Indian Child Welfare Act had been met by appellee, and she recommended that appellant's parental rights be terminated. The child's ad litem concurred with that recommendation.

In an order dated December 18, 2003, the trial court terminated appellant's rights on the ground that the child had been out of the home in excess of one year and that, despite the meaningfulefforts of appellee, appellant had failed to remedy the conditions that had caused removal. The trial court found that continued custody of the child with appellant "would result in serious emotional and physical harm" to the child. The court stated:

Specifically, the court finds that the [appellant] has failed to comply with the orders of the Court and the case plan. The court finds that the [appellant] testified that she was fully aware of the terms of her case plan. The [appellant] conceded that she was responsible to remain drug free, obtain and maintain housing, obtain and maintain employment, submit to a psychological evaluation and complete parenting classes. By the mother's own testimony, she completed only 4 of 8 parenting classes, never obtained and maintained housing or employment, and failed to appear for two scheduled psychological evaluations. Further, the [appellant] testified that she used drugs throughout the course of this case and lied about it to the Court, the caseworker, and the person who administered the drug/alcohol assessment. The [appellant] is presently incarcerated in the Sebastian County Adult Detention Center on felony drug charges. The Court finds that, compared to her circumstances at the time the juvenile was removed, the [appellant's] situation has actually deteriorated in the past 15 months since the child was taken into care.

Appellant's first argument on appeal is that she was denied due process because the record does not show that the case plan was filed, or that it even existed. This argument is based on Ark. Code Ann. § 9-27-402(a)(2)(A) (Repl. 2002), which requires the case plan to be developed and filed with the court no later than thirty days after the petition was filed or the juvenile was first placed out of the home, whichever is sooner, and subsection (c)(5)(A) of the statute, which requires the case plan to include the specific actions to be taken by the parent to eliminate or correct the identified problems or conditions and the period during which the actions are to be taken. Appellant contends that, because the case plan was not filed, it is speculative as to whether she received notice of the actions she was required to take in order to be reunified with her child. Appellant, however, did not make this argument in the proceedings below. Her failure to raise an objection on this basis precludes us from considering the issue on appeal. Rodriguez v. Ark. Dep't of Human Services, ___ Ark. ___, ___ S.W.3d ___ (Dec. 16, 2004). We also note that her own testimony at the hearing reveals that she was not laboring under any misapprehension as to what was required of her for the child to be returned to her custody.

Appellant next argues that the trial court's decision to terminate her parental rights is clearly erroneous. We cannot agree.

An order forever terminating parental rights must be based on clear and convincing evidence that 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. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). In addition to determining the best interest of the child, the court must find clear and convincing evidence that circumstances exist, which according to the statute, justify terminating parental rights. Johnson v. Ark. Dep't of Human Services, 78 Ark. App. 112, 82 S.W.3d 183 (2002). One such set of circumstances, as found by the trial court here, 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." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a).

Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Ark. Dep't of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997). 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. Browning v. Ark. Dep't of Human Services, 83 Ark. App. 1, 115 S.W.3d 332 (2004). Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2005) provides that an order terminating parental rights must be based on clear and convincing evidence. When the burden of proving a disputed fact in a termination proceeding is by clear and convincing evidence, the inquiry on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Minton v. Ark. Dep't of Human Services, 72 Ark. App. 290, 34 S.W.3d 776 (2000). To conclude that a trial court made a clearly erroneous decision, we must be left with a definite and firm conviction that a mistake has been made. Browning v. Ark. Dep't of Human Services, supra. In resolving the clearlyerroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Dinkins v. Ark. Dep't of Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001). We have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. Browning v. Ark. Dep't of Human Services, supra.

In arguing that the decision is clearly erroneous, appellant contends that the trial court failed to make specific findings regarding the potential harm to the health and safety of the child by continued contact with her. The short answer to this argument is that the trial court did make a best-interest determination considering the potential of harm to the child by continued contact with appellant, as previously recited in this opinion. Appellant also contends that the evidence shows that she was addicted to drugs, but not that she manifested the "incapacity or indifference to remedy the circumstances that prevented the return of the child to her custody." However, that language comprises the ground for termination found at subsection (b)(3)(B)(vii)(a)1 of Ark. Code Ann. 8-27-341, which is not at issue here. The ground upon which appellant's rights were terminated is found at subsection (b)(3)(B)(i)(a), which provides for termination where the child has been adjudicated dependent-neglected and has continued out of the custody of the parent for one year and that, 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. In this case, the record demonstrates that appellant was ordered to attend parenting classes, to submit to a drug and alcohol assessment, to submit to a psychological evaluation, to participate in random drug testing, to attend biweekly Narcotics Anonymous meetings, to maintain stable employment, and to obtain appropriate housing. The evidence shows that appellant complied with none of these requirements, save the drug and alcohol assessment, during which she was untruthful about her drug addiction. We are not ableto say that the trial court's findings are clearly erroneous.

Affirmed.

Hart and Glover, JJ., agree.

1 As a ground for termination, this subsection provides that "other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that the 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 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.