Sandy Ashby Evans Gaches and Eugene Eads v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA05-175

DECEMBER 7, 2005

SANDY ASHBY EVANS AN APPEAL FROM THE MADISON

GACHES and EUGENE EADS COUNTY CIRCUIT COURT [JV 2002-

APPELLANTS 70-3]

V.

HONORABLE SUSAN A. FOX, SPECIAL

ARKANSAS DEPARTMENT OF JUDGE

HUMAN SERVICES

APPELLEE AFFIRMED

Olly Neal, Judge

Appellants Sandy Gaches and Eugene Eads appeal from an order of the Madison County Circuit Court that terminated their parental rights. For reversal, appellant Gaches argues three points: (1) the trial court erred in finding that there was sufficient evidence to terminate her parental rights as to Dr.E., Du.E., S.E., I.E., K.L., and J.L.; (2) the trial court erred in not granting permanent custody of the minor children to their grandparents or placing some of the children with appellant and some with their grandparents as a lesser restrictive alternative to termination of parental rights; (3) the trial court erred in allowing this case to be heard by a special judge. Appellant Eads also argues three points: (1) the circuit court erred in terminating his parental rights as to Du.E. and S.E. without providing him the notice and opportunity to be heard that is required by statute and the due process guarantees of the federal and state constitutions; (2) the circuit court erred in terminating his rights as putative father of J.L. and K.L. without providing him the notice and opportunity to be heard that is required by statute and the due process guarantees of the federal and state constitutions; (3) he was denied due process of law because the Arkansas Department of Human Services (ADHS) failed to specify in the case plan the actions he needed to take to achieve reunification with hischildren. Finding no error, we affirm the trial court.

On November 26, 2002, ADHS placed a seventy-two hour hold on thirteen children located in the home of their maternal grandparents Cleta and Ike Evans. Appellant Gaches is the mother to six of these children-Dr.E., Du.E., S.E., I.E., K.L., and J.L. Appellant Eads is the legal father of Du.E. and S.E. and the putative father of J.L. and K.L. In the affidavit supporting placement of the children, ADHS worker Denise Gibson wrote in part:

The Department opened a protective services case on Aug. 21, 2002, due to a founded investigation of environmental neglect, inadequate housing, and inadequate supervision. [Ad.E.] was playing in the road unsupervised and was almost hit by the road grader. There was also another founded investigation in October, 2002, for inadequate supervision and environmental neglect. This time [Ad.E., Du.E., and S.E.] were playing in and around an open pit ground fire. They were all covered with ashes. There were five adults in the home at the time and none appeared aware of the children being around the fire. The home continues to be in minimal standards, then the next week it will digress. In addition to that, the school had contacted us regarding the children missing school again due to head lice. On one visit to the home, live lice jumped on a worker. They also stated that [I.E.] had been sent home due to not being up-to-date on his shots. It was determined that the situation had not improved with services and there was little likelihood that any other services could be added to remedy the problems. Aaron instructed one of the workers to visit the home to determine the condition of the home and the safety of the children. Dawn and Sharon went to the home. They determined that the home was no better and appeared to be worse in some regards. Sharon saw dog feces on the floor within reach of the toddlers. Dawn called the office and requested Tracy and I to come out there. Tracy and I arrived to find nine of the thirteen children in the home as well as Cleta Evans, Sandy Ashby, Stephanie, and Charles Swadley. Stephanie and Charles were upstairs asleep during most of the visit. There were only four children in school. The rest were home due to head lice. There was still trash, broken glass, wrecked cars, and other hazardous materials in the yard within reach of all of the children. The home was again very dirty. The front room had piles of clean and/or dirty clothes, trash, and debris all over the floor. There was lumber piled in an unsafe manner against a wall. There were still no rails on the staircase. There were also bags of trash piled in the floor. The bedrooms were again cluttered enough that the floor was not visible. The wood stove in one bedroom appeared to be emitting noxious fumes. It was irritating to the eyes. The children's bedroom still has exposed wiring within reach of most of the children. There were clothes piled on the beds to hamper their use. The bathroom was not very accessible due to all the clothes piled in front of the door. The kitchen had dirty dishes in the sink, on the cabinet, and stove. There was crusted, dried food on the dishes. The floor was extremely dirty with trash, food particles, and wood chips. There were bags of trash piled in this room also. The dining room was also very nasty. There were also dishes piled on the table in this room. The babies were crawling on the floor and at one point, [S.S.] was seen to place particles of debris in her mouth. There were countless flies swarming the children in that room. Most of the children were inadequately dressed for the weather. They were all dirty and some of them had an offensive odor. [S.S. and J.L.] had what appeared to be a contact rash on their face.

After staffing with the supervisor, it was determined that due to the seriousness of the situation, the children were in imminent danger of continued severe maltreatment. Theagency staff placed a 72-hour hold on all the children on Nov. 26, 2002 at 3:00 p.m. The family resisted and police back up was requested. The family was asked to pack clothes for the children. Only three children were given clothes. There were no diapers, formula, or baby food sent for any of the infants or toddlers. The family stated they had just run out.

A probable-cause hearing was held on December 6, 2002. At that hearing, the Madison County Circuit Court found that probable cause existed and that the children should remain in ADHS custody. At the January 3, 2003, adjudication hearing, the court found that since 1994 this family has had an ongoing, chronic, poor and unsafe environment and that too many people continued to reside in Cleta and Ike Evans's home. All the children were adjudicated dependent-neglected. Thereafter, on January 10, 2003, the court granted appellant Gaches temporary custody of her six children; however, they were placed back into ADHS custody in April 2003. That was the first time that appellant had ever had all six of her children. Prior to this case, appellant Gaches's parents maintained custody of her four oldest children. After the determination was made that she was not diligently working towards reunification, the goal was changed to termination. Both appellants' parental rights were terminated on July 15, 2004. This appeal followed.

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. Cobb v. Arkansas Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (Jun. 30, 2004). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Chase v. Arkansas Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (May 19, 2004). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). In reviewing the trial court's evaluation of the evidence, we will not reverse unless the court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Id. A finding is clearly erroneous when, althoughthere 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. Arkansas Dep't of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. McFarland v. Arkansas Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (Jun. 15, 2005). 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. See id.

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. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2002). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2002). One such set of circumstances that may support the termination of parental rights is when the "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." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2002).

I. Appellant Gaches

A. Termination of parental rights

Appellant Gaches argues first that the court erred in terminating her parental rights. However, the evidence is clear that the children had been adjudicated by the court to be dependent-neglected, had continued out of appellant's custody for well-over twelve months, and despite a meaningful effort by the department to rehabilitate her and correct the conditions that caused removal, those conditions had not been remedied.

Appellant did not have custody of four of her children before the trial court issued its orderterminating her parental rights. DHS put forth extensive efforts to rehabilitate the home. DHS provided homemaker services that addressed parenting, time management, and cleanliness of the home. The trial court ordered a trial placement that began on January 10, 2003, and was terminated on April 10, 2003. During the trial placement, the court found that, among other things, five of the children had been left home alone asleep while appellant took I.E. to school; that Huntsville police officer Mike Livermore had observed several of the children on numerous occasions playing outside unsupervised; that appellant had left two of the children asleep in her car while she visited one of the children's school; that the apartment was in steady disarray; and that appellant had left four of her children in the care of family members while she took one of the youngest children to a doctor's appointment in Little Rock although the Department had not approved any babysitters. The court's initial probable-cause order, finding the juveniles dependent-neglected, found that there was inadequate supervision and environmental neglect. Under Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)(a), the court can terminate appellant's parental rights if those areas are not remedied after twelve months, and DHS made a reasonable effort to rehabilitate the home. In this case, after over nineteen months, appellant had still failed to demonstrate the ability to properly care for her children.

Since the removal of the children, appellant had maintained stable housing, submitted to random drug-testing, and attended regular visitation with the children. Appellant's supervision of the children during visits had improved by the time of the hearing, and she had also maintained stable housing and passed all drug tests. However, appellant had married a convicted felon, who felt that he could help appellant with her kids, although he had a son of his own with whom he had no contact. Also, although appellant testified at the termination hearing that she and her new husband had purchased land near Wesley, Arkansas, and planned to build a home, Mr. Gaches testified that they could not afford it and that he had signed the land back to the seller. He testified that he thought his wife was aware of that. The court found these inconsistencies damaging to appellant Gaches's credibility. Furthermore, the court found appellant's employment history to be sporadic. At the time of the termination hearing, she had been employed with Fuel Zone for just over four months.

Moreover, although appellant testified that she was ready to have all six of her children, her caseworker Rick Coyne, her mother Cleta Evans, and her counselor Kathleen Housely all felt that appellant could not take them all back. In making its determination to terminate appellant's parental rights, the court found that appellant Gaches continued to exhibit the behaviors and thought processes which caused her children to remain in foster care, including dependency on others and lack of insight as to her children's needs, and that it would not be in the children's best interest to continue to linger in foster care due to appellant's inability to adequately care for them. Additionally, at the time of the hearing, the children had all made significant behavioral and educational improvements. Accordingly, we hold that the trial court's decision to terminate appellant Gaches's parental rights was not clearly erroneous.

B. Alternative placement of the children with their maternal grandparents

Appellant next argues that the court should have considered placement of the children with their maternal grandparents instead of termination. The court had ample justification for choosing not to place the children with the maternal grandparents. First of all, the history of ADHS with this family goes back to 1994 when a case was opened on the maternal grandparents for the same issues at hand, mainly environmental neglect. At the time, appellant Gaches was pregnant with her first child. In November 2002, when the children were removed from the home, all thirteen were removed from the grandparents' home, where the conditions were described in the above-quoted affidavit. Some of the other children of appellant Gaches' siblings had already been placed back into the custody of the maternal grandparents. The court had already determined that the grandparents were over-loaded with thirteen grandchildren in their care, along with others living in their home. Obviously, the court would not place these children back in the home to overload the grandparents again only to create the situation that caused removal in the first place.

C. Special judge

Finally, appellant argues that the court erred in allowing the case to be heard by a special judge. On appeal, she asserts that, because our state constitution requires that special circuit courtjudges be elected by the attorneys in attendance at the court and that the proceedings be entered upon the record and because this record contains no direct information about the way in which the special judge who heard this termination proceeding may or may not have been elected, it cannot be determined whether all proper procedures were followed; and therefore, the judgment is void and appellant's parental rights should be reinstated. Because appellant failed to raise this issue to the trial court in a proper pleading and obtain a ruling upon the issue, it is not preserved for appeal. An issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal. Even a constitutional issue must be raised at trial in order to preserve the issue for appeal. See Foundation Telecomm. v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000). II. Appellant Eads

A. Adequate notice and an opportunity to be heard

Appellant Eads contends first and second that the court erred in terminating his rights to Du.E., S.E., J.L., and K.L. because he did not have adequate notice and an opportunity to be heard. At the time the children came into ADHS custody, appellant Eads had already been determined to be the legal father of Du.E. and S.E. Only during the course of the case was the paternity of J.L. and K.L. questioned. After paternity testing, it was determined that appellant was their father. However, appellant never filed to establish paternity as to J.L. and K.L. Appellant Eads appeared at two hearings -the probable-cause and the adjudication hearings. At the probable-cause hearing, he advised the court that he did not wish to have a court-appointed attorney and that he had hired private counsel. The court ordered all parents to maintain employment, maintain stable housing, and submit to drug screens. Thereafter, the adjudication hearing was set for December 23, 2002. That hearing was held on January 3, 2003, and appellant Eads was present when the court ordered the parents to again obtain and maintain stable housing, submit to and pass random drug screens, participate in individual and drug counseling, participate in intensive family services if available, and obtain and maintain stable employment. Appellant advised the court that he had employed counsel Larry Douglas, but neither appellant nor Douglas appeared thereafter.

In April 2004, the Honorable Judge Zimmerman received a letter from appellant Eads dated March 31, 2004. Appellant had moved to Alamosa, Colorado. In the letter, appellant Eads wrote that he could not attend the May 7, 2004, hearing because he could not afford to make the trip; that he and his wife wanted custody of his sons S.E. and Du.E; that he has questions about being the father of K.L. and J.L. and wanted additional testing to assure that they were his; that if K.L. and J.L. were his then he wanted custody of them also; that he was attending a high school equivalency program to achieve his GED; that he had been accepted to a local college for welding certification; and that he had a part-time job as a metal cutter for a steel company. By order dated April 8, the court appointed counsel for appellant Eads. Appellant's counsel appeared at the June 2004 hearing without his client and argued on his behalf that he had not received notice of the permanency planning hearing where the goal was changed from reunification to termination. The court stated:

The Court will take, obviously, judicial notice of what appears in the record as filed with the Circuit Clerk, and the Court takes notice that the petition for termination of rights has a certificate of service to Eugene Eads at 20677 Groff Road in Springdale, Arkansas. The Court then takes notice that it was not until April that Mr. Eads who had been ordered to maintain stable housing bothered to notify the Court that he had moved to Colorado and he had a new address.

Due process is fundamentally about having a meaningful opportunity to be heard in a meaningful time frame. Tsann Kuen Enters. Co. v. Campbell, 355 Ark. 110, 129 S.W.3d 822 (2003). The notice requirements within the code vary according to the purpose of each statute; so long as the notice provided is "reasonably calculated" to apprise interested parties of pendency of the action, the notice will pass constitutional muster. Id. Arkansas Code Annotated section 9-27-337(a)(1) (Repl. 2002) requires the court to review dependency-neglect cases every six months "until there is a permanent order of custody, guardianship, or adoption or the juvenile is returned to the parent, guardian, or custodian and the court has discontinued orders for family services." Section (e) further provides that "[i]t shall be the duty of the petitioner to provide all parties with reasonable notice and serve this notice on all parties in accordance with the Arkansas Rules of Civil Procedure."

Although appellant was present at the first two hearings, he failed to appear at any subsequenthearings. He notified the court in April 2004 that he had moved and could not afford counsel; the court immediately appointed him counsel. Counsel did not appear until June 2004. At the hearings at which appellant did attend, he was ordered in part to maintain stable housing. Counsel for appellant argued that, although he was ordered to maintain stable housing, the court did not state that he could not do so out of state or that he had to notify ADHS or the court that he had moved. While that is true, the court could only provide appellant with notice at his last known address. The record is replete with evidence that appellant Eads was provided notice. Therefore, because the notice provided to appellant was "reasonably calculated" to apprise him of the pendency of this action, the notice was sufficient to pass muster. Tsann Kuen Enters. Co. v. Campbell, supra. Although he had not participated in the case plan since January 3, 2003-the date of the adjudication hearing-he had obviously received notice of the hearings because he wrote the court in March 2004 stating that he could not attend the May 2004 hearing due to financial difficulties.

B. Termination of parental rights

Finally, the trial court did not err in finding that the relevant facts warranting termination of appellant Ead's parental rights were established by clear and convincing evidence. Appellant Eads abandoned Du.E. and S.E. "Abandonment" is defined as the "failure of the parent to provide reasonable support and to maintain regular contact with the juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future and the failure to support or maintain regular contact with the juvenile without just cause or an articulated intent to forgo parental responsibility." Ark. Code Ann. § 9-27-303(2) (Repl. 2002). Knowing that his children were in ADHS custody and that termination of his parental rights was possible, appellant chose to move to Colorado, foregoing the opportunity to maintain regular contact with his children. Moreover, he failed to provide them with reasonable support as well. In fact, it was not until the Internal Revenue Service took his $3300 tax return that appellant provided his children with any financial support at all-albeit involuntarily. With regard to J.L. and K.L., appellant was never adjudicated to be their father. Therefore, pursuant to Ark. Code Ann. § 9-27-341(2)(A)(ii) (Repl. 2002), appellant Eads was required to provethat significant contacts existed with J.L. and K.L. in order for his rights to attach. While it is true that appellant Eads claimed uncertainty as to his fathering of J.L. and K.L., appellant Gaches testified as follows:

The issue about Eugene being the father of J.L. and K.L. started when they were born. He's known about it; he admits it to his family and just a few other people, but when it actually comes right down to it, they're not his. When I say when it actually comes down to it, I mean in a sense of being involved in their lives. . . . Eugene has never had anything to do with his kids.

Regardless, there is no proof that he maintained significant contacts with those that he knew to be his - Du.E. and S.E.- let alone those siblings of theirs-J.L. and K.L.-about which he claimed to be unsure.

C. Case Plan

Third, appellant argues that the court erred in terminating his rights over his objection without requiring ADHS to specify in the case plan the actions he needed to take to achieve reunification with his children. The court ordered appellant, along with all other parents involved to maintain stable housing, employment, submit to random drug testing, and to participate in drug counseling and intensive family services. Appellant submitted to a drug test at the probable cause hearing that was clean. However, he never participated in the case again until he notified the court by letter in March 2004. Therefore, the problem here lies with the fact that appellant failed to participate at all even though he knew about the ongoing case involving his children. Accordingly, as to appellant Eads, we affirm the termination of his parental rights as to Du.E., S.E., J.L., and K.L.

Affirmed.

Glover and Vaught, JJ., agree.