Bommie Ridgell and Latricia Watson v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-322

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

BOMMIE RIDGELL and LATRICIA

WATSON

APPELLANTS

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES APPELLEE

CA 05-322

October 5, 2005

APPEAL FROM THE FORT SMITH

COUNTY CIRCUIT COURT,

[JV-02-782]

HONORABLE MARK HEWETT,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellants Bommie Ridgell and Latricia Watson appeal from an order terminating their parental rights with respect to their child Kyana Alleriah Ridgell, born November 8, 2002. They have filed separate briefs. Appellant Ridgell raises two points of appeal: (1) that "the trial court erred in finding there was clear and convincing evidence that termination of parental rights was in the child's best interest and that one of the grounds was proven"; and (2) that the trial court erred in finding that DHS presented clear and convincing evidence that it made reasonable efforts to provide services to reunify the family. Appellant Watson raises one point of appeal: that the trial court erred in finding that there was clear and convincing evidence supporting termination of her parental rights. We affirm.

This case began when DHS, filed a petition for dependency-neglect on December 17, 2002, because Kyana had been taken into emergency custody when she was abandoned in a car. Appellant Ridgell was first listed as the child's putative father, but

subsequent DNA testing established his paternity. He was driving the car in which Kyana was a passenger. When the vehicle was stopped by police, Ridgell gave a false name, fled the scene, and left the baby behind. Drugs were found in the baby's car seat.

Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Ullom v. Arkansas Dep't of Human Servs., 67 Ark. App. 77, 992 S.W.2d 813 (1999), aff'd 340 Ark. 615, 12 S.W.3d 204 (2000). Nevertheless, parental rights 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) (Repl. 2002), 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 trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Id. 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. Id. Furthermore, we will defer to the trial court's evaluation of the credibility of the witnesses. Id.

Appellant Ridgell

In his first point of appeal, appellant Ridgell contends that "the trial court erred in finding there was clear and convincing evidence that termination of parental rights was in the child's best interest and that one of the grounds was proven." However, he does not pinpoint exactly how DHS failed to establish any of the grounds for termination. Instead,he contends that he had complied with several of the elements of the case plan and that he was making a sincere effort, rather than demonstrating the "studied indifference" shown by the parent in Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). His argument is not convincing.

Bobby Wilson, a child-support enforcement officer, testified that his office had not received any child-support payments from Ridgell and that he was $1320 in arrears. Wilson acknowledged that a July 26, 2004 paycheck of Mr. Ridgell's showed a garnishment of $44. He explained, however, that even if such withdrawals had been made from Ridgell's paychecks for the last seven or eight weeks, it still would not explain why Ridgell made no payments between December 16, 2003, and the end of May 2004.

Bommie Ridgell testified that he was twenty-two years old; that he was living in an apartment; that he had bought a car but had no insurance; that he was working at OK Foods Warehouse through a temporary service and had been there for about two and a half weeks; and that prior to OK Foods, he had worked for a friend for a couple of weeks and for Southern Steel for about a month and a half. He explained that he was in jail from April to July 2003 on the charge of dealing drugs; that he went back to jail in October for "hindering apprehension"; and that he was released again in November. He stated that child support was set at $40 a week in December 2003 when the DNA test results showed him as the child's father.

Ridgell testified that he was ordered to attend parenting classes; that he had been to a total of ten classes; that DHS had told him that only eight of the classes counted; and that he had to complete three more. He denied that he got hostile every time DHS tried to make suggestions. Ridgell acknowledged that the court ordered him to go to a drug/alcohol assessment, but he said that Tiffany May, a family-services worker, never told him to show up for one. He said that he did not recall her giving him a piece of paper about such an assessment.

Ridgell testified that since May 6, 2004, he had not missed any visits with the child based on personal reasons but that he had missed a couple for DHS reasons. He explained that his mother and sister were supportive of him and would help him with the child. He explained that he did not do the things on his case plan from December 2003 to March 2004 because he was "getting himself together"; he said that things started going right when he got his lawyer in late December 2003. He explained that the December hearing was a permanency-planning hearing and that at his request, the judge agreed to give him some more time to do the things that he was supposed to do. He stated that he missed the March review hearing because of car trouble.

Ridgell acknowledged that only two child-support garnishments had occurred since being ordered to pay child support in December 2003. He described the problems that he said he had communicating with Tiffany May. He acknowledged that he told DHS attorney Whitmire at the December 16, 2003 hearing that if tested on that day, hewould test positive for "smoking," and he said that the last time he used any illegal drugs was January 1, 2004.

Tiffany May, a family-services worker, testified that she was assigned to this case on January 13, 2003. She stated that she considered the child to be adoptable; that the current foster family had expressed an interest in adoption if the parental rights were terminated; and that the child had been in that placement since she was seven weeks old.

May explained that the services offered to appellants were psychological evaluations, visits, random drug screens, drug/alcohol assessment, parenting classes, and DNA testing. In addition, she stated that there has been foster parenting and medical care provided for the child. She stated that she was asking for termination of the parental rights of both parents because she believed that it was in the child's best interests.

May testified that Ridgell had twenty-nine visits available to him since the December court order; that he attended fifteen of those visits; that between December 16 and March 9, he made only three visits; that between March 9 and June 15, he made five visits; that between June 15 and August 5, he made all eight visits, but left early on the July 21 visit; and that on August 4, he came fifteen minutes late and left forty-five minutes early. She stated that she "did not know until yesterday" that the reason he left early on the July 21 visit was because he had a new job and had to get to work by 2:30. She said that he did not say anything to her when he left on that day.

May stated that Ridgell's visits with the child were supervised; that she had some concerns about his interactions with the child; that he gave the child candy, which upsether stomach "due to food allergies and digestive issues"; that when she, May, tried to offer instructions, appellant told her that he did not need her advice; that she had not noticed any bonding between Ridgell and the child; and that the child is very friendly and will go to anyone who reaches for her.

She summarized for the court her problems with Ridgell's drug screens: he was referred for six drug screens; three were clean; the other three were not positive but had problems. On July 21, there was no sample because he left early; on February 25, the sample was cold; and on April 22, he did not show for the test.

May stated that Ridgell had been in his current housing for a couple of months; that he had lived in at least four places since the paternity order was issued; and that he had been in his current job for about a month. She stated that she made a referral for a drug/alcohol assessment on March 8; that she tried to contact him on February 25; that the phone number had been disconnected; and that the assessor was therefore not able to contact him. She stated that she had had five different telephone numbers for Ridgell.

May acknowledged that Ridgell has been to every single visit with the child since May 6. She also acknowledged that she never specifically handed Ridgell a sheet of paper telling him where and when to go for drug/alcohol assessment. She explained that she did not make those appointments; that the information is given to the assessor; that the assessor contacts the person; and that, together, the assessor and the client work out a date that is agreeable to both. She stated that she had made three attempts to visit Ridgell's apartment but that she had never been able to go inside. She acknowledged that the outside of the complex did not appear to be dangerous or inappropriate.

Ridgell returned to the stand and testified about his relationship with the child. He stated that she calls him "Daddy" and lets him hold her; that he had only given her candy once; and that he had only had three residences since the paternity order was entered in December. He said that he thought it was best for the child to live with him but that he "needed time." He acknowledged that there were a lot of things he could do "to better himself." He stated that the tension between him and Ms. May eventually lessened; that he finally understood what was expected of him; and that understanding what was expected of him helped him comply with his case plan after May 6.

In its order terminating appellants' parental rights, the trial court found that DHS had proven by clear and convincing evidence that it would be contrary to the child's best interests, health, safety, and welfare to return her to the parental care and custody of her parents; that the parents had not complied with the case plan and prior court orders; and that :

b) the father, Bommie Ridgell, has not maintained stable housing. The caseworker has not been able to gain access to the inside of his residence. He has not maintained stable employment or paid child support as ordered. He did not submit to a drug and alcohol assessment or follow up treatment. Only three (3) of his six (6) drug screens were valid. He attended some parenting classes, but did not complete the course. He visited on fifteen (15) of the twenty-nine (29) possible visits. He has no valid driver's license, is driving illegally and has no title or insurance on the vehicle.

In addition, the trial court found that despite a meaningful effort by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions had not been remedied by either parent and that the child had been out of the home for a period inexcess of twelve months. The court also found that the child was readily adoptable. We find no clear error in the trial court's findings.

Ridgell admitted at least some continued drug use after the child was taken into custody. In addition, three of six drug screens, while not positive for drug use, had suspicious surrounding circumstances involving Ridgell either not taking the test at all or having a cold urine sample. Ridgell was ordered to pay $40 per week in child support. He acknowledged that at most only two support payments had been deducted from his paycheck; that he had continuing conflicts with the caseworker, moved around, changed jobs, and had different telephone numbers; and that of the available opportunities to visit with the child, he came for barely half of the visits.

These findings satisfy more than one of the statutory grounds for termination. That is, the child was adjudicated dependent-neglected, had continued outside of the parents' custody for more than twelve months, and despite meaningful efforts by DHS to rehabilitate and correct the conditions that caused removal, they had not been remedied by either parent. In addition, the child had lived outside the home for more than twelve months, and both parents had willfully failed to provide significant material support in accordance with their means or to maintain meaningful contact with the juvenile.

For his remaining point of appeal, appellant Ridgell contends that the trial court erred in finding that DHS presented clear and convincing evidence that it made reasonable efforts to provide services to reunify the family. We find no basis for reversal.

First, Ridgell appears to be raising this issue for the first time on appeal, and therefore it was not preserved for our review. Myers v. Arkansas Dep't of Human Servs.,____ Ark. App. ____, ____ S.W.3d ____ (May 11, 2005). Even if we were to address the issue, however, we would find no clear error. In paragraph seven of its order, the trial court listed some of the services that DHS had provided: "visitation, referrals for psychological evaluations; referrals for drug and alcohol assessments, parenting classes, random drug screens, DNA testing, foster care, transportation and medical assistance." The trial court concluded that these services constituted reasonable efforts to reunite this family. From our review of the evidence presented to the trial court, we find no clear error in the trial court's findings.

Appellant Watson

For her sole point of appeal, appellant Watson contends that the trial court erred in finding that there was clear and convincing evidence supporting the termination of her parental rights. She divides her argument into two sections: (1) that the trial court did not make a specific finding of fact of potential harm to the health and safety of the children by continued contact with the parent as required by statute, (2) that there was insufficient evidence of parental incapacity or indifference to remedy circumstances. We do not find the arguments convincing.

Again, in its order terminating parental rights, the trial court found that it was contrary to the child's best interests, health, safety, and welfare to return her to the parental care and custody of her parents; that the parents had not complied with the case plan and prior court orders; and that DHS had proven by clear and convincing evidence that:

a) . . . The mother, Latricia Watson, has not visited Kyana Ridgell, who is twenty-one (21) months old at the time of this hearing, in over a year. She has not maintained stable and appropriate housing; did not submit to a psychological evaluation; did not undergo a drug and alcohol assessment or follow up treatment; did not complete parenting classes and did not pay child support as ordered[.]

Watson testified that she lived and worked in Tulsa, Oklahoma. She stated that Kyana is her only child and that the last time she saw her was in April 2003, when she left Fort Smith and went to live in Tulsa. She explained that she is nineteen years old; that she works as an exotic dancer at Night Trips in Tulsa; and that she works Friday through Monday from 7:00 p.m. until 2:00 a.m. She stated that she makes about $200 to $300 a night. Watson stated that she recalled the judge ordering her to pay $40 a week in child support beginning around April 2002. She acknowledged that she had not paid any child support.

Watson further acknowledged that she had "been out of the case" but stated that she was moving back home and did not want the court to terminate her rights. She said that she was going to get another job; that she was trying to get back with Ridgell; that their child was twenty months old; and that the child had been in foster care for nineteen of those twenty months. She essentially explained her absence from the case as resulting from a fear of DHS and the courts. In addition, she asserted that her case worker had her telephone number and address in Tulsa but that the case worker never called her nor sent her any letters. She stated that she made contact with DHS a couple of months ago and set up a visit but that she arrived too late because she had to ride the Greyhound bus. She acknowledged that she does not have a driver's license.

Watson described how the baby came into DHS custody and acknowledged that she had lied about the situation in the past, claiming that her mother's boyfriend had put the drugs in the baby's diaper. She said that she knew Bommie was dealing drugs but that she did not know he was going "to make a run with the baby."

She explained that she "lost contact with what to do down here - the child enforcement and all that ...." She stated that her lawyer told her to send the child-support money to him in money orders but that she did not send anything. She explained that she had taken care of her outstanding warrants "for hot check and videos" that morning by paying $860. She stated that she planned to move back to Fort Smith in a couple of weeks "to get herself together"; that she would probably live with Ridgell if she did not have her own apartment; that she was arrested once in Tulsa for driving without a license; that Bommie picked her up from the bus station when she arrived for the hearing the night before; and that she stayed with him.

She explained that she had not felt able "to deal with herself, yet alone a child"; that she was ready now; that she planned to establish a home and find work in Ft. Smith; and that she was just asking the court to hold off so she could convince the court that she was going to follow through.

On cross-examination, Watson acknowledged that she had received "the first individual case plan"; that she was told at a hearing in December 2002 to start parenting classes; that she attended three classes but stopped when she moved in April 2003; that DHS had written her a letter to do a psychological evaluation; that DHS would not pay for it; that she did not petition the court for help in paying for the evaluation; that she didpay for the drug and alcohol assessment; that she missed some of the visits before she left town; and that she did not appear at the March 17, 2003 hearing "because she had a warrant." She acknowledged receipt of a case plan showing her signature. She stated that she went through extensive tests at Human Skills & Resources, Inc., and that they told her she needed to take a class for making better life decisions; however, she did not take the class.

Watson stated that she was going to look for employment at the best places she could - "Staffmark, factories, and West." She stated that she had worked at Cheyenne's, a club, before moving to Tulsa, and that the only place she had worked in Tulsa was Night Trips.

Bobby Wilson, the child-support enforcement officer, testified that Watson was $3200 in arrears on child support. Tiffany May, the family-services worker, testified that she had had very few contacts with Watson; that at the beginning of December 2002, Watson set up an appointment to visit but never made it; that the last time Watson visited was February 20, 2003; that since then, two visits had been set up, but that Watson did not show for either; and that the child needs permanency in her life.

On cross-examination, May stated that she "just learned [Watson's] address in Tulsa today"; that Watson never made contact with her about that address; that she did not recall having conversations with Watson in the latter part of 2003 where Watson would ask what was going on; and that she did not recall telling Watson to "forget it, it's termination." May stated that she had two conversations with Watson where she explained what the judge ordered and what the case plan entailed; that she asked Watsonabout an address in December 2003 and Watson told her she was in the process of moving; and that May told her to contact her when she got a new address. May explained that she gave information to Human Skills & Resources and that they suggested Watson needed cognitive-behavioral classes. She said that she did police checks as a routine part of her cases and that she had police records on Watson. She explained that she did not know who to refer Watson to in Oklahoma but that she would have made a referral in Arkansas if Watson had requested it, but Watson never requested help. She said that if the client was having problems paying for services that DHS would address it, but she did not recall ever having such a discussion with Watson.

For her first subpoint, appellant Watson contends that the trial court did not make a specific finding regarding potential harm to the health and safety of the child by continued contact with the parent. We disagree. As noted previously in this opinion, the trial court found "it to be contrary to the child's best interests, health and safety, and welfare to return her to the parental care and custody of her parents ...." (Paragraph 4, Order Terminating Parental Rights). There is no requirement that every statutory factor considered be established by clear and convincing evidence. Rather, after consideration of all factors, the evidence must be clear and convincing that the termination is in the best interest of the child. See McFarland v. Arkansas Dep't of Human Servs., ____ Ark. App. ____, ____ S.W.3d ____ (June 15, 2005). We find no clear error in the trial court's conclusion that termination of Watson's parental rights was in the best interest of the child.

With respect to appellant Watson's remaining argument that there was "insufficient evidence of parental incapacity or indifference to remedy circumstances," we simply disagree. Watson herself acknowledged that the child had been in foster care for nineteen of her twenty months; that she did not visit the child after moving to Tulsa; and that she had paid no child support. We find no clear error in the trial court's decision to terminate Ms. Watson's parental rights.

Affirmed.

Pittman, C.J., and Gladwin, J., agree.