Lisa Ann Saunders v. Arkansas Department of Human Services

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ca05-327

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

LISA ANN SAUNDERS

APPELLANT

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA05-327

OCTOBER 12, 2005

APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT

[JV-04-88]

HONORABLE TED C. CAPEHEART, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant Lisa Saunders appeals from the termination of her parental rights by the Sevier County Circuit Court. On appeal, appellant asserts that the trial court erred in finding that the Department of Human Services (DHS) proved by clear and convincing evidence that appellant is mentally ill and unable to properly care for the child making reunification services futile, thus terminating her parental rights. We affirm. 

On July 23, 2004, DHS received an allegation of child maltreatment or neglect regarding J.S., a baby boy born July 22, 2004. The allegation was that on July 22, 2004, a truck driver dropped off appellant at the hospital in hard labor. The baby was delivered by emergency cesarean later that day. The hospital reported that appellant had given several different names and did not have any kind of home address. Tyla Allgood Terrell,

a DHS assessment team member, interviewed appellant and noted that appellant was unable to give a home address, phone number or names of any family members; appellant stated that she had been on the road with friends, visiting different states. Appellant did report that her father's name was Mike, but she did not know his last name because he was an actor and changed his name a lot. Appellant also stated that she owned a trucking company, but did not know how many trucks. When questioned about what she would do when she and J.S. were released from the hospital, she stated that she did not know; she had only two dollars and the only clothes she had were those she had worn into the hospital. Ms. Terrell testified that she had concerns about appellant's mental status because her behavior was delusional. Appellant was drug tested at the hospital and tested positive for "benzo category" drugs. When questioned about drug use during pregnancy she admitted taking pain pills and smoking marijuana. On July 26, DHS filed an emergency petition for custody of J.S. An order granting the emergency petition was entered that same day.

On July 28, appellant was served with a summons and the complaint that set forth the time and date of the probable cause hearing, as well as a copy of the emergency petition and order. Appellant did not appear for the probable cause hearing although she was served with notice of the time and date of the hearing. An adjudication hearing was held on August 24, 2004. At this hearing Ms. Allgood testified concerning her initial interview with appellant. Additionally, Ms. Allgood testified that appellant had a lengthy criminal history and several aliases. Tony Arbor, a DHS caseworker, also testified at the adjudication hearing. Ms. Arbor testified that appellant was taken to the Salvation Army shelter in Texarkana, Arkansas following her release from the hospital but had left the shelter prior to the probable cause hearing, even though she had been served with notice of the probable cause while still in the vicinity of the shelter. Ms. Arbor did not hear from appellant again until several days after the probable cause hearing. At that time, appellant gave her an address in Texarkana, Texas. This address was later determined to be a vacant lot. Ms. Arbor testified that appellant had not maintained regular contact with DHS and the first visitation that they had been able to schedule with J.S. was the week before the adjudication hearing. Appellant reported to Ms. Arbor that J.S. was her eighth child but would not reveal the whereabouts of her other children.

At the conclusion of the hearing, J.S. was adjudicated dependent neglected. The trial court ordered DHS to provide what reunification services it could, determined that the case should be fast tracked, and scheduled a termination hearing for November 4, 2004.

At the termination hearing, Ms. Arbor again testified concerning the initial interview conducted with appellant at the hospital. She also testified that appellant had reported that her mother was Meryl Streep. Appellant also told Ms. Arbor that J.S. was her eighth child and that one of her children was deceased. Despite her assertions that she had other children, appellant could not provide the names of her other children or their whereabouts, nor did she explain why she did not have custody of her other children. Ms. Arbor said that a psychological evaluation had been performed on appellant, and the results were filed in the court report. In addition, two drug screens had been performed on appellant and both had been positive for marijuana. It was Ms. Arbor's opinion that J.S. could not be safely returned to appellant's care and custody.

Appellant testified at the termination hearing. She admitted that she had previously been arrested for prostitution, burglary and possession of a crack pipe. She stated that she owned a trucking company and had between five and twenty trucks. She also said that she had seven or eight other children, but could not remember their names due to a head injury. She explained that her other children were with relatives, but she could not name those relatives.

Also testifying at the termination hearing was Gayla Griffin, an adoption specialist with DHS. She testified that between twenty-five and fifty families were ready, willing, and able to adopt J.S., and one of the families had been preselected for adoption if the termination of parental rights should be granted.

At the conclusion of the testimony, the trial court ruled that DHS proved by clear and convincing evidence that appellant's severe mental illness rendered her unable to properly care for the child and made reunification services futile, and consequently found that her parental rights should be terminated. An order terminating appellant's parental rights was filed November 24, 2004. This appeal followed.

Termination of parental rights cases are reviewed de novo on appeal, and we will reverse the trial court's findings only if they are clearly erroneous or clearly against a preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. Corley v. Ark. Dep't of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1994). In cases involving minor children a heavier burden is cast upon the court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children's best interests. In the Matter of the Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990). This court has no such opportunity, and we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as one involving minor children. Id. Our case law is clear that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Corley at 267, 878 S.W.2d at 431. However, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Id. 

Appellant asserts that the trial court erred in finding that there was clear and convincing evidence to terminate her parental rights. She asserts that reasonable accommodations were not made by DHS to allow meaningful reunification services.  However, during the adjudication hearing appellant requested reunification services and DHS responded that if appellant would provide them with "a place she is actually laying her head" then they "can attempt to so some things." Further, appellant did not claim that she had been denied reunification services at trial, and therefore the issue was not properly preserved for appeal. In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Fouse v. State, 73 Ark. App. 134, 43 S.W.3d 158 (2001) (citing Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998)).  We will not review a matter on which the trial court has not ruled; and a ruling should not be presumed. Id.  The burden of obtaining a ruling is on the movant; matters left unresolved are waived and may not be raised on appeal. Id.

Appellant also asserts that the trial court based its decision on appellant's own seemingly incredible testimony, abruptly declaring her incompetent, while failing to consider whether medication could stabilize her to the extent that she could be a productive and fit parent. On appeal, appellant states that the trial court should have required medical evidence as to her condition before deciding that she was mentally ill. However, appellant never raised that argument at trial. It is well settled that an appellant must raise and make an argument at trial in order to preserve it for appeal. Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003).

At the termination, hearing the evidence was that appellant had previous convictions of prostitution, possession of controlled substances, manufacturing controlled substances and burglary. Appellant also testified that she had seven or eight children but was not sure how many, and that there was a set of twins, but she did not know if one of the twins survived.  She claimed that the children were living with different relatives, but

she did not know the names of those relatives. She additionally claimed that Meryl Streep was her mother, that she was an heir to the Colonel Sanders Chicken fortune, and that she owned several trucking companies but could not remember the names or locations of these companies.  

Tony Arbor testified that two random drug screenings were performed on appellant after DHS was awarded custody of the child, and both screens tested positive for marijuana. Appellant also admitted to using pain pills and marijuana while pregnant with J.S. This court has previously held that a parent's positive drug tests while their child is in foster care demonstrates an indifference to remedying the problems that caused removal of the child and is sufficient evidence to terminate parental rights. Carroll v. Ark. Dep't of Human Servs., 85 Ark. App. 255, 148 S.W.3d 780 (2004).         

After a review of the record, we cannot say that the trial court erred in finding that it was in the best interest of J.S. that appellant's parental rights be terminated.

Affirmed.          

Bird and Roaf, JJ., agree.