Eugene Fry v. Arkansas Department of Human Services

ca05-271

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EUGENE FRY

APPELLANT

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLEE

CA 05-271

JANUARY 25, 2006

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NO. J04-500-3]

HONORABLE STACEY A.

ZIMMERMAN, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Eugene Fry appeals from an order terminating his parental rights to his daughters A.F., born May 16, 1994, and B.F., born September 14, 1995. Mr. Fry raises three arguments for reversal. First, he argues that the trial court erred in finding that there was clear and convincing evidence that termination of his rights was in the best interests of the children. Next, he contends that he was erroneously denied notice and an opportunity to be heard as required by statute and his constitutional right to due process. Finally, Mr. Fry argues that the trial court erred in failing to compel the attorney ad-litem for the children to answer his interrogatories. We find no error and affirm.

This court reviews termination of parental rights cases de novo. Mayfield v. Arkansas Dep't of Human Servs., Ark. App. , S.W.3d (November 17, 2004). Grounds for termination of parental rights must be proven by clear and convincing evidence. M.T. v. Arkansas Dep't of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). When the burden of proving a disputed fact is by "clear and convincing evidence," the question on appeal is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence was clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.

This case began on June 1, 2004, when appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody of A.F., B.F., and their younger half-brother, J.M. On the same day, the trial court entered an emergency custody order on the grounds that immediate removal of the children from the custody of their mother, Shannon Fry, was necessary to protect their health and safety. The emergency custody order scheduled a probable cause hearing for June 2, 2004.

At the June 2, 2004, hearing, DHS put on evidence that the children had made disclosures that their mother had been having sexual relations with various men in their presence. The girls disclosed that they had observed Ms. Fry and a boyfriend smoking marijuana or methamphetamine, and that after Ms. Fry smoked she would fail to supervise them or feed them dinner. The girls had further asserted that when they would turn on the VCR to watch their children's movies, they would instead find pornographic movies.

Linda Youngman testified that she had been a sponsor for Ms. Fry's recovery attempts through Narcotics Anonymous. Mrs. Youngman stated that she went to check on Ms. Fry and the children on May 8, 2004, and found the house to be filthy. At that time, Ms. Fry told Ms. Youngman that she had relapsed into drug abuse, and asked her if she would take the children. Mrs. Youngman agreed and cared for the children from then until the date of the hearing.

Ms. Fry testified on her own behalf and acknowledged that the girls had previously been molested by her second husband, to whom she is still married but who has gone to prison. She also related a history of methamphetamine use and a variety of criminal problems, including current drug charges. However, Ms. Fry denied the girls' accusations that she engaged in sex or ingested drugs in their presence.

Subsequent to the hearing, on June 16, 2004, the trial court entered an order finding probable cause that it is contrary to the children's best interest to be returned to the custody of their mother. The trial court ordered the children to remain in the temporary custody of Mrs. Youngman and her husband, and ordered DHS to develop an appropriate case plan. An adjudication/permanency planning hearing was scheduled for July 30, 2004.

Mr. Fry entered his first appearance in this case on July 28, 2004, when he filed a motion opposing termination of his parental rights. The motion was accompanied by an affidavit by his wife, Erin, who represented that they live in Lemon Grove, California, and have a one-year-old son. Erin asserted that she had a strong marriage with Mr. Fry, and that she was supportive of Mr. Fry's efforts to gain custody of his daughters. Erin's parents also submitted an affidavit stating that they are willing to be grandparents to A.F. and B.F. and lend support in any way they could. Mr. Fry's motion prayed for reunification services toward the goal of gaining custody of his daughters.

Mr. Fry appeared at the July 30, 2004, hearing, along with his wife and her parents. Mr. Fry was unrepresented by counsel, and the trial court informed him that he had a right to an attorney. During a brief recess, the trial court appointed an attorney to represent Mr. Fry, and the hearing resumed.

Shannon Fry testified at the hearing, and stated that she was living with a friend in Springdale. She recounted a history of previous problems, including a time in 2000 when she was arrested on drug charges and her parents took custody of her children. Ms. Fry further stated that the children were in the care of DHS in Benton County from October 2001 to October 2002. Ms. Fry stated that she continued to attend Narcotics Anonymous meetings and asserted that she was unable to care for the children at that time.

Ms. Fry testified that it had been more than eight years since Mr. Fry had seen his daughters. However, she did state that he had talked with them on the telephone from time to time, and paid sporadic child support.

Mr. Fry testified that he was first notified of this case during a telephone conversation with Mrs. Youngman on June 8, 2004. He indicated that since that time he has had frequent telephone conversations with A.F. and B.F.

Mr. Fry acknowledged that in 1995 he took the family car and left Ms. Fry and his daughters when B.F. was two weeks old, and has not seen them since then. He testified that he had no contact with his daughters from 1995 to 2000. Mr. Fry reinitiated contact with his daughters in 2000 by telephone, and acknowledged that since then he has not had much contact. Mr. Fry stated that he is about $30,000.00 behind in child support, and blamed the delinquency on drug dependency.

Mr. Fry stated that while he has had problems with drugs and alcohol in the past, he is currently undergoing drug treatment and has a stable family with his wife and son. Mr. Fry stated that they planned to move from Lemon Grove to San Jose, California, where they would be closer to extended family and might find a larger home. Mr. Fry admitted that he was convicted of possession of cocaine and heroin in October 2003, and was sentenced to an eighteen-month outpatient recovery program.

Mr. Fry testified that from his conversations with his daughters, he thinks his daughters want to live with him. He stated that he is willing and able to be an appropriate parent and loving father, and wants to work toward gaining custody.

Subsequent to the July 30, 2004, hearing, the trial court entered an order adjudicating the juveniles dependent/neglected on August 27, 2004. The August 27, 2004, order, also relieved DHS of reunification services and changed the goal of the case to termination of parental rights. Ten days earlier, on August 17, 2004, DHS filed a petition for termination of parental rights.

The termination hearing was held on November 3, 2004, and Mr. Fry failed to attend the hearing. DHS worker Ryan Foster testified that, despite being ordered by the trial court to contact DHS and provide his new address, Mr. Fry had failed to make any contact with DHS since the July 30, 2004, hearing. DHS worker Magevney Strickland testified that because there had been no contact with Mr. Fry, she had no knowledge of whether Mr. Fry maintained stable housing and employment as ordered by the trial court, or whether or not he had been using illegal drugs. Ms. Strickland believed that the children were adoptable, and thought it was in their best interest that parental rights be terminated.

On November 22, 2004, the trial court entered an order terminating the parental rights of Mr. Fry, Shannon Fry, and the father of J.M. With regard to Mr. Fry, the trial court found that he had abandoned his daughters and that DHS proved by clear and convincing evidence that termination was in the best interest of the children.

Mr. Fry's first argument on appeal is that the trial court erred in finding that there was clear and convincing evidence that termination of his parental rights was in the best interest of the children. Arkansas Code Annotated Section 9-27-341(b)(3) (Supp. 2003) provides, in pertinent part:

An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

(A) That it is in the best interest of the juvenile, including consideration of the following factors:

(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and

(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents; and

(B) Of one (1) or more of the following grounds:

. . . .

(iv) A parent has abandoned the juvenile

Mr. Fry not only contends that termination was not in A.F. and B.F.'s best interest under this point, but challenges the trial court's finding that he abandoned them.

In his argument, Mr. Fry acknowledges that he had problems in the past with drug use, but maintains that he is in recovery and can now provide a stable home for his children. He further asserts that he has made frequent telephone contact with his children after this case began, and was paying child support in 2004. He argues that the evidence presented established that he did not abandon his children, and that it would be in their best interest to give him an opportunity at reunification.

We hold that the trial court did not clearly err in finding that Mr. Fry abandoned his children and that termination of his parental rights was in their best interest. Arkansas Code Annotated section 9-27-303(2) (Supp. 2003) provides:

"Abandonment" means 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 failure to support or maintain regular contact with the juvenile without just cause or an articulated intent to forego parental responsibility[.]

While Mr. Fry might have made telephone contact and paid some support during the pendency of these proceedings, there was abundant evidence that he had abandoned his children under the definition of the statute. By his own admission, he made no contact at all between 1995 and 2000, and beyond that engaged in infrequent telephone communications. Mr. Fry has not seen his children since he left them eight years ago, and is $30,000.00 behind on child support. Mr. Fry failed to maintain any significant contact or pay significant support over a period of eight years, and made no attempt to change these circumstances until being notified of potential termination proceedings. This constituted abandonment of his children.

Much of the evidence of abandonment is the same evidence that supports the trial court's finding that termination was in the children's best interest. Mr. Fry demonstrated apathy as to the well-being of his children over a long period of time. Moreover, he admitted to a history of drug dependency and at the time of the adjudication hearing was on probation for possessing cocaine and heroin. Mr. Fry made no contact with DHS subsequent to the adjudication hearing as ordered by the trial court, and failed to appear at the termination hearing, and thus the trial court could not determine anything about his current living status or efforts to make reunification a viable option. Under these circumstances, we affirm the findings of the trial court that support termination of Mr. Fry's parental rights.

Also under his first point on appeal, Mr. Fry contends that the trial court erred in failing to require DHS to include him in the case plan and apprise him of what actions he needed to take to achieve reunification with his children. Mr. Fry cites Ark. Code Ann. § 9-27-402 (Repl. 2002), which requires DHS to develop a case plan and consult with the juvenile's parents about the plan. Mr. Fry submits that he was willing to comply with an appropriate plan toward reunification, and that reversal is required because none was offered.

Mr. Fry fails to develop any legal argument as to why the absence of a case plan entitles him to relief on appeal. The basis for termination was his abandonment of his children. We know of no authority requiring reversal of a termination order on the sole basis that a case plan was not developed. As Mr. Fry has not supported this assignment of error with convincing argument or authority, or demonstrated how he was prejudiced, we reject the argument. See Jones v. Arkansas Dep't of Human Servs., Ark. , S.W.3d (March 24, 2005).

Mr. Fry next argues that reversible error was committed when he was denied notice and an opportunity to be heard in the proceedings. Arkansas Code Annotated section 9-27-314(b)(1) (Supp. 2003) provides that an emergency custody order shall include, "Notice to the juvenile's parents, custodian, or guardian of the right to a hearing and that a hearing will be held within five (5) business days of the issuance of the ex parte order." Arkansas Code Annotated § 9-27-315(a)(1)(A) (Supp. 2003) provides that a probable cause hearing shall be held within five business days of issuance of the ex parte order. Pursuant to Ark. Code Ann. § 9-27-311(c) (Repl. 2002), parents of the juveniles are required to be made defendants and served when a petition for ex parte emergency relief is filed. In this case, Mr. Fry was named as a defendant, but argues that because he did not receive notice of the ex parte emergency order or notice of the June 2, 2004, probable cause hearing, he was not afforded an opportunity to be present or allowed to be heard in contravention of the statutes.

Mr. Fry further argues that the lack of notice denied him his constitutional due process rights as guaranteed by the United States and Arkansas Constitutions. He cites Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002), where the supreme court held that due process requires, at a minimum, notice reasonably calculated to afford a natural parent the opportunity to be heard prior to parental rights being terminated.

We hold that Mr. Fry's lack of notice of the June 2, 2004, probable cause hearing does not warrant reversal. The hearing was limited to whether there was probable cause that the emergency conditions that necessitated removal of the children from Ms. Fry's home continued, and the trial court made such a finding. Mr. Fry admitted in his testimony that he became aware of the DHS proceedings on June 8, 2004, and he filed a written objection to terminating his parental rights. Then he attended the July 30, 2004, adjudication hearing, was afforded counsel, and provided testimony on his behalf. After that, he was ordered to maintain contact with DHS but failed to do so. Mr. Fry was given notice by certified mail of the termination petition and termination hearing, and he failed to appear. He was given ample opportunity to offer proof contesting the issues relevant to the DHS termination petition, i.e., whether he had abandoned his children and whether termination was in their best interest. Thus, the lack of notice of the original hearing caused him no prejudice. While Mr. Fry is correct in stating that due process requires an opportunity to be heard before parental rights are terminated, there was no constitutional due process violation here because Mr. Fry was given a meaningful opportunity to contest the petition for termination.

Mr. Fry's remaining argument is that the trial court erred when it failed to compel the children's attorney ad litem to answer his interrogatories. Mr. Fry propounded a number of interrogatories, which the attorney ad litem refused to answer on the basis that they were not stated in terms that the children could understand. The trial court denied Mr. Fry's motion to compel, and he now argues that this hindered his defense because he was not made aware of any possible exculpatory information. Supreme Court Administrative Order 15 section 2(d) provides, "An attorney ad litem shall explain the court proceedings and the role of the ad litem in terms that the child can understand," and under this provision Mr. Fry asserts the ad litem was required to consult the children and answer the interrogatories.

It is clear that, even assuming it was the ad litem's responsibility to answer the interrogatories, no prejudice resulted in her failure to do so. While the trial court did not compel the ad litem to answer the questions, it nonetheless imposed the sanction that the ad litem would not be allowed to call witnesses or introduce exhibits at the termination hearing. Very little evidence was adduced at the termination hearing outside of testimony that Mr. Fry failed to remain in contact with DHS, and the vast majority of the testimony resulting in termination of his rights was elicited at the July 30, 2004, hearing, which was before the interrogatories were propounded. Mr. Fry offers no suggestion as to what possible "exculpatory" evidence could have been in possession of the attorney ad litem, and he has failed to demonstrate any prejudice.

We have reviewed each of the arguments raised by Mr. Fry in this appeal, and conclude that none are grounds for reversal. Consequently, we affirm the trial court's order terminating his parental rights.

Affirmed.

Neal and Roaf, JJ., agree.