Broderick Pierce and Rhonda Pierce v. Arkansas Department of Human Services

ca05-487

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

BRODERICK PIERCE and RHONDA PIERCE

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA05-487

February 1, 2006

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[J-2003-221]

HON. KENNETH DAVID COKER,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

On January 27, 2005, the Pope County Circuit Court terminated the parental rights of Broderick and Rhonda Pierce to their three children: twins J.P. and W.P., who were born on June 23, 2000, and C.P., who was born on June 19, 1998. Appellants argue that there was insufficient evidence to support the termination. We affirm.

The Arkansas Department of Human Services (DHS) filed a petition for emergency custody on August 7, 2003, after it received a report of inadequate supervision regarding the three children and allegations that the children had various bruises on their bodies. According to an affidavit filed by family service worker specialist Christy Jackson, C.P. said that his sister had sustained marks around her wrists from being tied up with a boot string by their mother. C.P. also said that the twins were tied up when they were bad. Bruising on W.P.'s cheek appeared to have been caused by a human bite mark. The twins were wearing dirty clothes, smelled unclean, and had dirty and matted hair. Another case worker, Julia Baker, said that Rhonda picked up her children from daycare on August 4, 2003, and she saw Rhonda grab her daughter's hair and shake her so hard that the child's entire body moved. Baker heard Rhonda say to the girl, "You stupid little bitch, you are not gonna eat again tonight for that!" When case workers, Christy Jackson and Kelly Braton, went to appellants' home, Broderick stated that the school was making false reports, and Rhonda explained that W.P. put rubber bands on her arms and wrists, which resulted in marks. The case workers saw rotten and molded food on dishes that were piled everywhere. There were dirty clothes, trash, and soiled diapers on the floor throughout the house. The children slept on stained mattresses with no linens. The case workers noticed that the children's bedroom had a slide lock on the outside. Although Rhonda said the lock was there when they moved in a week and a half earlier, the landlord denied that there was a lock on the door when he rented the trailer to them.

Included in Jackson's affidavit was information that on November 8, 2001, DHS had received allegations of environmental neglect, inadequate shelter, and medical neglect. Following an investigation, the allegations were found to be true. The twins had been kept in strollers throughout the day and then slept in dirty, urine-soaked car seats. Despite J.P.'s having asthma, appellants' home was filthy in that it had dog feces and urine present. W.P. had a severe rash that covered her buttocks, back, and inner thighs due to sitting in a urine-soaked car seat. When appellants were told that their children were being taken away, the case worker asked the parents about the children's medical needs. Rhonda stated that J.P. suffered from asthma and used an inhaler twice a day. Rhonda was unable, however, to locate the child's medicine and suggested that the school had some. Officials at the school informed the case workers that J.P. was out of the medicine and that Rhonda had not refilled the prescription.

An order for emergency custody was entered on August 7, 2003, and the children were placed in DHS's custody. On August 11, 2003, the trial court found that there was probable cause to support the allegations that the children were dependent-neglected and that an emergency situation necessitated the removal of the children. The trial court authorized DHS to arrange supervised visitation and ordered DHS to develop an appropriate case plan. The trial court further ordered appellants to submit to psychological evaluations and follow the recommendations. They were also ordered to accept homemaking services, submit to random drug tests, participate in parenting classes, and sign medical releases.

The children were adjudicated dependent-neglected on October 23, 2003, and the trial court ordered that the children remain in DHS's custody and established that reunification was the goal of the case. The parents were ordered to complete parenting classes, submit to psychological evaluations and comply with the recommendations, participate in Intensive Family Services, submit to random drug testing, and maintain suitable housing. Rhonda was ordered to make reasonable efforts to obtain and maintain gainful employment.

Review hearings were held on January 2, 2004, March 26, 2004, and June 18, 2004, wherein the goal of the case continued to be reunification. Following a permanency planning hearing held on September 24, 2004, the goal of the case was changed from reunification to termination of parental rights. On October 15, 2004, DHS filed a petition for termination of parental rights, and alleged the following grounds pursuant to Ark. Code Ann. § 9-27-341:

a. The minor juveniles have been adjudged to be dependent-neglected juveniles and currently reside in the care and custody of the Arkansas Department of Human Services pursuant to order of the Pope County Circuit Court, Juvenile Division. The minor juveniles have continued out of the home of the parents for twelve months and, despite a meaningful effort by the Arkansas Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parents.

b. That subsequent to the filing of the original Petition for Dependency/Neglect, other factors or issues have arisen which demonstrate return of the juveniles to the parents is contrary to the juveniles' health, safety or welfare. Despite the offer of appropriate family services, the parents have manifested incapacity or indifference to remedy the subsequent issues or factors or rehabilitate their circumstances which prevent the return of the juveniles to the parents.

Following a hearing held on January 12, 2005, the trial court granted DHS's petition and found that it had been proven by clear and convincing evidence that it was contrary to the best interests, health and safety, and welfare of the children to return them to the care and custody of their parents and that DHS had proven that it was in the children's best interests to terminate appellants' parental rights. The trial court considered both the likelihood that each of the juveniles would be adopted if the termination petition were granted and the potential harm to the health and safety of the juveniles caused by continuing contact with the parents.

The trial court made the following findings of fact:

1. The current foster father testified that he and his wife intended to adopt each of the children.

2. Despite the truth of the allegations that led to the children's being taken into custody by DHS on August 5, 2003, the parents continued to deny the allegations. The trial court found that appellants' testimony was not credible on those issues.

3. Several mental health professionals advised that no mental health treatment could adequately address the issues unless the parents admitted that there was a problem to be addressed.

4. Rhonda continued to show instability in incidents where she lost control of her emotions at two visitations and angrily confronted DHS employees in the presence of the children.

5. The parents had lived in five different residences since August 2003. The parents had lived in their current residence for only two or three months. The current residence has one bedroom, and the parents did not get beds for the children until January 10, 2005, around the time of the termination hearings. The bedding intended for both parents and three children consisted of a day-bed and futon, which were not appropriate sleeping accommodations. The children had their original beds until the parents simply left them at a prior residence.

6. The parents are financially unstable. The father collects social security disability and is unable to work. The mother did not obtain employment until after the children had been in DHS's custody for seven months. She has had at least five different jobs since March 2004 and prior to that had been dependent upon the juveniles' social security checks.

7. The parents do not have gas at their new residence and only recently obtained electrical service to their home. The children had to go to their grandmother's house to take baths.

8. The parents have not paid any child support as ordered since the mother worked at Wendy's restaurant approximately four months ago.

9. One of the children has asthma and is required to use an inhaler. The mother could not find the child's medicine at the time the children were taken into DHS's custody, and the mother continues to smoke cigarettes.

10. Whereas the children had been described as unclean, dressed inappropriately, having dirty hair, always hungry, often sick, and having a bad odor, once the children were removed from the parents' custody and placed in foster care, the children were described as clean, happy, interested with other children, more loving, making more eye contact, pickier eaters, and having no bad odors.

11. The children were apparently not being adequately fed by the parents, and they had stopped complaining of hunger after being placed in foster care.

12. A CASA volunteer noted that there were no cooking utensils at the parents' new house and that the mother was attempting to cook a chicken in a toaster oven. As recently as September 2004, the parents asked DHS to purchase food to bring to the children at visitation, which leads to the conclusion that the parents could not afford food.

In its order terminating parental rights, the trial court concluded that, despite DHS's efforts to reunite the family, appellants' parental rights should be terminated. In addition, DHS was deemed to have an appropriate placement plan, namely, adoption, for each of the juveniles.

Appellants argue on appeal that there was insufficient evidence to support the trial court's decision to terminate their parental rights. In cases involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. J.T. v. Ark. Dep't Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). This is because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wade v. Ark. Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Thus, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. J.T., supra.

Arkansas Code Annotated section 9-27-341(b)(3) requires that an order terminating parental rights be based upon clear and convincing evidence. Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). It is well settled that when the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Id. A finding is clearly erroneous when, although there 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. Id.

In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Ullom v. Ark. Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). 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. Id. Where there are inconsistencies in the testimony presented at a termination hearing, the resolution of those inconsistencies is best left to the trial judge, who heard and observed the witnesses first-hand. Dinkins, supra.

According to appellants, they moved several times in order to better their living conditions, and their apartment was described as small but adequate and clean. Appellants state that they attempted to take responsibility for their actions. They also argue that they complied with the case plan in that they went to parenting classes, attended counseling, and kept close ties with their children by not missing visitations. They maintain that they had made substantial progress toward fully complying with the court's orders and the case plan and that there was no evidence to show that future progress would not be forthcoming.

We cannot agree that the evidence was insufficient to warrant the termination of appellants' parental rights. Although appellants assert that they attempted to take responsibility for their actions, they do not elaborate on that assertion. More importantly, credible evidence suggested otherwise. While appellants may have partially complied with the case plan, they failed to comply in several respects, including but not limited to: (1) they failed to obtain appropriate and stable housing; (2) Rhonda failed to maintain gainful employment; (3) they failed to complete counseling and continually refused to address the abuse and neglect that led to their children's being placed in DHS custody. See Chase v. Ark. Dep't of Human Servs., 86 Ark. App. 237, ___ S.W.3d ___ (May 19, 2004) (terminating parental rights even though there was partial compliance with the case plan). As for their potential future progress, the supreme court in Camarillo-Cox v. Arkansas Department of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Jan. 20, 2005), held that "evidence that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and remedy the situation that caused the children to be removed in the first place." Appellants had ample time to fully comply with the court's orders and the case plan. We cannot say that the trial court clearly erred in terminating appellants' parental rights and therefore affirm its decision.

Affirmed.

Bird and Vaught, JJ., agree.