Rolinda Kight v. Arkansas Department of Human Services

ca05-522

Rolinda KIGHT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES

CA05-522

Court of Appeals of Arkansas

Opinion delivered March 8, 2006

1. Appeal & error - under the evidence presented at the termination hearing, it was not reversible error to terminate appellant's parental rights without ordering further reunification services.- The trial court did not commit reversible error in terminating appellant's parental rights without ordering further reunification services to her at that time where the children had been out of the home for approximately three years and could not be returned to the home in a reasonable amount of time, where the problem that caused the removal of appellant's children involved her drug usage both prior to and during the pendency of the earlier proceedings, where subsequent to remand of this case, appellant denied any drug use, but tested positive for THC when tested at the time of her first review hearing after the remand, and she refused all subsequent drug tests, and the trial court found appellant not credible after she lied under oath about the circumstances of her ankle injury.

2. Constitutional law - due process - appellant's due process rights were not violated where appellant was given an opportunity to be heard at the termination hearing.- Where appellant did not suggest that she did not have noticeof the hearing to terminate her parental rights, but only argued that she did not have an opportunity to be heard regarding the continuation of reunification services, the trial court did not deprive her of her parental rights without due process because she was given the opportunity to voice her objection to the fact that the trial court failed to order a continuation of reunification services and that those services were not provided to her; moreover, appellant cited no convincing authority for her argument that she was denied due process because there was no separate hearing held specifically to address the fact that the trial court did not order the continuation of reunification services as mandated by the appellate court.

3. Constitutional law - appellant's due process rights were not violated - the trial court did not impose a standard of conduct on appellant.- Where appellant argued that the trial court applied a standard of conduct to her during the pendency of her appeal without giving any notice of the standard, the trial court did not deprive appellant of her parental rights without due process because there was no evidence that the trial court imposed a particular standard on appellant, and appellant's employment history and stability and her ability to maintain stable housing were proper factors for the trial court to consider in the termination hearing.

Appeal from Faulkner County Circuit Court, Juvenile Division; Linda Collier, Judge; affirmed.

Glen Hoggard, for appellant.

Gray Allen Turner, for appellee.

Jennifer Hill Kendrick, Attorney Ad Litem, for minor children.

Andree Layton Roaf, Judge. Appellant Rolinda Kight appeals from the Faulkner County Circuit Court's order terminating her parental rights to her two minor children, A.W. and L.M. This is the second time this case has been before this court. In Kight v. Ark. Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (June 30, 2004) (Kight I), this court reversed and remanded this case and directed that reunification services be continued. Appellee Arkansas Department of Human Services (ADHS) filed another petition to terminate Kight's parental rights, which the trial court granted. For reversal, Kight argues that the trial court erred in terminating her parental rights (1) by not following the mandate of this court from the prior appeal and (2) by violating her due-process rights. We affirm.

After reversal of the prior termination order, ADHS sought rehearing and also sought review by the supreme court. ADHS learned that the supreme court had denied review on September 24, 2004. At a review hearing on November 23, 2004, the trial court inquired into the status of the case. ADHS informed the court that the only order affected by this court's reversal was the order that terminated Kight's parental rights and that all other prior orders remained in effect, including the order for no reunification services. At this hearing, ADHS also announced its intention to file a second petition to terminate Kight's parental rights, and it did so the same day. The trial court stated that it would have a hearing on January 18,2005, to determine whether there should be reunification services offered in this case. This hearing was subsequently continued until February 3, 2005. The February 3, 2005, hearing was thus for the purpose of deciding whether to terminate Kight's parental rights. At this hearing, Kight objected to the termination petition, arguing that reunification services had not been offered to her in compliance with this court's mandate.

Linda Wallace, a social worker assistant, testified at the hearing that the first meeting she had with Kight since this case had been re-opened was at McDonald's, Kight's place of employment at the time. Wallace drove Kight home to take a drug test that came back negative. Kight subsequently refused several drug tests, telling Wallace that her attorney had told her to refuse any drug tests administered by ADHS because of their unreliability. Wallace saw Raymond Morgan, a convicted drug dealer, at Kight's home on two occasions in the early morning hours, although Wallace never saw any evidence that he was living with Kight. Wallace, on at least one occasion, went to Kight's home at 4:50 a.m. to administer a drug test. According to Wallace, that was a good way to "catch some people" at home. Wallace found out from a neighbor that Kight had changed jobs and was working for Burger King. Wallace testified that sometimes she would have trouble getting in touch with Kight. Wallace had contact with Kight on at least nine different occasions between November 3, 2004, and January 26, 2005. She testified that some of these contacts were for drug tests and some of them were "just to see how [Kight] was doing." Wallace found out through Kight'sneighbor and then from Kight, that Kight had found a job through a temporary agency working at the Peabody Hotel.

According to Wallace, there were no recent drug problems or problems with Kight's environment. The only problem Wallace identified was that Kight had changed jobs frequently. She had had three different jobs and two residences over the past three months. Wallace testified that she thought Kight was trying and that she was doing a good job. She also stated that she had no complaints about Kight.

There was testimony at the hearing that A.W. and L.M. were thriving in the care of the foster parents. They had been in the same foster home for at least two years and five months.

Laura Rogers, a family services worker, testified that she was concerned about Kight's association with Raymond Morgan. She stated that Kight had tested positive for THC at the time of the first review hearing in November 2004. Kight had refused all other drug tests ADHS had attempted to do since October 2004, explaining to Rogers that her former attorney had told her not to submit to any drug tests administered by ADHS because they resulted in false positives. Rogers stated that she could not "really tell [Kight] what reunification services [ADHS] could even offer since the goal of the case [was still adoption]." Rogers testified that, during her meetings with Kight, Kight never asked about the welfare of her children. Kight did not have a car, and Rogers drove her to one hearing, and Wallace droveher to another hearing. According to Rogers, the trial court did not allow visitation to Kight, and Kight and her attorney had not asked for any service except transportation. Rogers testified that, at the time of the hearing, A.W. had been in foster care for two years and five months and that L.M. had been in foster care for a little over two years. According to Rogers, offering additional services to Kight would not result in a successful reunification. As far as the services that were offered to her after her case was remanded, Rogers stated that those services began in mid-October with home visits and drug testing.

Kight testified about her employment history since July 2003. She worked at American Plastics until September 2003, when she had to resign because she lacked transportation. She then went to work for Jackson Cookie Company. When this company went out of business early in 2004, she began working for the Peabody Hotel, where she worked part-time from March 2003 in addition to working at McDonald's and Burger King. The Peabody had hired her for full-time employment, while she worked banquets for different employers and did housekeeping for other hotels on the weekends.

Kight testified about a short period of unemployment around October 2003 when she fell down some stairs and broke her ankle. However, after being confronted by ADHS with faxed hospital records, Kight admitted on cross-examination that she had not broken her ankle falling down stairs but that she had jumped off the top of a moving vehicle when she had tried to prevent a male guest from leaving her apartment.

In July 2003, Kight lived at Chance Sobriety. When she completed that program, she lived with her uncle, different friends, and with her mother. In November 2003, she lived in her own apartment, with an apartment mate. She began living in an apartment by herself in August 2004, where she stayed until she moved into a house in North Little Rock. She testified that she allowed Raymond Morgan to help her move some heavy furniture into the house because she could not move it by herself. According to Kight, she had seen Morgan approximately five times since July 2003 but had not been romantically involved with him since June 2003. She testified that she could not explain the one positive drug screen in November 2004 and that she had been clean and sober for two years. ADHS was successful in preventing Kight from introducing the negative results of a hair-follicle drug test she had had done at her own expense in January 2005 after the positive test occurred in November 2004.

After hearing the testimony, the trial court terminated Kight's parental rights, finding that it was in the children's best interests; that there was little likelihood that services to the family would result in successful reunification; that the children had been adjudicated dependent-neglected, had been out of the home for more than twelve months, and that despite a meaningful effort by ADHS to rehabilitate the mother and correct the conditions that caused removal, the mother had failed to remedy the conditions.

The standard of review in termination-of-parental rights cases is well-settled. InJohnson v. Arkansas Department of Human Services, 78 Ark. App. 112, 119, 82 S.W.3d 183, 187 (2002), the court held: When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence, and in reviewing the trial court's evaluation of the evidence, we will not reverse unless the court's finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous questions, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. 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.

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 harmcaused by continuing contact with the parent. In addition to determining the best interests of the child, the court must find clear and convincing evidence that the circumstances exist that, according to the statute, justify terminating parental rights. One such set of circumstances that may support the termination of parental rights is that the child has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. It is not necessary that the twelve-month period out of home be consecutive. (Citations omitted.)

Arkansas Code Annotated section 9-27-341 (Supp. 2003) states:

(b)(1)(A) The circuit court may consider a petition to terminate parental rights if the court finds that there is an appropriate permanency placement plan for the juvenile.

. . . .

(3) 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:

(i)(a) That a 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.

. . . .

(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent return of the juvenile to the custody of the parent.

For her first point on appeal, Kight argues that the trial court erred by not following this court's mandate to continue reunification services. A lower court is bound to follow the mandate of a superior court, and jurisdiction conferred on the trial court upon remand is bounded by the mandate and decision of the superior court. City of Dover v. A.G. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000). When an appellate court remands a case with specific instructions, those instructions must be followed. Id. A lower court is bound to follow both the letter and spirit of the opinion and mandate. Id. The trial court should look beyond the words of reversal and look to the effect of the opinion in proceeding upon remand. Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001) (quoting Kneeland v. Am. Loan & Trust Co., 138 U.S. 509 (1891)).

Kight asserts that the trial court did not follow the remand's specific instructions. This court stated in its opinion, "We reverse and remand this case with instructions to the trial court to continue reunification services." Kight I, supra. However, ADHS took the position that the no-reunification order was still in effect because this court only reversed the termination order. Kight argues that it is clear from the record that ADHS never intended to offer meaningful reunification services. We must agree with Kight. When the trial court inquired as to ADHS's plan for the case at the November 23, 2004 review hearing, ADHS stated that it anticipated filing another termination petition, and it did so the same day. This occurred only two months after our supreme court denied ADHS's petition for review andonly six days after counsel had been appointed to Kight in the present case.

Moreover, the trial court specifically forbade visitation between Kight and her children and never conducted a separate hearing to determine whether reunification should have still been the goal of the case. Instead, it held a termination hearing on February 3, 2005. The court never required ADHS to continue reunification services, and, in fact, ordered that Kight not visit her children.

ADHS again contends on appeal that it did provide reunification services to Kight. This argument contradicts its assertions to the trial court at the November 2004 hearing. At the February 2005 termination hearing, however, ADHS took the position that reunification services had been offered from the time the case came back from the supreme court, which was September 24, 2004. ADHS characterized the home visits, drug test, ten attempted drug tests, and transportation to the two hearings as reunification services. ADHS clearly did not continue reunification services, despite its argument to the contrary. This court found in Kight I, supra, that Kight was committed to remaining clean and sober and that she was not given a reasonable time to demonstrate that the children could safely be returned to her home.

Nevertheless, it must be noted that Kight does not challenge the sufficiency of the evidence to terminate her parental rights or the finding that it was in her children's best interests to terminate her rights. She only argues that the trial court erred by not followingthis court's mandate and that the trial court's decision violated her due-process rights. The children in this case have now been out of the home since January 8, 2003, which means that they have been out of the home for approximately three years, and L.M. has been out of the home since she was born. Although the delay in this case is primarily attributable to ADHS and the trial court in erroneously terminating Kight's rights in the first place, from the children's perspective, they clearly cannot now be returned to the home in a reasonable amount of time. See Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2003). Moreover, it is significant that the problem that caused the removal of Kight's children involved her drug usage both prior to and during the pendency of the earlier proceedings. Kight had tested positive for cocaine and THC, and at the time she gave birth to L.M. in January 2003, both she and L.M. testified positive for cocaine. Subsequent to remand of this case, although she denied any drug use, Kight tested positive for THC when tested at the time of her first review hearing after remand, and she refused all subsequent drug tests. The trial court additionally found Kight not credible after she lied under oath about the circumstances of her ankle injury. We remanded this case with the specific instruction to continue reunification services. It is very clear that ADHS did not follow the spirit or letter of this court's opinion or its mandate in offering what it now deems the "reunification services" of drug tests, two rides to hearings, and investigatory home visits. Kight was employed full-time and had her own home that she had furnished at the time of the termination hearing, so it is unclear whatadditional services she would have been seeking, other than visitation with the children. However, we cannot say that, under the evidence presented at the termination hearing, it was reversible error to terminate Kight's rights without ordering further services to her at that time, despite the outrageous and contemptuous conduct of ADHS in this case.

Kight also argues that the trial court's decision violated the due-process rights provided by the Fourteenth Amendment of the United States Constitution by (1) denying her a meaningful opportunity to be heard on the issue of the mandate's requirement of continued reunification services and (2) requiring her to observe a standard of conduct during the pendency of her appeal that is without precedent or statutory authority. ADHS argues that this argument is not preserved, because Kight failed to raise it at the trial level. Kight's attorney, however, did ask the trial court to strike all testimony in the record regarding Kight's behavior from July 15, 2003, the day her rights were first terminated, until November 23, 2004, the date of the first review hearing after remand, because Kight had no notice that she was to comply with any code of conduct during this period. Kight's attorney argued that this violated her due-process rights. The trial court overruled Kight's motion to strike the record.

Kight argues also that no meaningful hearing was provided to consider the issue of reunification services. In Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002), the supreme court held that due process requires, at a minimum, notice reasonably calculated toafford a natural parent the opportunity to be heard prior to parental rights being terminated. Here, Kight does not suggest that she did not have notice of the hearing; she only argues that she did not have an opportunity to be heard regarding the continuation of reunification services. At the termination hearing, however, Kight was given the opportunity to voice her objection to the fact that the trial court failed to order a continuation of reunification services and that those services were not provided to her. Moreover, Kight cites no convincing authority for her argument that she was denied due process because there was no separate hearing held specifically to address the fact that the trial court did not order the continuation of reunification services as mandated by this court.

Kight further asserts that the trial court applied a standard of conduct to her without giving her any notice of the standard. Kight's parental rights were suspended from July 15, 2003, when the first termination order was entered, until this court reversed the termination order in June 2004. Kight argues that even though she possessed no parental rights during this time, the trial court gave much weight to her conduct during this period. It is important to note, however, that Kight was aware that her case was in the appeal process. There is no evidence that the trial court imposed a particular standard of conduct on Kight. Kight's employment history and stability and her ability to maintain stable housing were proper factors for the trial court to consider in the termination hearing. Kight was given the opportunity to be heard at this hearing. We therefore cannot say that the trial court deprivedKight of her parental rights without due process.

In sum, these children have now been out of Kight's care and custody and with a foster family for three years. L.M. has been with the foster family since she was released from the hospital after her birth. Neither child has seen Kight in over two years. The supreme court recently noted in Linker-Flores v. DHS, ____ Ark. ____ , ____ S.W.3d ____ (Nov. 16, 2005), involving a case that had gone on for over four years:

Such a delay goes against the clear legislative intent of the termination-of-parental-rights statute, which specifically states:

The intent of this section is to provide permanency in a juvenile's life in all instances where the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile's perspective. Ark. Code Ann. § 9-27-341(a)(3).

Unfortunately, the delay in this case was in large measure caused by ADHS. Nevertheless, under the circumstances and evidence presented at the termination hearing, we cannot say the

trial court erred in terminating Kight's parental rights based on either of the arguments she has raised in this appeal.

Affirmed.

Glover, J., agrees.

Pittman,C.J., concurs.

John Mauzy Pittman, Chief Judge, concurring. I agree that the trial court's decision should be affirmed. However, I cannot agree with the majority's statement that the termination of parental rights must be affirmed because the trial court "erroneously [terminated] Kight's rights in the first place" and therefore caused irremediable delay. It is true that matters decided on our prior appeal are the law of the case and govern our actions on the present appeal to the extent that we would be bound by them even if we were now inclined to say that we were wrong in those decisions. Lunsford v. Rich Mountain Electric Coop, 38 Ark. App. 188, 832 S.W.2d 291 (1992). However, if blame is to be placed on a court for the delay caused in this case, we should place a good deal of it on ourselves. Our prior opinion in this case was largely based on Trout v. Arkansas Department of Human Services, 84 Ark. App. 446, 146 S.W.3d 895 (2004), where we held that the trial court erred by disregarding appellant's eleventh-hour progress made toward reunification. That case, however, was reversed by the Arkansas Supreme Court in an opinion that expressly held that the trial court was not bound to attach significant weight to such tardy improvements, and which restated the fundamental principle that we give great deference to the superior position of the trial court, through observation and extended experience with the parties, to determine whether last-minute efforts are sincere, or instead merely a ruse to prevent imminent termination of parental rights. Trout v. Arkansas Department of Human Services, ___Ark.___, ___ S.W.3d ___ (November 4, 2004).

In our prior opinion in this case, we erred by giving more weight to our hopes regarding appellant's sincerity than we did to the trial judge's experience and ability to see, hear, and judge first-hand whether or not her efforts to maintain sobriety were made in good faith. Insofar as we ourselves erred in our prior opinion by eschewing the principles enunciated by the supreme court in Trout, I believe that we bear a measure of responsibility for the resulting delay.

Nor do I agree with the majority's statement that the conduct of the Arkansas Department of Human Services in this case following remand was "outrageous and contemptuous." It is true that the ADHS attorneys had no reasonable basis for arguing that our mandate did not require ADHS to provide additional reunification services. Nevertheless, the fact remains that ADHS agents in the field did attempt to provide reunification services by re-instituting drug testing of appellant as a prerequisite to visitation. Insofar as the removal in this case was occasioned by appellant's inability to provide proper parenting because of her illegal drug use, the resumption of drug tests was the essential first step on the road to reunification. Appellant, by her refusal to submit to these tests, precluded any meaningful attempts at reunification. I submit that appellant, too, has responsibilities as well as rights, and that her outright refusal to cooperate with the additional reunification efforts ordered by this court in our prior opinion was far and away the most "outrageous andcontemptuous" behavior exhibited by any of the parties to this case.

I concur in the result reached by the majority.