Anjeanete Pfeiffer v. Arkansas Department of Human Services

ca05-866

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ANJEANETE PFEIFFER

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA05-866

FEBRUARY 8, 2006

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT,

[NO. J04-900-3],

HON. STACEY A. ZIMMERMAN,

JUDGE

AFFIRMED

Sam Bird, Judge

In an order of April 18, 2005, the Washington County Circuit Court terminated the parental rights of appellant Anjeanete Pfeiffer with regard to M.P., her daughter and oldest child. On appeal Pfeiffer challenges the sufficiency of the evidence to support the trial court's finding that she subjected M.P. to aggravated circumstances warranting the termination of parental rights. She contends that the State did not prove by clear and convincing evidence (1) that she subjected M.P. to extreme or repeated cruelty, or (2) that it was unlikely that services to the family would result in successful reunification. We affirm.

On October 18, 2004, Pfeiffer's six-and-a half-month-old son, I.Z., was transported to Arkansas Children's Hospital with a fractured skull. On October 19, 2004, responding to a request by police, the Arkansas Department of Human Services (DHS) performed a health and safety risk assessment of two-year-old M.P. in the home where Pfeiffer lived with the children and her boyfriend, Adrian Cornejo.1 The couple did not take responsibility for the injury, and DHS was unable to determine who was at fault. Believing the children to be in imminent danger of serious bodily injury, DHS exercised a seventy-two-hour hold on them.

I.Z. died in the hospital on October 22, 2004, when his mechanical ventilator was removed. Pfeiffer was arrested the following day and was charged with domestic abuse of a minor. Cornejo initially was charged with domestic abuse of a minor and later was charged with capital murder. Charges against Pfeiffer were later withdrawn, but Cornejo remained in custody after arrest and was also under an INS hold regarding status as an illegal alien.

At a probable cause hearing on October 29, 2004, the trial court found probable cause to continue custody of M.P. in DHS. On December 2, 2004, the court conducted a combined adjudication and "no reunification services" hearing. The court's resulting written order of December 21, 2004, includes the following:

Dr. Green testified that baby [I.Z.], 6 months old, was admitted to Children's Hospital on 10/18/04 with the following injuries: multiple skull fractures, extensive swelling to brain with infarction on both sides of brain, blood in and around brain, with macular folding_all of which are consistent with "shaken baby" syndrome. The macular folding is extremely significant evidence of violent shaking. These injuries are not consistent with any accidental injuries, the doctor testified. The injuries caused the death of [I.Z.]--baby [I.Z.] was pronounced Brain Dead on 10/22/04.

Dr. Green testified that mother gave at least two different explanations of what caused [I.Z.'s] injuries--these explanations were not consistent with the child's injuries.

Mother testified that she lied to police and investigators. Mother testified that Adrian "every week, he abused me," but that she went ahead and left [I.Z. and M.P.] with Adrian. Also, she testified Adrian abused her in front of the children. Then, after the baby "fell out of car seat" she didn't take him to doctor then, and left children with Adrian.

The trial court concluded that M.P. was dependent-neglected and found that Pfeiffer had subjected the child to aggravated circumstances due to extreme and repeated cruelty. A termination of parental rights hearing was scheduled for February 16, 2005.

The hearing on termination of parental rights was conducted on February 16 and March 16, 2005. At its conclusion, the trial court granted the petition for termination. The written order of April 18, 2005, reads in part:

5. The Court finds it to be contrary to [M.P.'s] best interests, health and safety, and welfare to return her to the parental care and custody of [her] parents and further finds that the Department of Human Services has proven by clear and convincing evidence that:

. . . .

(d) The parent, according to Ark. Code Ann. § 9-27-303(C), is found by a court of competent jurisdiction to have subjected the juvenile to aggravated circumstances. Specifically, the mother left the juveniles with Adrian Cornejo-Perez, who abused mother on a weekly basis, and the mother knew Adrian was abusive, and that Adrian did cause the death of I.Z. through abuse.

. . . .

7. Mother continues corresponding with Mr. Perez as evidenced by 14 letters written to Mr. Perez while incarcerated for the murder of mother's son, [I.Z.]. Mother was not credible in her testimony today or any other court hearings. Her stories continue to be inconsistent. Mother fails to address her role in the death of her son ... and failed to protect both [children]. Regardless of mother's compliance with the court orders, the Court finds the mother continues to be an unfit parent and there is no evidence that the services received by mother have aided in her parenting skills, or that she can put into practice what she should have learned in parenting classes.

The trial court's finding of extreme or repeated cruelty

As her first point on appeal, Pfeiffer contends that the State did not prove by clear and convincing evidence that she subjected M.P. to extreme or repeated cruelty. She argues that, although Cornejo had abused her before he injured I.Z., she had no reason to believe that Cornejo would hurt the two children, and the State produced no evidence that he previously mistreated either of them. Asserting that the trial court's finding of extreme cruelty relied on M.P.'s presence in the home at the time of I.Z.'s injuries, Pfeiffer argues that no evidence showed that M.P. was aware of the incident or affected by it. Pfeiffer points to testimony that M.P. was happy and well-dressed when DHS assessed the home, the home was very clean, M.P. was current on immunizations, and the children were healthy and well-cared for before the single incident of abuse.

We cannot address Pfeiffer's first point, however, because no appeal was taken from the order in which the trial court found that she subjected M.P. to extreme or repeated cruelty. In Lewis v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___, ___ S.W.3d ___, ___ (Nov. 17, 2005), our supreme court wrote:

Under Ark. R. App. P.-Civ. 2(c)(3), any party would have been entitled to appeal prior final orders from the adjudication hearing, review, and permanency-planning hearings. In this case, the parents did not choose to appeal from those final, appealable orders. Thus, we are precluded from reviewing any adverse rulings from these portions of the record.

Here, the trial court's finding that Pfeiffer subjected M.P. to extreme and repeated cruelty was set forth in a written order of December 21, 2004, entitled "Adjudication Order and Order for No Reunification Services and Permanency Planning Order." Under Lewis, this was a final, appealable order; because Pfeiffer did not appeal the order, her first point is not properly before us. 

The trial court's finding that it was unlikely that services to the family would result in successful reunification

As her second point on appeal, Pfeiffer contends that the State did not prove by clear and convincing evidence that it was unlikely that services to the family would result in successful reunification. She acknowledges that termination may occur when a parent manifests indifference or the incapacity to remedy the subsequent issues and properly protect her child. See Wright v. Arkansas Dep't of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003).

The trial court's order of December 21, 2004, included the requirements that Pfeiffer complete twelve hours of parenting classes, obtain a psychological evaluation, continue in individual counseling, see an ob/gyn (she was pregnant with Cornejo's child), pass all drug screens, and cooperate with DHS. Pfeiffer points on appeal to the trial court's acknowledgment at the termination hearing that she had met those requirements of the case plan, and she notes her testimony that she actually completed forty-two hours of parenting classes and continued to receive individual and group therapy. She asserts that the State presented no evidence of instability in employment or housing before the death of her son and gave no deference to the effect of the "horrendous incident" upon her "ability to continue in employment and housing immediately after the incident." She argues that she was not charged with a crime in connection with her son's death, that his abuser remained incarcerated, and that M.P. was not physically abused. Pfeiffer asserts that the circuit court's only explanation of finding little likelihood that services would result in successful reunification was the court's concern that she would someday choose another abuser as a mate. We find no merit to these arguments.

Termination 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. Arkansas Dep't of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1994). Our case law is clear that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Id. However, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Id. In cases involving minor children, a heavier burden is cast upon the trial court to utilize to the fullest extent all its powers of perception in evaluating witnesses, their testimony, and the children's best interests. Id. We have no such opportunity and know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carries as great a weight as one involving minor children. Id.

The rights of parents are not proprietary and are subject to their related duty to care for and protect the child. Wright, supra. In Wright we stated:

Appellant is badly mistaken in her belief that her parental rights cannot be terminated because she complied with the case plan and did not personally injure her child. She had a far greater duty to the child than she recognizes. It is not enough for her to refrain from personally harming the child; instead, it is her duty to take affirmative steps to protect the child from harm. ...

Nor is completion of the case plan determinative. What matters is whether her completion of the case plan achieved the intended result of making her capable of caring for her child. Appellant's continued denial of personal responsibility demonstrates that she manifested indifference or the incapacity to remedy the subsequent issues and properly protect her child.

83 Ark. App. at 7, 115 S.W.3d at 335 (internal citations omitted). Furthermore, parental unfitness is not necessarily predicated upon the parent's causing some direct injury to the child in question; to require a child to suffer the same fate as a sibling before obtaining the protection of the State would be tragic and cruel. Brewer v. Ark. Dep't of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001).

Here, Dr. Jerril Green, who attended I.Z. in the pediatric intensive care unit, testified that none of I.Z.'s injuries were consistent with any kind of accident. Officer Denny Upton of the Johnson Police Department testified that he contacted Pfeiffer the day after her son was injured. Upton stated that Pfeiffer avoided him and other officers initially, and she at first told him that M.P. had run into I.Z. and knocked him down on the previous Saturday. Officers interviewed Pfeiffer again after finding out from Children's Hospital that the injuries were not consistent with such a fall; she then said that the injuries may have occurred on Sunday evening when I.Z. slipped from the car seat she was carrying. Upton stated that Pfeiffer's demeanor in telling her story was very calm and nonchalant, that M.P. was fine, and that nothing about the environmental condition of the home posed a threat to the child. During Upton's first interview, Cornejo remained in an adjoining bathroom for about thirty minutes; in a domestic incident a month earlier, another officer believed that Pfeiffer wrongly identified another person to police as Cornejo.

Pfeiffer testified to the following events that began on the October weekend when she and Cornejo argued and she tried to get out of the house. Pfeiffer put I.Z. in a car seat and was at the front door when Cornejo grabbed her, pulling her down to the floor. Her son hit the back of his head on the concrete floor and cried, but he had no marks or bruises. Cornejo apologized and there was no more physical abuse that night; Pfeiffer was not in fear of her safety, but still planned to leave the next day with her children when she could. She went to work around 3:30 p.m. when I.Z. was asleep in his "babypen," and he was fine when she returned after 10:00 that night. M.P., who was playing and waiting for her mother, was also fine, not hurt or scared in any way.

Pfeiffer further testified that Cornejo was giving I.Z. a bottle when she left the next day for an ultrasound appointment for her pregnancy. I.Z. was not in distress and was not fussy. Pfeiffer went to her appointment and then to get formula and milk. When she returned home at 10:00 a.m., M.P. was waking up downstairs on her mat. Pfeiffer found I.Z. vomiting and unresponsive; he was upstairs with Cornejo, who was rocking him back and forth. Pfeiffer immediately called 911 and asked Cornejo what was wrong with I.Z. Cornejo said that I.Z. had been fine after drinking his bottle earlier and had gone back to sleep; after the hospital reported that I.Z. had two skull fractures, Cornejo's only explanation was that M.P. could have banged into her brother.

Pfeiffer testified that she stayed at the local hospital and then took M.P. with her to Arkansas Children's Hospital for a few hours after I.Z. was transported there. She was toldthat someone had shaken her son. Pfeiffer returned with M.P. to northwest Arkansas to pack a suitcase, and she checked out a library book on shaken baby syndrome. She thought that Cornejo must have been the perpetrator and she accused him, but he denied it and she did not know what to believe. She was arrested and told the police what Cornejo had told her, that I.Z. was standing in the kitchen and M.P. ran into him. Pfeiffer eventually told the police about the incident of the car seat flipping when Cornejo grabbed her and her son. She testified, "Even now, I do not know what caused my baby's death."

Pfeiffer admitted corresponding by letter with Cornejo while he was jailed; she said that she sent pictures of her son and his funeral. She admitted that she had continued to be in contact with Cornejo despite testifying at the adjudication hearing that she was "done with Adrian Cornejo." She said that she turned over all his letters to the prosecuting attorney. She agreed that she had suffered both physical and emotional abuse from Cornejo, but she said that her children were absent for most of the altercations because her own mother had the children for two-and-a-half months.

Belinda Hensley, Pfeiffer's mother, testified that she knew that her daughter had some problems in "her relationship" and that there was some physical abuse. Hensley stated, however, that she never saw any indication that the grandchildren were in any harm or danger.

As set forth earlier in the order terminating Pfeiffer's parental rights, the trial court found that she continued to tell inconsistent stories, was not credible, failed to address her role in I.Z.'s death, and failed to protect I.Z. and M.P. The trial court further found that, regardless of her compliance with the court's orders, she continued to be an unfit parent, there was no evidence that the services she had received had aided in her parenting skills, and there was no evidence that she could put into practice what she should have learned in parenting class. From our review of the evidence and our deference to the trial court on matters of credibility, we hold that the trial court did not err.

Just as in Wright v. State, supra, completion of the case plan was not determinative of the intended result of making the mother capable of caring for her child. Pfeiffer's continued denial of personal responsibility for the death of I.Z. demonstrates that she manifested indifference or the incapacity to remedy the subsequent issues and properly protect M.P. The finding that services to the family were unlikely to result in successful reunification was not clearly erroneous.

Affirmed.

        Hart and Neal, JJ., agree.

1 In testimony and written documents, Adrian Cornejo is sometimes referred to as Adrian Cornejo-Perez or Mr. Perez.