Kathy Hosier v. Arkansas Department of Health and Human Services
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
SARAH J. HEFFLEY, JUDGE
DIVISION IV
CA 07-117
June 20, 2007
KATHY HOSIER
APPELLANT
APPEAL FROM THE CLAY COUNTY
CIRCUIT COURT, JUVENILE DIVISION
[NO. EJV-2005-12]
V.
HONORABLE CINDY GRACE THYER,
CIRCUIT JUDGE
ARKANSAS DEPARTM ENT OF
HEALTH AND HUMAN SERVICES
APPELLEE
AFFIRMED
Appellant Kathy Hosier appeals an order terminating her parental rights to her
daughters C.C., born 7/12/94, and K.H., born 1/26/01. Appellant offers two arguments
on appeal: (1) The trial court erred when it considered testimony from prior hearings in its
decision to terminate parental rights; (2) The trial court erred in terminating parental rights
because appellant was in substantial compliance with the case plan and court orders. We find
no error and affirm.
C.C. and K.H. were taken into the custody of the Department of Health and Human
Services (DHHS) on August 26, 2005, after the State Police Child Abuse Hotline received
a report alleging that C.C. had been sexually abused by a family friend living in the home.
The allegation was investigated and found to be true. In addition, C.C. was found to have
been sexually abused by her stepfather, who is now deceased.
The children were adjudicated dependent-neglected at hearings held on September
23, 2005, and November 16, 2005. In the adjudication order filed January 6, 2006, both
children were found to have been sexually abused by Boyd Keelin, a friend of appellant’s.
There were also findings of environmental neglect in the form of filthy living conditions,
and appellant was charged with sixty counts of animal abuse stemming from her operation
of a kennel.1 A goal of reunification was set for the case, and appellant was ordered to
complete parenting classes, cooperate with DHHS, submit to psychiatric testing and follow
the recommendations thereof, and find suitable housing. Appellant was allowed supervised
visitation with her children, but the court ordered that there be no contact between the
children and Keelin.
At a review hearing held July 10, 2006, the goal of reunification was continued, but
appellant was ordered to seek psychotherapy, seek an assessment for the possible benefits of
psychotropic medication, and to cooperate with DHHS, follow the case plan, and comply
with previous orders of the court. At the permanency planning hearing held on August 24,
2006, the goal of the case was changed to termination of parental rights. The goal for C.C.
was set as adoption, and the goal for K.H. was set as reunification with her biological father.
The court found that appellant had not complied with the case plan or the orders of the
court, and specifically that she had not kept regular individual therapy sessions and had not
1
Appellant was later sentenced to thirty days’ imprisonment on these charges.
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submitted to a psychotropic medication assessment.
A termination hearing was held on October 2, 2006. DHHS presented the testimony
of Daryl Aikman, who is Keelin’s parole officer.2 Aikman testified that on September 22,
2006, only ten days before the termination hearing, he had conducted a home visit at
Keelin’s residence, and appellant was there with Keelin. Aikman stated that it appeared they
were just talking and preparing dinner. Aikman testified he was there approximately twenty
minutes, and appellant was at the residence the entire time and remained at the residence
when Aikman left.
Candy Tarpley, an investigator for DHHS, testified that she was involved in the
primary pick-up in the case. She testified that she knew who Keelin was, and that
approximately two weeks previously, she had seen Keelin and appellant together at the
grocery store.
Mia Mumford, a therapist at Mid-South Health Systems, testified that she had been
providing family therapy to appellant on a weekly basis since August 8, 2006. Mumford
testified that the primary issue they addressed in therapy was appellant’s relationship with
C.C. and appellant’s refusal to believe the allegations of sexual abuse perpetrated by Keelin.
Mumford also testified that they had been examining appellant’s pattern of behavior as it
involved forming relationships with people who have betrayed her trust and hurt her
children. Mumford recommended terminating appellant’s parental rights based on (1)
2
In an order filed April 17, 2006, Keelin pled guilty to sexually assaulting appellant’s
daughters, received a sentence of 120 months’ probation, and was required to register as a
sex offender.
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appellant’s inability to resolve whether she believes C.C. was ever really sexually abused, (2)
appellant’s trouble believing that C.C. can tell the truth, and (3) appellant’s pattern of
forming relationships with former sex offenders and people who compromise the safety of
her children. Mumford did state that appellant had attended all scheduled therapy sessions
since August 8, 2006, but she also testified that it could take months or years for appellant
to reconcile her issues.
DHHS caseworker Max Pohl testified that he had been the caseworker assigned to
appellant’s case for the past year. He testified that the children had been in DHHS custody
for almost fourteen months. Pohl testified that appellant’s compliance with the case plan and
court orders over the past thirteen months had varied. Appellant’s initial psychotherapy with
Families, Inc. had ceased due to non-compliance, but after the permanency planning hearing
on August 24, appellant began attending regular therapy sessions at Mid-South. Pohl stated
that he did not see any real results from the therapy that would make him feel secure.
Pohl also testified that appellant told him she was not seeing Keelin and signed a
contact sheet on September 21, 2006, verifying that she had not seen Keelin since bailing
him out of jail on April 19, 2006.3 Pohl testified that he later received the information
concerning the home visit to Keelin’s residence on September 22. Pohl expressed concern
that if appellant was not honest with him, then perhaps she was not being honest in her
therapy. He was also concerned that if the children went back to appellant, they would be
placed in the same situation of being around Keelin, and DHHS would not have the ability
3
At the time Keelin was released from jail, he listed appellant’s address as his home address,
and appellant admitted to DHHS that he was living in another trailer on her property.
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to monitor the situation on a day-by-day basis. Pohl testified that the safety of the children
and their well-being would be in question during the time they were not being monitored,
and he believed termination of appellant’s parental rights was in the children’s best interest.
Finally, Liz Fitzgibbons, another caseworker at DHHS, testified as to the likelihood
of C.C. being adopted. Fitzgibbons testified that because C.C. has special needs, finding an
adoption placement for her would be harder, but she also testified that C.C. has a sweet
personality and is very endearing. She testified that she believed DHHS could find a good
family for C.C., she had already been talking to some families about C.C., and there was
a likelihood that C.C. would be adopted.
At the conclusion of the testimony, the court ruled that appellant’s parental rights
would be terminated as to both C.C. and K.H. The court found that appellant was not
credible, specifically referencing testimony offered by appellant at the permanency planning
hearing on August 24 and noting the inconsistencies in that testimony. Based on that
testimony and the testimony offered at the termination hearing, the court found that DHHS
had proven by clear and convincing evidence that termination was in the best interest of the
children.
Appellant then objected to “part of the Court’s rational[e] and the reasons stated by
the Court,” arguing that it was improper for the court to rely on the prior testimony from
the permanency planning hearing in making its decision. Appellant argued that considering
the prior testimony violated Supreme Court Rule 6-9(c)(1)(2006), which states: “The
record for appeal shall be limited to the transcript of the hearing from which the order on
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appeal arose, any petitions, pleadings, and orders relevant to that hearing, and all exhibits
entered into evidence at that hearing.” Appellant also argued there was an apparent conflict
between that rule and Ark. Code Ann. § 9-27-341(a)(4)(B) & (d)(2) (Supp. 2005), which
respectively provide:
(B) The court shall rely upon the record of the parent's compliance in the entire
dependency-neglect case and evidence presented at the termination hearing in
making its decision whether it is in the juvenile's best interest to terminate parental
rights.
***
(2) If the parent was represented by counsel, the court shall take judicial notice and
incorporate by reference into the record all pleadings and testimony in the case
incurred before the termination of parental rights hearing.
The court agreed there was a potential conflict between the rule and statute and struck that
portion of its ruling that referred to the August 24 hearing. However, the court reiterated
that it found appellant not credible based on the evidence introduced without objection at
the termination hearing. The order terminating appellant’s parental rights, which references
only the evidence presented at the termination hearing, was entered on December 6, 2006.
This timely appeal followed.
We recognize that termination of parental rights is an extreme remedy and 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). Parental rights, however, will not be enforced to the
detriment or destruction of the health and well-being of the child. Id. 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. Baker v. Ark. Dep’t of Human
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Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). 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. 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. Id. 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. Ullom v. Ark. Dep't of Human Servs., 340
Ark. 615, 12 S.W.3d 204 (2000).
Appellant’s first argument on appeal is a reiteration of her argument below, namely
that the trial court erred when it considered appellant’s prior testimony from the
permanency planning hearing as a basis to terminate her parental rights. However,
appellant’s objection to the trial court’s ruling on that basis was sustained below, and the
court struck any consideration of prior testimony from its ruling. A party cannot complain
when he or she has received all the relief requested, Mikel v. Hubbard, 317 Ark. 125, 876
S.W.2d 558 (1994), thus appellant’s argument is without merit. Appellant also argues that
striking a portion of the trial court’s ruling was not enough to cure its error; however, there
is a presumption that a trial judge will consider only competent evidence, and this
presumption is overcome only when there is an indication that the trial judge gave some
consideration to the inadmissible evidence. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472
(2000). Here, the record shows that the trial court specifically struck that portion of its
ruling that contained what appellant asserts was improper evidence, and the order referenced
only the evidence that was presented at the termination hearing. Appellant has failed to
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show any indication that the trial court continued to rely on the previous testimony in
making its ruling.4
Appellant’s second argument on appeal is the broad assertion that “the trial court
erred when it terminated parental rights of the appellant.” The bulk of appellant’s argument
on this point consists of a series of references to other termination cases, but with no
argument as to how those cases are or are not applicable to the case at bar. As part of her
second argument, appellant also asserts that this court should consider the steps she has taken
to comply with the case plan and court orders. Appellant argues that she completed
parenting classes, has undergone a psychological evaluation, resolved the environmental
neglect issues, and was substantially compliant in attending visitation with the children.
However, our case law has established that a parent’s rights may be terminated even though
they are in partial compliance with the case plan. Chase v. Ark. Dep't of Human Servs., 86
Ark. App. 237, 184 S.W.3d 453 (2004). In fact, this court has held that even full completion
of a case plan is not determinative of the outcome of a petition to terminate parental rights.
Wright v. Ark. Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). What matters
is whether completion of the case plan achieved the intended result of making the parent
capable of caring for the child. Id. In this case, the trial court found that the evidence
showed appellant remained incapable of protecting the health and safety of her children, and
we cannot say that this finding was clearly erroneous.
4
Moreover, we note that under Ark. Code Ann. § 9-27-341(a)(4)(B), it would have been
proper for the trial court to rely in part on appellant’s previous testimony offered at the
permanency planning hearing, and we perceive no conflict between Supreme Court Rule
6-9 and the above-noted provisions of Ark. Code Ann. § 9-27-341.
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We note appellant’s assertion that just the possibility of a “child maltreatment
incident” reoccurring and the court’s concern about appellant’s relationship with Keelin are
not statutory grounds to terminate. In fact, the evidence of appellant’s continued contact
with Keelin presented at the termination hearing raises a substantial likelihood that the abuse
could reoccur and supports the trial court’s finding that “there is the potential harm to the
health and safety of the juveniles caused by returning the children to the custody of the
mother.” See Ark. Code Ann. § 9-27-341(b)(3)(A)(ii) (Supp. 2005). Finally, appellant
concludes her argument with the statement, “Furthermore, termination of her parental
rights was not proven to be in the best interest of the children,” but she fails to develop any
argument to support the assertion. When an appellant neither cites authority, nor makes a
convincing argument, and where it is not apparent without further research that the point
is well taken, we will affirm. Mikel, supra. Furthermore, avoidance of potential sexual abuse
supports the conclusion that termination of parental rights is in the best interest of the
children.
Affirmed.
P ITTMAN, C.J., and R OBBINS, J., agree.
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