Jason Phillips and Amber Evans v. Arkansas Department of Health and Human Services
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN B. ROBBINS, JUDGE
DIVISION IV
CA 07-84
MAY 30, 2007
JASON PHILLIPS and AMBER EVANS
APPELLANTS
V.
ARKANSAS DEPARTMENT OF
HEALTH & HUMAN SERVICES
APPELLEE
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT, [NO. JV-05-188]
HONORABLE MARK HEWETT,
JUDGE
AFFIRMED
Appellant Jason Phillips appeals from an order terminating his parental rights to his
three children, K.P., d/o/b 7-9-02, J.P., d/o/b 7-1-03, and T.P., d/o/b 8-21-04.1 For reversal,
Mr. Phillips argues that (1) the trial court erred in finding that termination was in the children’s
best interest and that one of the statutory grounds was proven; (2) the trial court erred in
finding that the Arkansas Department of Health and Human Services provided reasonable
efforts and services to reunify the family; and (3) the trial court erred in finding that an
appropriate permanency plan exists and that the children are likely to be adopted. We find no
error, and we affirm.
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The children’s mother also had her parental rights terminated, but she is not a party
to this appeal.
When the issue is one involving the termination of parental rights, there is a heavy
burden placed upon the party seeking to terminate the relationship. Dinkins v. Arkansas Dep’t
of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Termination of parental rights is an
extreme remedy and is in derogation of the natural rights of the parents. Id. However,
parental rights should not be allowed to continue to the detriment of children’s welfare and best
interest. J.T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).
In the instant case, the trial court terminated Mr. Phillips’s parental rights pursuant to
the following provisions of Ark. Code Ann. § 9-27-341(b) (Supp. 2005):
(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 returning the child to the custody of 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 dependentneglected 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.
Our law is well settled that when the burden of proving a disputed fact in an equity court is by
clear and convincing evidence, we will not reverse the trial court’s finding unless clearly
erroneous. Larscheid v. Arkansas Dep’t of Human Servs., 343 Ark. 580, 36 S.W.3d 308
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(2001). Clear and convincing evidence is that degree of proof that will produce in the
factfinder a firm conviction as to the allegation sought to be established. Id.
This case began on M arch 10, 2005, when ADHHS took an emergency hold of the
children due to environmental neglect. On that day, an ADHHS worker investigated the
apartment where Mr. Phillips lived with his children and the children’s mother in Fort Smith.
The home was filthy and not suitable to live in. The children remained in ADHHS custody and
subsequent to a hearing held April 15, 2005, the trial court entered an order adjudicating the
children dependent/neglected on September 22, 2005. The trial court ordered DNA testing to
determine the paternity of the children, and at a September 27, 2005, review hearing, the trial
court declared that Mr. Phillips is the father of the children. This finding was memorialized
in an order entered February 3, 2006, which directed Mr. Phillips to pay $35 per week in child
support, complete parenting classes, submit to a drug and alcohol assessment, maintain suitable
housing and employment, and visit the children weekly.
On May 4, 2006, the trial court entered a permanency planning order that changed the
goal of the case from reunification to termination of parental rights. In that order, the trial
court found that neither parent had complied with the case plan or made any progress
whatsoever. A petition to terminate parental rights was filed by ADHHS on August 2, 2006.
After the termination hearing held September 25, 2006, the trial court entered the order
terminating Mr. Phillips’s parental rights on November 7, 2006.
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Mr. Phillips testified on his own behalf at the termination hearing. He stated that he
moved to Atkins, Arkansas, about a month and a half ago, where he lives with his mother in
her house. Prior to that time, he had no stable residence, and “just lived with some friends
around Fort Smith that would allow me to stay with them.” Mr. Phillips testified that he has
maintained fairly steady employment, and that he recently changed jobs and was scheduled to
begin his new job on the day after the termination hearing. Mr. Phillips indicated that his
mother keeps a clean and suitable home, and that he planned to have a house of his own within
a month so he could get his children back. Mr. Phillips stated that he completed parenting
classes as well as a psychological evaluation, and that while he did not complete a drug and
alcohol assessment, all of his drug screens were negative. Mr. Phillips testified that if his
children were returned to his custody, he has a lot of family including his mother who are
willing to assist in raising them.
Mr. Phillips acknowledged in his testimony that he is behind on his child-support
obligation, having paid only sixty-one percent of what he was ordered to pay. He also
admitted that he has not visited his children since he moved to Atkins to live with his mother.
Prior to that time, Mr. Phillips attended visitation sporadically, and as of the time of the
hearing he had made thirty-nine out of a possible seventy-six visits.
Caseworker Robbie McKay was assigned to this case, and she recommended
termination of Mr. Phillips’s parental rights, stating, “At this point I do not see the parents
making any significant progress that would cause me to conclude that they will be ready for
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the children anytime in the foreseeable future.” Ms. McKay indicated that throughout the
history of the case, ADHHS provided extensive services, including psychological evaluations,
counseling referrals, referrals for drug and alcohol assessments, parenting classes, DNA
testing, HUD referrals, transportation, home studies, visitation, foster care, and medical
services for the children. As to the children’s prospects for adoption, Ms. McKay stated:
I see no reason to think that these children wouldn’t be readily adoptable. With my
eleven years of experience as a caseworker I feel we can place these children in an
adoptive placement with relative ease. I think it’s in their best interest at this point.
The appellant’s mother, Carolyn England, testified that she had requested a home study
so she could receive the children in her home until M r. Phillips is able to obtain his own
housing. Mrs. England indicated that although she sees no reason why her son should not have
custody of his children, she would be willing to allow them in her home on a permanent basis
if his parental rights were terminated.
Mr. Phillips’s first argument on appeal is that the trial court clearly erred in finding that
termination was in the children’s best interest, and clearly erred in finding that the children had
been out of the home for twelve months and the conditions causing removal had not been
remedied. Mr. Phillips notes that he was not declared the legal father of the children until the
September 27, 2005, review hearing, and that the subsequent order declaring him to be the
father was not entered until February 3, 2006. He asserts that since being adjudicated the
father he has substantially complied with the case plan by completing parenting classes,
completing a psychological evaluation, and remaining drug free. Mr. Phillips maintains that
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he has currently has his life in order, and that with the help of his family he is in a position to
finalize his plan and obtain a home for his children. Given his efforts to comply with the case
plan and move toward reunification, Mr. Phillips contends that the trial court erred in failing
to give him one more month as he requested at the termination hearing.
We hold that the trial court did not clearly err in finding one of the statutory grounds to
support parental termination, i.e., § 9-27-341(b)(3)(B)(i)(a), or in finding that termination was
in the children’s best interest. Mr. Phillips was the putative father at the inception of this case,
and had apparently acted as the children’s father during the course of their lives as they shared
his surname and were in his custody upon removal by ADHHS. While he was not officially
declared to be the children’s father until September 27, 2005, this was more than one year
prior to the termination order entered November 7, 2006. Mr. Phillips was given ample time
to remedy the conditions that caused removal, and the trial court committed no error in finding
that he failed to do so.
The children were taken from Mr. Phillips’s custody because they had not been given
appropriate housing. Since that time, Mr. Phillips moved around frequently and still did not
secure appropriate housing for the children by the time of the termination hearing, which was
more than eighteen months after removal of the children. Moreover, he was starting a new job
and was substantially behind in his obligation to support his children, and maintained visitation
with the children on only about half of the scheduled visits, none of which came in the past
month and a half. Under these circumstances there was no error in the trial court’s findings
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that a period of twelve months had elapsed since removal of the children, that Mr. Phillips
failed to remedy the conditions that caused removal, and that termination of Mr. Phillips’s
parental rights was in the children’s best interest.
Mr. Phillips’s next argument is that the trial court erred in finding that ADHHS made
reasonable efforts to provide services to the family. We do not agree. The trial court credited
the testimony of caseworker Ms. McKay, who established that ADHHS provided numerous
services evidencing a meaningful effort to rehabilitate the parent and correct the conditions that
caused removal.
Mr. Phillips’s remaining argument is that the trial court erred in finding that there was
an appropriate permanency plan as required by Ark. Code Ann. § 9-27-341(b)(1)(A), and
he specifically challenges the court’s finding that the children are likely to be adopted.
Mr. Phillips relies on the evidence that the children have been diagnosed with behavioral and
developmental problems, and that there were no adoptive placements as of the time of the
termination hearing.
The adoptability of the children is but one factor to consider in the overall termination
of one’s parental rights, and there is no requirement that every factor considered be established
by clear and convincing evidence; rather, after consideration of all factors, the evidence must
be clear and convincing that the termination is in the best interest of the child. McFarland v.
Arkansas Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). In this case Ms.
McKay gave the opinion that, despite the problems facing the children, the children could be
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placed for adoption “with relative ease.” Given this testimony, the trial court did not err in
finding that the children are readily adoptable and that, under all of the circumstances
presented, termination of parental rights was in their best interest.
Affirmed.
H ART and GLADWIN , JJ., agree.
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