James Wright and Dana Schossow v. Arkansas Department of Human Services
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
SAM BIRD, JUDGE
DIVISION IV
CA07-1299
MAY 28, 2008
JAMES WRIGHT and
DANA SCHOSSOW
APPELLANTS
v.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
AN APPEAL FROM GARLAND
COUNTY CIRCUIT COURT
[No. JV-06-477]
HONORABLE VICKI SHAW COOK,
JUDGE
AFFIRMED
This is a termination-of-parental-rights case involving appeals from the mother and
the father of the child. We affirm the circuit court’s decision to terminate both parents’
parental rights.
I. Procedural history
On July 20, 2006, DHS filed a petition for emergency custody of S.C., born
August 20, 2004, against appellant Dana Schossow, the child’s mother, and the child’s
unknown legal or putative father, based on an affidavit of a DHS employee stating that
S.C. was inadequately supervised by Ms. Schossow, who was eventually located at the
Royal Vista Inn in Hot Springs. The DHS worker stated that, when she was called in for a
drug test, Ms. Schossow tested positive for methamphetamines and amphetamines and
that, due to her prior history with DHS since 2003, her lack of a permanent residence, and
the positive drug test, the employee believed S.C. to be in immediate danger and placed a
seventy-two-hour hold on her. The court entered an order for emergency custody of S.C.
on July 24, 2006.
By the time of the probable-cause hearing on July 26, 2006, appellant James
Wright had been identified as S.C.’s putative father. At that time, he was in prison for
second-degree murder, serving a sentence of twelve years. In fact, S.C. was conceived at
the prison when Ms. Schossow bribed a guard to leave her and Mr. Wright alone long
enough for a forbidden tryst. Based on the DHS worker’s recommendation, the court
refused to let him see S.C. while he was in prison. Although he was not present at the
probable-cause hearing, his attorney was. Ms. Schossow and her attorney were also
present. That day, the court entered an order of probable cause directing Ms. Schossow to
remain clean and sober; to seek inpatient treatment; and to remain in weekly contact with
her caseworker, attorney, and CASA volunteer (if appointed). The court ordered Mr.
Wright to pay weekly child support of $34 but held the obligation in abeyance until after
his release from prison. Mr. Wright wrote the court on July 27, 2006, stating that he
intended to be involved in S.C.’s life; that he wanted visitation; and that, upon his release
from prison, he intended to seek guardianship of her. He asked for the court’s help in
maintaining contact with S.C.
An adjudication hearing was held on August 24, 2006, which both parents and
their attorneys attended. That day, the court entered an order adjudicating S.C. to be
dependent-neglected, noting that DHS had been involved with an ongoing FINS action
beginning in 2004 and that a referral with true findings against Ms. Schossow had been
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active with DHS since 2003. The court set the case goal as reunification and approved
DHS’s case plan. The court held that Ms. Schossow could have supervised visitation at the
DHS office if her drug screens were negative. The court ordered her to contact her
caseworker on a weekly basis; to follow all the court’s orders and the case plan; to
cooperate with the caseworker; to remain clean and sober at all times; to promptly submit
to random drug testing; to seek inpatient treatment; to attend ninety meetings in ninety
days of NA/AA until entering inpatient drug treatment; and to submit proof of stable
housing and income. The court ordered DNA testing for Mr. Wright.
A review hearing was held on November 15, 2006, at which both appellants were
present with their attorneys. The court continued the case goal to be reunification and
found that Ms. Schossow had “somewhat complied” with the case plan and the court’s
orders. The court restated its previous orders to her and continued her supervised
visitation. The court stated that Mr. Wright would receive no visitation until he was
released from prison. It also found that Mr. Wright is S.C.’s father and directed him to
have no contact with the child’s foster mother.
Following a hearing, the trial court entered an order on March 8, 2007, finding
that Ms. Schossow had partially complied with the case plan and court orders; that Mr.
Wright had completed parenting classes but remained incarcerated; and that the case goal
would remain reunification. The court ordered appellants to prove to the court, the
caseworker, and the attorney ad litem that they had followed the court’s orders and case
plan; cooperated with the caseworkers; remained clean and sober at all times; submitted to
random drug testing; obtained and maintained stable housing and employment; and
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viewed the “Clock Is Ticking” video. The court held that Ms. Schossow could have
supervised visitation on weekends at Potter’s Clay (an inpatient drug treatment program)
after she had remained there a minimum of fourteen days.
A permanency-planning hearing was held on June 13, 2007, at which appellants
appeared with their attorneys. The court found that DHS had made reasonable efforts to
deliver reunification services; that Ms. Schossow had failed to comply with the case plan
and the court’s orders; and that Mr. Wright had completed parenting classes but remained
incarcerated. The court suspended Ms. Schossow’s visitation with S.C. It found clear and
convincing evidence that appellants had failed to follow the case plan; to maintain contact
with the caseworker; to enter and complete the treatment program at Potter’s Clay; to
maintain stable housing and stable employment; to complete a psychological evaluation; to
prove clean, random drug screens; or to comply with the respiratory and special needs of
the child. The court scheduled a termination hearing.
DHS filed a petition for termination of parental rights against appellants on July 2,
2007, alleging that Ms. Schossow had failed to follow all of the court’s orders or comply
with the case plan; that Mr. Wright had completed parenting classes but remained
incarcerated; that neither parent had proven stable housing and employment; that neither
parent had provided significant support in accordance with their means nor made
meaningful contact with S.C.; and that Ms. Schossow continued to use illegal drugs. It also
alleged that, subsequent to the filing of the original petition, other factors or issues arose
demonstrating that return of the child to the parental home was contrary to her health,
safety, and welfare and that, despite the offer of appropriate family services, the parents had
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manifested the incapacity or indifference to remedy the subsequent issues or factors or
rehabilitate their circumstances which prevented return of the child to the parental home.
In response, Mr. Wright pointed out that DHS had provided no reunification services to
him.
The termination hearing was held on September 24, 2007, and both parents were
present with their attorneys. Tamara Stricklin, a social-service aide, testified that she had
been unable to contact Ms. Schossow for numerous drug screens between March 2007
and June 2007. Crystalle Jones, the primary family-service worker, testified that, after Ms.
Schossow left her inpatient program in March 2007, she tested positive for cocaine on
April 18, 2007. She said that Ms. Schossow was then ordered to attend an inpatient
program at Potter’s Clay, to which Ms. Jones referred her; however, she refused to do so
because she wanted to get a house and a job. Ms. Jones also stated that Ms. Schossow had
not obtained stable housing. She said that Ms. Schossow had worked at the Fountain Lake
Nursing Home for four or five months, less than the six months considered by DHS to
reflect stability. Ms. Jones also testified that DHS had not been able to administer all of the
drug tests to Ms. Schossow because of her failure to consistently provide telephone
numbers where she could be reached. Ms. Jones stated that Ms. Schossow had not verified
her completion of an inpatient treatment program since the one she finished in March
2007; her payment of child support; or that she had quit smoking because of S.C.’s
respiratory problems. She said that Ms. Schossow had kept in touch with her “pretty well”
but had lived in at least six places during this proceeding and had recently married a man
with a criminal history without first telling DHS that they were involved. Ms. Jones stated
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that DHS offered no reunification services to Mr. Wright because he would not be leaving
prison in the reunification time frame. She did not know when he would be released.
Mr. Wright testified that, in prison, he had completed the pre-release, drug-andalcohol, anger-resolution, anti-drug, parenting, life-skills, and “Freedom from Bitterness”
programs. He said that all of his drug tests had been negative and that he had been clean
and sober for five years. He stated that, before S.C. was taken into custody, Ms. Schossow
brought her to see him approximately every other weekend; that he sent her letters; that
he had visited Ms. Schossow’s house when he was on furlough; that he had held S.C. and
taken her shopping; and that he had sent Ms. Schossow money he earned on work-release
for S.C.’s support.
On September 28, 2007, the court entered an order terminating appellants’ parental
rights to S.C., stating that DHS had proven by clear and convincing evidence that,
according to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), the special-needs child, who was
diagnosed as having failure to thrive with severe speech delays, had remained out of either
parental home for more than twelve months. The court stated:
[T]hat mother, immediately prior to the Permanency Planning hearing hearing [sic]
attempted to cure her case plan deficits; however, any such attempts to cure need
not considered [sic] by this Court; that mother failed to remain in contact with the
DCFS caseworker; consequently, no stability on her part could be documented as a
result; that mother failed to prove she was clean and sober, failed to cooperate with
DCFS caseworker, failed to follow all of this Court’s orders and to comply with the
ADHS case plan, tested positive for cocaine/crack on 4/18/07, and she has failed
since that time to remain in contact with DCFS caseworker, prove a stable home,
or to submit to Court-ordered inpatient drug treatment for the second time; that
father has completed parenting and anger management classes while in prison but
remains incarcerated and is serving a 15-year sentence for second-degree murder;
that throughout this time, the parents have not proven stable-housing and stable
employment, and they have not provided significant support in accordance with
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their means nor maintained meaningful contact with this juvenile; that mother
continued to use illegal drugs as of her 4/18/07 drug test, although other
unsuccessful attempts were made to have her submit to random drug testing
throughout this case . . . .
The circuit court also found that, subsequent to the filing of the original emergency
petition, other factors or issues arose that demonstrated that return of the child to the
parental home was contrary to her health, safety, and welfare and that, despite the offer of
reasonable services, appellants had manifested the incapacity or indifference to remedy the
subsequent issues or factors or to rehabilitate their circumstances that prevented her return
to the parental home. The court added that incarceration of a parent would not toll the
parent’s obligation to the child. Appellants then pursued this appeal.
II. Standard of review
The standard of review in cases involving the termination of parental rights is well
established. Arkansas Code Annotated section 9-27-341(b)(3) (Repl. 2008) requires an
order terminating parental rights to be based upon clear and convincing evidence.
Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). 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. E.g., Lewis v. Ark. Dep’t of Human
Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). 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
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and firm conviction that a mistake has been made. Gregg v. Ark. Dep’t of Human Servs., 58
Ark. App. 337, 952 S.W.2d 183 (1997). Such cases are reviewed de novo on appeal. Wade
v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). However, appellate
courts do give a high degree of deference to the trial court, as it is in a far superior position
to observe the parties before it and judge the credibility of the witnesses. Dinkins v. Ark.
Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
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. Ullom v. Ark. Dep’t of
Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Termination of parental rights is an
extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless,
parental rights will not be enforced to the detriment or destruction of the health and wellbeing of the child. Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310
(1997). 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. v. Ark. Dep’t
of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).
III. Mr. Wright’s argument
Mr. Wright points out that the DHS worker did not know the length of his
sentence or whether he would be eligible for parole. He states that, at the time of the
termination hearing in September 2007, he was scheduled for a parole hearing in sixty
days and release in December. He stresses that, even though he was offered no services by
DHS, he participated in the parenting, drug-and-alcohol, anger-management, and lifeskills programs offered by the department of corrections. Mr. Wright does not dispute that
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S.C. was out of his custody for more than twelve months. He contends, however, that it
was unreasonable for the trial court to base its decision on his failure to maintain contact
with or to support S.C. when it denied him the opportunity to see her or to communicate
with her foster mother, which, given her young age, would be the only practical way to
contact her. He also points out that he was incarcerated nearby in Malvern and that the
court held his obligation to pay child support in abeyance until his release from the
department of corrections.
The relevant portions of Ark. Code Ann. § 9-27-341(b) (Repl. 2008) provide:
(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.
(b) It is not necessary that the twelve-month period referenced in subdivision
(b)(3)(B)(i)(a) of this section immediately precede the filing of the petition for
termination of parental rights or that it be for twelve (12) consecutive months;
(ii)(a) The juvenile has lived outside the home of the parent for a period of
twelve (12) months, and the parent has willfully failed to provide significant
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material support in accordance with the parent’s means or to maintain
meaningful contact with the juvenile.
(b) To find willful failure to maintain meaningful contact, it must be shown
that the parent was not prevented from visiting or having contact with the
juvenile by the juvenile’s custodian or any other person, taking into
consideration the distance of the juvenile’s placement from the parent’s home.
(c) Material support consists of either financial contributions or food, shelter,
clothing, or other necessities when the contribution has been requested by the
juvenile’s custodian or ordered by a court of competent jurisdiction.
....
(viii) The parent is sentenced in a criminal proceeding for a period of time that
would constitute a substantial period of the juvenile’s life . . . .
Although imprisonment imposes an unusual impediment to a normal parental
relationship, it is not conclusive on the issue of termination. Crawford v. Ark. Dep’t of Human
Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Nevertheless, a parent’s imprisonment does not
toll his responsibilities toward his children. Malone v. Ark. Dep’t of Human Servs., 71 Ark. App.
441, 30 S.W.3d 758 (2000). Tolling a parent’s obligations to comply with reunification orders
while he is in jail would be contrary to the goal of the juvenile code to provide permanency
for the children. Id. The appropriate inquiry where a parent has been ordered to comply with
a court’s reunification orders and is incarcerated is whether the parent utilized those resources
available to maintain a close relationship with the children. Id.
We recognize Mr. Wright’s attempts to be a part of S.C.’s life and his completion of
the self-improvement programs in prison as evidence of his good-faith desire to be a parent
to her. Nevertheless, at the time of the termination hearing, he had no stable employment or
home and it was still uncertain when he would be released from prison. He admitted at the
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hearing that it would take another year for him to provide a stable home for S.C. Thus, when
the circuit court was faced with this decision, there was no evidence that S.C. could be placed
in Mr. Wright’s care within a reasonable period of time viewed from her perspective. Because
he could not give S.C. one of her most basic needs—a stable home—we find no error in the
circuit court’s decision to terminate his parental rights. See Ark. Code Ann. § 9-27-341(a)(3)
(Repl. 2008).
IV. Ms. Schossow’s argument
Ms. Schossow argues that the trial court erred in placing the burden of proof on her
instead of on DHS by stating in its order that she failed to prove that she was clean and sober
or that she had a stable home or employment. She correctly points out that the party seeking
termination carries the heavy burden of proving by clear and convincing evidence that
parental rights should be terminated. Cobbs v. Ark. Dep’t of Human Servs., 87 Ark. App. 188,
189 S.W.3d 487 (2004). We do not, however, agree that the circuit court actually placed the
burden of proof on Ms. Schossow. The court’s order expressly stated that DHS had proven
its case by clear and convincing evidence. As explained below, DHS satisfied its heavy burden
of proof.
Ms. Schossow next argues that the trial court erred in finding grounds for termination
because she completed inpatient drug treatment in March 2007; obtained a job in May 2007,
where she was still working at the time of the hearing; had consistently tested clean for drugs
except for one time in April 2007; had stayed “pretty well in contact” with her caseworker;
and had completed parenting classes. She also notes that the CASA report introduced at the
permanency-planning hearing recommended that she be given more time. Further, she argues
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that the court had not ordered her to complete a second inpatient drug program after she tested
positive in April; she states that the caseworker had simply suggested that she do so. Ms.
Schossow testified that she chose not to complete that second program because she wanted
to get a job (as ordered by the court), which she did.
Regardless of whether the court ordered Ms. Schossow to complete a second drug
program, it was undisputed that she tested positive for cocaine after leaving a drug-treatment
program. The trial court could, therefore, determine that her treatment was not successful and
that she had not done whatever it took to overcome her drug problem. Additionally, Ms.
Schossow lived in at least six places during this proceeding; did not fully cooperate with
DHS’s attempts to administer drug tests to her; and worked for only four or five months. The
evidence, therefore, clearly demonstrated that, despite DHS’s efforts to rehabilitate Ms.
Schossow, she did not correct the conditions that caused S.C. to be removed from her care.
Affirmed.
PITTMAN, C.J., and VAUGHT, J., agree.
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