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BRYANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, 2012 Ark.App. 491 (2012)

Court: Court of Appeals of Arkansas Number: inarco20120919011 Visitors: 5
Filed: Sep. 19, 2012
Latest Update: Sep. 19, 2012
Summary: LARRY D. VAUGHT, Chief Judge. Appellants Maria Bryant and James Jackson appeal from an order of the Conway County Circuit Court terminating their parental rights to their child, S.J. On appeal, appellants argue that there was no substantial evidence that the return of S.J. to them would result in harm or that they failed to correct the conditions that caused their child's removal. Appellee Arkansas Department of Human Services (DHS) responds that there was clear and convincing evidence supporti
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LARRY D. VAUGHT, Chief Judge.

Appellants Maria Bryant and James Jackson appeal from an order of the Conway County Circuit Court terminating their parental rights to their child, S.J. On appeal, appellants argue that there was no substantial evidence that the return of S.J. to them would result in harm or that they failed to correct the conditions that caused their child's removal. Appellee Arkansas Department of Human Services (DHS) responds that there was clear and convincing evidence supporting the termination. We affirm.

We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. M.T. v. Ark. Dep't of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). 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. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Our inquiry on appeal is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).

The current case began when DHS family-service worker, Magean Brents, made a routine visit to appellants' home on September 7, 2010. At the time, DHS had an open protective-services case on the family and was checking to ensure that S.J.'s needs were being met. At the time, the family lived in a small camper trailer, which Brents found to be unclean. The refrigerator the family used was located outside of the residence and was held together by a bungee cord. There were dirty dishes on the counters and in the sink and an open liquor bottle within the child's reach. There were indications of drug abuse as well. In fact, Jackson admitted that he used marijuana only three weeks before the visit and that he had previously been incarcerated for "public intoxication, disorderly conduct, drunk on highway, and possession of THC."Also, Brents reported that Jackson became hostile and had three male friends come to the home to "back up" his statement that Brents was not going to take S.J. anywhere. One of the men asked Brents to leave.

Based on this confrontation, the home conditions, and the drug-and-alcohol use by appellants, Brents believed S.J. to be in imminent danger at the time of the home visit. S.J. was placed in DHS custody via an emergency order entered on September 10, 2010. Appellants stipulated that the minor was dependent-neglected, and the goal of the case was set as reunification. Appellants were ordered to submit to random drug testing, complete parenting classes, obtain and maintain stable housing and gainful employment, attend counseling, submit to a psychological evaluation and a drug-and-alcohol assessment, and complete all other recommendations.

A review hearing was held in March 2011, and appellants were found to have not complied with the case plan. Specifically, the court determined that S.J. could not return to appellants' custody because both parents still took multiple medications that prevented them from properly caring for S.J. The court also found that Bryant failed to attend counseling on a consistent basis and was financially unstable and unable to care for S.J. The court also noted that Jackson was inconsistent with his counseling attendance and refused to enroll in inpatient drug treatment. The court also determined that Jackson was financially unstable and unable to care for S.J.

Additionally, at this hearing, the parties' psychological evaluations were admitted into evidence. The exams revealed that appellants had been in a committed relationship for twenty years but never married (because Jackson had failed to divorce his second wife). During appellants' relationship, they had two children—eighteen-year-old Jessica (DOB January 20, 1992) and three-year-old S.J. (DOB July 23, 2007). Appellants described their older child, Jessica, as mentally retarded. Bryant further described her daughter as a "compulsive liar." According to Bryant, while in a motel room in Wyoming, Jessica became pregnant by a "stranger."1 When Jessica was four years old, she was in foster care for approximately four months due to burns she had sustained. Appellants denied any knowledge of the source of the burns. Jessica was again placed in foster care at age fifteen due to environmental neglect.

Despite their prior shortcomings, by the June 2011 review hearing, appellants were found to have partially complied with the case plan. As a result, a trial home placement was authorized to begin once a transition plan, utilizing intensive family services (IFS), was in place. This home placement began on July 7, 2011. However, on August 20, 2011, S.J. was returned to DHS after Bryant was arrested for domestic battery after a neighbor called police to report "someone beating a handicapped girl with a stick." Bryant admitted striking Jessica, but claimed that it was in self-defense. Jessica had "considerable injuries on her back," and one officer could smell alcohol on Bryant's breath. She then tested over twice the legal limit. The record showed that following the incident, Bryant had one wound, "a small bruise about half-inch diameter" on her right arm. Bryant claimed that Jessica had caused this wound by twisting Bryant's arm.

On September 22, 2011, the court changed the goal of the case from reunification to adoption, authorizing termination of appellants' parental rights. DHS filed a termination petition on December 12, 2011. After approximately sixteen months, on January 31, 2012, a termination hearing was held. The court ordered the termination of appellants' parental rights to S.J. A timely notice of appeal was filed by appellants on February 27, 2012. In their appeal, they claim that there was no substantial evidence to support the court's finding that if S.J. were returned to them it would likely result in harm. Appellants also contend that the court's finding that they had failed to correct the conditions that caused S.J.'s removal was not supported by the evidence.

In cases where the issue is one of termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Trout v. Dep't of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004); Ullom v. Ark. Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being 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). On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001); Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000).

Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002), an order terminating parental rights must be based on clear and convincing evidence. Larscheid v. Ark. Dep't of Human Servs., 343 Ark. 580, 36 S.W.3d 308 (2001). 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. Baker v. Ark. Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). 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 and firm conviction that a mistake has been made. Dinkins, 344 Ark. at 213, 40 S.W.3d at 291. In resolving the clearly-erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Baker, 340 Ark. at 48, 8 S.W.3d at 503.

The question here is whether the trial court clearly erred in finding that there was clear and convincing evidence of facts warranting termination of appellants' parental rights. In the present case, the trial court terminated appellants' parental rights pursuant to § 9-27-341 based on three different factors: (1) the child had been out of the home for at least twelve months and, despite meaningful efforts by DHS to rehabilitate the home and correct the conditions that caused removal, those conditions had not been remedied; (2) appellants manifested an incapacity or indifference to remedy the conditions that led to the removal of their child; and (3) continuing to offer services to this family was unlikely to result in reunification. The trial court also found that

continuing contact with the juvenile and the parents could harm the juvenile's health and safety. Specifically, upon returning from the trial home placement, the juvenile had regressed greatly in her behavioral health. She was uncontrollable: biting, kicking, etc. Only in the last two months has she been stabilized in her therapeutic foster placement. The regression occurred after only five weeks in her parents' home. Mother and father are not fit and proper parents for the juvenile.

Regarding the first factor, it was undisputed that the child had been in the custody of DHS for sixteen months. Although the child had been returned to the home on a trial basis, this was merely a test placement and it lasted for only a month. Furthermore, it was not until the end of this case, with the termination hearing looming near, that appellants began to take active steps to comply with the case plan. However, the recent improvements did not negate appellants' history of instability and drug and alcohol abuse. Notably, both parents admitted that they continued to drink during the pendency of the dependent-neglect case, and an officer testified that appellant Bryant was intoxicated during the battery incident. Furthermore, appellants had a history of extreme mistreatment of their older daughter Jessica. While the trial court was careful to not base its order on the appellants' past behavior unrelated to S.J., that behavior was a valid indicator of likelihood for success and stability for S.J. if she had been left in appellants' care. Stacy Helton, S.J.'s therapeutic foster-care manager from Counseling Associates, also testified that S.J. was adversely affected by the second removal. When S.J. was removed from her parents' home the second time, she returned to foster care with extreme aggression and was "a totally different child." Helton testified that it took almost five months to stabilize her behavior.

The record contains ample evidence to support the trial court's conclusion that appellants failed to remedy the situation that led to the removal of S.J. and that S.J.'s continued instability was hazardous to her well-being. As such, there is clear and convincing evidence to support the termination of appellants' parental rights to S.J., and we affirm.

Affirmed.

GLOVER and MARTIN, JJ., agree.

FootNotes


1. Jessica's child was born on August 11, 2010, but was given up for adoption.
Source:  Leagle

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