NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CA00-1209

APRIL 18, 2001

CHERYL LARGENT

APPELLANT APPEAL FROM THE BENTON

COUNTY CHANCERY COURT

v. [J-98-189]

DEPARTMENT OF HUMAN HONORABLE JAY T. FINCH,

SERVICES CHANCERY JUDGE

APPELLEE

AFFIRMED

Appellant Cheryl Largent appeals from an order of the Benton County Chancery Court terminating her parental rights to her child, C.L. On appeal, appellant argues that the evidence adduced at the termination hearing is insufficient to justify a termination of her parental rights. We affirm.

Appellant's minor child was born on November 1, 1997. On April 27, 1998, C.L. was delivered to appellee Arkansas Department of Human Services ("DHS") by two women who stated that appellant had left C.L. in their care. April Laney and Jamie McDonald stated that they could not care for C.L. and were concerned about C.L.'s health because he had severe diaper rash and a possible ear infection in both ears. Ms. McDonald stated that on one occasion, she observed appellant shake C.L. when he cried, and heard appellant statethat if C.L. did not stop crying, appellant would throw the child out of the window. Relying on this information along with evidence that appellant was known to leave C.L. with strangers for unspecified periods of time, DHS filed a petition for emergency custody of C.L. On April 29, 1998, the chancery court entered an order granting DHS emergency custody of C.L. and finding that there was probable cause to believe that C.L. was dependent/neglected. An adjudication order was entered on June 3, 1998, in which the trial court continued custody of C.L. in DHS. The trial court stated that the goal in the case was reunification and that DHS should develop a case plan to achieve that goal.

Following a review hearing held October 15, 1998, C.L. was returned to appellant's custody. The chancellor ordered appellant to maintain employment, provide a safe and stable home for C.L., and become the sole adult resident of that home, unless agreed to by the parties. The chancellor also ordered DHS to maintain a protective services case on appellant and C.L. for a six-month period. After a second review hearing held April 14, 1999, the trial court found that C.L. remained in need of DHS's services, but allowed C.L. to remain in appellant's custody.

In May 1999, a petition for emergency change of custody was filed by DHS. The petition alleged that C.L. was dependent/neglected and that the immediate removal of C.L. from appellant's custody was necessary to protect the health and physical well-being of the child. In an affidavit in support of the petition, Sheree Miller, family service worker for DHS, stated that on April 16, 1999, she attempted to visit appellant and C.L., but was unable to see them because they were not home. Miller stated that on May 3, 1999, she visitedappellant's former fiancé, Randall Frasier, who informed her that appellant was not feeding or bathing C.L. and that appellant was using marijuana. Miller stated that one week later, she located appellant at an apartment different from the residence where appellant lived at the last review hearing. Miller stated that when she located appellant, appellant became upset and hostile and asked if she was going to be tested for drugs. At that time, Miller arranged for appellant to submit to a drug screen with the Benton County Juvenile Probation Office. Following the drug screen, appellant tested positive for marijuana and Miller took a 72-hour hold of the child. Thereafter, DHS filed a motion recommending that no reunification services be provided to reunite C.L. with appellant. An emergency order was entered on May 10, 1999, placing custody of C.L. with DHS.

A probable cause order was entered May 14, 1999. In the order, the trial court found that probable cause existed to continue custody of C.L. in DHS, and ordered DHS to develop an appropriate case plan for appellant and C.L. with the goal of the plan to be reunification.

At an adjudication hearing held on June 7, 1999, Sheree Miller testified that when custody was returned to appellant in October 1998, DHS maintained a protective services case for appellant and C.L. Miller stated that, at that time, the following services were offered to appellant: parenting skills, homemaker services, referral to a support group for women, referrals for housing, transportation, and assistance with applying for food stamps and Medicaid. Miller testified, however, that appellant had not complied with the chancery court's previous orders to maintain stable employment and housing for at least six months. Miller testified that over the last six months, appellant had moved six times and had notifiedher of only one of the moves. She testified that appellant had also been employed five or six times in the last six months and that she felt that C.L. was not being fed. Miller testified that appellant had not provided a stable babysitter for C.L., and that appellant had not filled out an application for Medicaid and food stamps. Miller further testified that appellant had not attended counseling.

There was also evidence from Randall Frasier, who testified that during the two and one-half month period appellant and C.L. lived with him, appellant smoked marijuana in the presence of the child and kept the child out "all hours of the night." Frasier testified that while appellant lived with him, he was not concerned about C.L.'s health because he and his roommate, Dwayne Young, would usually give the child a bath and feed him. Frasier stated, however, that he was concerned about the care appellant provided C.L. when he didn't assist her. Mylos Santos, social service aide for DHS testified that on May 13, 1999, he was asked to supervise visitation between appellant and C.L. He testified that during the visitation, he heard appellant say, "Don't hit mommy," and then hit C.L. on the face. Santos testified that C.L. did hit appellant first.

Appellant testified that she lived with Cheryl Campbell, Kevin Campbell and his wife, Anne Campbell, but that she and Cheryl Campbell were looking for a place to live on their own. She testified that although she and Ms. Campbell had arguments, Ms. Campbell always helped her and C.L. if they needed anything. Appellant testified that C.L. considered Ms. Campbell as his grandmother and that C.L. and Ms. Campbell shared a close bond. Appellant testified that she was fired because Sheree Miller had come to her job during herwork shift and informed her that she had taken C.L. away from her. Appellant testified that she then was hired by the Village Inn on the following day. Appellant admitted that during the last six months, she worked at Village Inn, Ryan's, EZ Mart, and Amarillo Grill, and that she was fired from all jobs except Village Inn. She also testified that she lived in three different places over the last six months. Appellant explained, however, that she tried to inform DHS of those moves by leaving messages for Ms. Miller. Appellant testified that she was denied Medicaid and food stamps because she refused to allow a paternity test to be performed on C.L., and that she refused to allow the paternity test because C.L's biological father was abusive. She testified that she did not attend counseling because she did not have transportation to make the appointment in Springdale. Appellant further testified that she did not use drugs with Mr. Frasier and that she tested positive for marijuana because she was riding in a car with friends who were smoking marijuana. Appellant admitted that she smoked marijuana five years prior to the hearing and that she had previously used "mini-thins." She testified, however, that as "as far as [she] knew, [C.L.] was not present when marijuana was used in the Frasier home."

Cheryl Campbell testified that appellant was presently living with her and that she provided child care services for appellant. Ms. Campbell testified that although she was disabled, she would be able to care for C.L. if the chancery court returned C.L. to appellant. Ms. Campbell admitted that she had concerns about the care appellant provided to C.L. prior to his removal from appellant on May 7, 1999, but stated that those concerns stemmed from the fact that appellant was "working so much."

Following the adjudication hearing, the chancery court found that C.L. was dependent/neglected and that the return of C.L.'s custody to appellant was contrary to the welfare of the child. The trial court stated that the goal of the case was reunification, and denied appellee's motion for "no reunification services." The trial court ordered appellant to submit to a psychological evaluation, attend parenting classes and counseling, submit to random drug tests, and inform DHS of her continued employment and housing. It also ordered appellant to establish the paternity of C.L. The chancery court further ordered DHS to assist appellant with transportation to counseling as needed, visit appellant's home once a week, and conduct random drug tests at least twice per month. The trial court noted that by an agreed order, the parties could initiate a trial placement of C.L. with appellant, once the services provided to appellant were ongoing.

At a review hearing held August 31, 1999, evidence was presented that since the June 7, 1999, hearing, appellant had tested positive on two out of six random drug tests. At the hearing, Sheree Miller testified that over the last two and one-half months, appellant had moved to three homes and had informed her of only one of those moves. Miller testified that appellant was currently living in a three-bedroom duplex with six other people. Miller testified that appellant was fired from Village Inn on the day following the June 7 adjudication hearing, and that appellant was later hired and discharged by Applebee's. Miller testified that appellant was currently babysitting her boyfriend's two children and a previous neighbor's child. Miller testified that C.L. had been in foster care for nine months and that she recommended that a permanency planning hearing be scheduled in threemonths. Miller stated that she did not recommend trial placement of C.L. with appellant because appellant's current home offered inadequate space and included a convicted felon. Miller also testified that appellant had not established a stable home, job, or relationship. Miller pointed out that appellant had participated in parenting classes, drug screens, a psychological evaluation, and the establishment of paternity, but noted that appellant had not completed the parenting classes.

Appellant testified that she lived in her present residence for nearly a month and that she left messages with Miller's office informing Miller of her move from Ms. Campbell's apartment. Appellant testified that she was expecting a new child with her boyfriend and that she was earning money by babysitting. She testified that her boyfriend was willing to provide for her, C.L., and her unborn child, and that her boyfriend paid rent and other bills. Appellant testified that she could provide a safe home for C.L., and that she, her boyfriend, and their children could move into a three-bedroom home if they needed to do so. Appellant testified that she was presently enrolled in a beauty school and that she was waiting for a scholarship "to come through." She admitted that she and her boyfriend were still married to other people and that she had been living with her boyfriend since July 8, 1999. Appellant testified that she attended two parenting classes and that the parenting classes she missed dealt with teenagers, sex, and curfew.

Other evidence admitted at the hearing included a psychological evaluation of appellant performed August 20, 1999, a drug-assessment evaluation of appellant performed July 30, 1999, and two developmental evaluations of C.L. performed in June and July of1999. The results from the psychological evaluation showed that appellant appeared to be a "chronically angry person" who seemed to make "little effort" in achieving goals. Appellant's clinical psychologist, Dr. Martin T. Faitak, noted that although appellant had good communication skills, she had difficulty with accepting responsibility for her choices. Dr. Faitak stated that appellant had a need to "control and dominate" in social situations and that she "may have difficulty dealing with problems because of an unstable mood, low frustration tolerance, and inadequate conflict resolution skills." Dr. Faitak stated that before C.L. is returned to appellant, it would be important for appellant to maintain a stable relationship, job, and housing. The results of appellant's drug-assessment evaluation indicated that appellant was not a good candidate for drug treatment due to number of factors, including appellant's "tendency to stray from the truth by either exaggeration of events or fabrication." In the developmental evaluation of C.L. performed June 1, 1999, Dr. Jim Levernier found that C.L. had "mildly delayed cognitive and motor development with moderately delayed receptive and expressive language." Dr. Levernier also found that C.L.'s adaptive behavior skills were moderately low and that C.L. had "excess drooling of unknown etiology."

Following the hearing, the trial court ordered that custody of C.L. should remain in DHS and that the goal of the case would continue to be reunification. A review hearing was held on November 30, 1999, to establish a visitation schedule between appellant and C.L. during the holidays.

At a permanency planning hearing held on March 7, 2000, DHS family serviceworker, Joan Platter, recommended the termination of appellant's parental rights. She stated that the goals of stable housing, stable employment, and counseling had not been met by appellant. Platter testified that shortly after the November 30 review hearing, appellant moved in with her friend Melissa Hicks. She testified that one month later, appellant returned to a home where she had lived previously with a former fiancé. Platter testified that the Hicks home did not have any heating, and that the home where appellant currently resided had an open heating unit that sat on the floor. She testified that since the last court date, appellant had been employed with Bobbi Sox, a Wal-Mart warehouse, and two Waffle House locations. Platter did not consider appellant's housing and employment history as stable and noted that appellant did not attend her last counseling appointment. She testified that although appellant was prescribed Paxil by a medical physician, appellant had not taken the drug as required. Mary Lou Kolb, a CASA worker, testified that since April 1998, appellant had lived in fifteen residences and worked at eleven different jobs. Ms. Kolb testified that appellant was not taking her medication because appellant stated that she was pregnant, and that appellant was not attending counseling because appellant stated that she was involved in a stable relationship.

Appellant testified that she had undergone six drug screens, including one on the day of the hearing, and that she had tested negative on all of them. Appellant testified that she had worked with a counselor for two or three months and that the counselor informed her that she could be helped but not cured. Appellant stated that she was "willing to put in whatever time it t[ook]" to be helped. Appellant testified that her parental rights wereterminated with other children, and that she did not want her parental rights taken in this case.

A termination hearing was subsequently held on June 6, 2000. Joan Platter testified that appellant had not been compliant with the requests made by the trial court and that appellant had not maintained stable housing and employment. She testified that since the May 7 review hearing, appellant has lived in five different residences and has not contributed financial support to C.L. Platter testified appellant no longer worked at Waffle House and that appellant currently worked at Model Laundry. Platter noted that although appellant had complied with visitation and tested negative for drugs since August 1999, appellant did not possess the skills necessary to provide for C.L.'s medical needs. Platter testified that appellant was not consistent with participating in individual and group therapy and that appellant had not substantially complied with the requirements necessary to achieve to the goal of reunification. Platter believed that DHS could find an adoptive home for C.L. if parental rights were terminated and recommended termination, in spite of her acknowledgment that appellant had successfully completed parenting classes and showed love for C.L.

Susan Skelton, an employee of SCAN Volunteer Services, testified that she provided lay therapy services and in-home parenting classes for appellant since August 1999. She testified that although appellant accomplished some of the tasks in her case plan, appellant had not been able to accomplish the task of staying in the same place and keeping the same job. Skelton stated that stability is an important factor in allowing a child to growappropriately into a productive adult and noted that even though "appellant knows what she needs to do as a parent and can verbalize what needs to happen . . . her actions interfere with the words." Skelton believed that the goal of reunification could not be achieved in this case.

Appellant testified that she stayed in a one bedroom apartment with two beds and that she had money to afford the apartment. She testified that she could walk to her present job at Model Laundry and that she could arrange day care for C.L. during her work hours. Appellant stated that she has been able to address her problems since she has been attending regular counseling and taking medication on a consistent basis. She stated that while C.L. has been in foster care, she has bought him a teddy bear and given him such things as toys, cookies, candy, and diapers. Although appellant acknowledged that she has lived in several places and held several jobs, she stated that she was always able to provide for C.L. Appellant admitted that she tested positive for marijuana on the morning of the termination hearing, but denied that she had taken any drugs except Paxil and Tylenol PM.

After the hearing, the trial court terminated appellant's parental rights of C.L. The trial court noted that although the instability of appellant in providing a stable home environment and employment "is not by itself indicative of anything," it found that appellant's "overall history of instability" warranted the court to find her unfit. In so finding, the chancellor made the following remarks:

The Court finds that those issues of instability which were issues in the

beginning of this case, specifically, homelessness, being without a job at times,

numerous relationships, inappropriate care givers, evidence of medical neglect,

substance abuse and threats to the child, continue to be the driving forces in

this case. This is evidenced by the fact that a trial placement with the mother

ended due to the fact that she once again had no stable place to live, no

consistent job, was leaving the child inappropriately and was generally

suffering from traits of her Borderline Personality Disorder. Furthermore,

the Court finds that the child has remained outside of the parents home

for thirteen (13) months and the conditions which caused the removal of

the juvenile have not been remedied by the parents.

On appeal, appellant argues that there was not sufficient evidence to terminate her parental rights. Appellant argues that appellee was required to prove by clear and convincing evidence that the termination of her parental rights was in the best interest of the child, including the consideration of the factors listed under Ark. Code Ann. § 9-27-341 (b) (3) (B).

Arkansas Code Annotated section 9-27-341 requires that an order terminating parental rights must be based on clear and convincing evidence. Subsection (b)(3)(B) sets forth the grounds for terminating parental rights, which include in pertinent part:

(i)(a) That the juvenile has been adjudicated by the court to be dependent-

neglected and has continued out of the home for twelve (12) months, and

despite a meaningful effort by the department to rehabilitate the home and

correct the conditions which caused removal, those conditions have not

been remedied by the parent.

. . .

(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 proved significant

material support in accordance with the parent's means or to maintain

meaningful contact with the juvenile.

. . .

(vii)(a) That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors to rehabilitate the parent's circumstances which prevent return of the juvenile to the family home.

When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the inquiry on appeal is whether the chancery court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Jones v. Dep't of Human Servs., 70 Ark. App. 397, 19 S.W.3d 58 (2000). Clear and convincing evidence is defined as that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. The appellate court will defer to the trial court's evaluation of the credibility of the witnesses. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d (1999).

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. Baker v. Arkansas Dep't of Human Servs., 340 Ark. 42, 12 S.W.3d 201 (2000). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id.

Here, appellant's repeated failure to comply with the chancery court's orders, which were designed to remedy the problems that warranted removal of the child in the first place, goes directly to the chancery court's finding that C.L.'s health, welfare, and safety would bebest served if custody were not returned to appellant. Although appellant argues there was no evidence presented that she willfully failed to provide material support for C.L., we note that the trial court's basis for terminating parental rights was appellant's overall history of instability. Appellant has failed to show a consistent and meaningful effort to maintain employment and housing and has only shown sporadic attempts to comply with previous orders of the trial court. Furthermore, appellant's testimony regarding her attempts to comply with her case plan conflicted with evidence presented by her psychologist, drug therapist, and caseworkers. Although appellant argues that no meaningful efforts were made by DHS to assist with her borderline personality disorder and substance abuse, there was testimony presented by several DHS workers who stated that the necessary services needed to reunify appellant with C.L. were offered to appellant. A review of the record combined with the deference of the credibility of the chancellor establishes that the chancellor's finding of terminating appellant's parental rights was not clearly erroneous.

Appellant also argues that the termination was not proper because there was no evidence presented in regard to C.L.'s likelihood of finding a successful placement for adoption. However, because this argument was not presented to the chancellor at trial, we need not address its merits on review. See Ullom, supra. Even if we considered the merits of the argument, there was ample testimony presented by one DHS worker who stated that C.L. would likely be adopted if parental rights were terminated. Based on the foregoing, we affirm the chancellor's order terminating appellant's parental rights.

Affirmed.

Hart and Baker, JJ., agree.