ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION IV

ETHEL M. ROSIE WILKINS

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA 00-1170

APRIL 25, 2001

APPEAL FROM THE BAXTER COUNTY CHANCERY\JUVENILE COURT

[NO. J1998-121]

HONORABLE GARY BERT ISBELL,

JUVENILE JUDGE

AFFIRMED

Appellant brings this appeal challenging the decision of the Chancery Court of Baxter County, Arkansas, Juvenile Division. On May 16, 2000, the Chancery Court entered an order terminating appellant's parental rights. Appellant raises two points on appeal. First, appellant argues that there was insufficient evidence to support the findings of the Chancery Judge. Second, appellant argues that Arkansas Department of Human Services (ADHS) failed to exhaust all available alternatives before seeking termination of appellant's parental rights. We affirm.

The appellant, Ethel M. "Rosie" Wilkins, has five children. H.W. and S.W. are appellant's oldest children. Their father is Stanley Ray Wilkins. Appellant has a third child by Mr. Wilkins, E.W., born April 6, 1988. Roger Sandman is the father of appellant's two

youngest children, J.S., born May 22, 1996, and D.S., born February 2, 1998. The threeyoungest children, E.W., J.S., and D.S., are the subject of this appeal.

J.S. first came into ADHS custody in November 1996 on allegations of abuse by Roger Sandman; however, he was returned to appellant on a trial basis only after it was determined that it was safe for him to return home. In January 1998, allegations of abuse were substantiated against Roger Sandman with appellant's daughter H.W. On July 16, 1998, police were called to the home of appellant and Roger Sandman for a domestic disturbance. The police arrested Roger Sandman, and D.S. was taken to the hospital for injuries inflicted by Mr. Sandman. At the hospital, doctors diagnosed D.S., then two months old, with Shaken Baby Syndrome. Witnesses testified that Sandman held D.S. up by the head, as if he were holding a basketball, allowing his full body to hang in mid air, and then grabbed him around the neck shaking him furiously and threatening to kill him. During investigation by a service worker of appellant's home the next day, it was discovered that J.S. had previously been taken for a physical exam following the discovery of bruising around his anus. A rape kit was conducted. As a result of the investigation of the July 16^th incident, all five of appellant's children were taken into custody by ADHS. The eldest two, H.W. and S.W., were returned to the custody of appellant; however, E.W., J.S. and D.S. were placed in foster care after testimony showed them to be dependent-neglected. They were placed back in the custody of appellant, only to be returned to the custody of ADHS where they remained briefly for one week in foster care. Once again the three children were returned to appellant. Shortly following, they were returned to the care of ADHS yet again, due to repeated reports of lack of supervision by appellant. They have remained in fostercare since January 1999.

Appellant was ordered to follow the ADHS case plan for reunification and to provide child support for the children while they were in the state's custody. The plan consisted of five key requirements: 1) appellant was to complete substance abuse treatment or attend regular alcohol counseling, 2) appellant was given visitation and contact with her children, 3) appellant was required to attend parenting classes, 4) appellant would remedy the uncleanliness and maintenance of her home, and 5) appellant would maintain steady employment. Although appellant attempted to meet the goals of her case plan, the testimony demonstrated she failed to do so.

On July 21, 1999, ADHS filed a petition to terminate appellant's parental rights as to J.S. and D.S. An amended petition was filed on October 7, 1999, to include E.W. On May 16, 2000, the court entered an order terminating appellant's parental rights finding that by clear and convincing evidence it was contrary to the children's best interest that they be returned to appellant's custody; that the children had resided outside the home in excess of one year; that despite meaningful efforts by ADHS to rehabilitate the home and correct the conditions which caused removal, those conditions had not been remedied; that appellant had willfully failed to provide support or maintain meaningful contact with the children; and that reasonable efforts had been made by ADHS to reunite the family. From that order comes this appeal.

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. Malone v. ArkansasDept. of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). In making such determination, this court must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. 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 and firm conviction that a mistake has been committed. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999).

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d

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²··Appellant's parental rights were terminated pursuant to Ark. Code Ann. § 9-27-341 (b)(3)(B) (Supp. 1999) which provides in pertinent part:

(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 material support in accordance with the parent's means or to maintain meaningful contact with the juvenile.

Appellant first argues that there was insufficient evidence for the Chancery Court to terminate her parental rights according to the statute. Specifically, appellant argues that evidence presented at the hearings demonstrated that appellant met all the objectives by ADHS as set out in the case plan. We disagree.

Appellant's case plan provided that she was to successfully complete substance abuse treatment or attend regular alcohol counseling. Ken Kabiniski, an alcohol and drug abuse counselor at O.M.A.R.T., testified that at the time appellant entered treatment she had an eighteen-year history of alcohol use and a ten-year history of marijuana use. Appellee concedes that appellant completed the first phase of her treatment; however, Mr. Kabiniski testified that when a patient has such a history of alcohol and drug use that the first phase of treatment only to helps the patient discover he or she has a problem. Appellant failed to complete any treatment after this first phase despite recommendations that she receive follow up at Ozark Counseling Services on an outpatient basis and attend a minimum of three AA/NA meetings per week. Mr. Joseph Dunn, a family service worker, testified that although appellant made progress in the beginning, she failed to fulfill the recommendation to attend the AA/NA meetings. Moreover, appellant was required to submit to drug testing. Sara Allen, a family services worker specialist, testified that appellant failed at least one integrity check; an integrity check is done by the lab to determine if someone has been pushing fluids through his or her system. When the integrity check is failed, the drug test is considered failed. Finally, appellant was arrested on drug charges along with her son, S.W., in January 1999 when drugs were found in her home. She later plead guilty to this charge. The case plan further provided for visitation and contact between appellant and her children. Both Sara Allen and Joseph Dunn testified that appellant was fairly consistent with her visitation, missing only for good reasons. The visitation was very restricted in the beginning; however, after appellant illustrated her ability to handle visitation, the requirements were relaxed somewhat. Initially, appellant's weekly visitation consisted of two visits. However, Kathleen Maples, social service aid, testified that visits were reduced due to the emotional outbursts of the children following the visitations. After reducing the number of visitations per week, the behavior subsided. Judy Sweet, a clinical social worker with the pediatric day clinic, testified that she has worked with both J.S. and E.W. J.S. suffers from raging behavior, defiance, irritability, and hypervigilance. E.W. suffers fromdepressive symptoms and adjustment issues. During Sweet's work with both of the boys, appellant was invited to attend sessions but she failed to participate in the sessions. Furthermore, Penny McLean testified that she has been the foster parent for E.W., J.S. and D.S. since January 1999, and appellant has made little to no effort to contact them at her home.

Appellant's case plan also required that she attend parenting classes. Joseph Dunn testified that although appellant attended parenting classes and demonstrated some improvement, he was still concerned about appellant's lack of supervision. One example of appellant's inability to tend to her children's needs was that appellant would not tend to D.S. when his diaper was dirty or he was crying until directed to do so by Mr. Dunn. Throughout the history of this case, consistency was a concern of Mr. Dunn's. He admits that at times appellant demonstrated improvement; however, Kathy Maples testified that she would have reservations about leaving the children with appellant for more than a couple of hours. Any time the children were returned home to appellant, reports were consistently made to ADHS about the children being left unattended. Sara Allen repeated the concern that appellant did not supervise the children when they were returned to appellant's care.

Another portion of appellant's case plan provided that appellant remedy the uncleanliness and maintenance of her home. Joseph Dunn testified that the home was dirty and dangerous for young children, and the condition of the home constituted environmental neglect. The home was often in disarray, had a non-working bathroom, and there was a broken window in E.W.'s bedroom. Furthermore, marijuana was found on top of E.W.'s dresser in a bedroom he shared with S.W., his older brother. Kathy Maples testified that thehome was never child-proofed, which caused her concern for the safety of the children. Currently, appellant lives in a trailer with two working bathrooms; Kathy Maples described the condition of the home as "fair."

The final portion of appellant's case plan required that she maintain steady employment. Appellant testified that her last employment was as a certified nurse's aid. She has held this position for five months. Appellant testified that, prior to obtaining her current employment, she worked for Country Kettle as a dishwasher and a cook and for Couch's for eight months doing the same kind of work.

The conditions that caused the children's removal were the injuries resulting from abuse caused by Roger Sandman to H.W., J.S. and D.S. and the lack of protection by appellant; the fact that appellant did not complete her substance abuse treatment program by attending regular alcohol counseling after an eighteen-year history of alcohol abuse and a ten- year history of marijuana use; the fact that appellant has made little effort to participate in therapy sessions; the fact that the children were repeatedly left unsupervised when appellant was given another chance to care for them; the fact that the home was dirty and dangerous for young children; and that appellant did not maintain a steady job as required by the case plan. Furthermore, testimony showed the three youngest children had been in ADHS custody since January 13, 1999, fulfilling the specific statutory requirement that the juveniles live outside the home for a period of twelve months. Further, the testimony showed that appellant failed to provide material support to the children. Penny McLean, the children's foster parent, testified that appellant would occasionally give one of the childrena gift on his birthday, but that was the extent of support from appellant.

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. J.T. v. Arkansas Dep't. of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Id. This is not to say, however, that parental rights should be allowed to continue to the detriment of the child's welfare and best interests. Id. The best interest of the child is the primary consideration in termination of parental rights cases. Ark. Code Ann. § 9-27-341(b)(3)(A).

Upon reviewing all of the evidence, we are not left with a definite and firm conviction that ADHS failed to demonstrate by clear and convincing evidence that appellant failed to correct the conditions causing the children's removal. Although appellant has attempted to remedy the conditions causing her children's removal, she has repeatedly failed to completely do so. The court stated in particular that:

"These children have been in foster care. The youngest one has been in foster care since 1996, the next two siblings have been in foster care since 1998 and 1999. [Appellant] would make progress and then she would slip. We would try trial placements and things would not work. Even during trial placements the department would maintain the services being offered. Sometimes you can spoon feed people and they can pick up and do on their own. There are other families that can not."

The court further stated:

"The thing that bothers me the most is the testimony from Ms. Sweet and from the foster parent. These people wanted [appellant] to be involved. They invited [appellant] to be involved and [appellant] decided not to become involved. I just don't know whether I can visit that situation again with these three boys."

Appellant has demonstrated that she has attempted, but failed numerous times to meet the requirements of her case plan. We find there is sufficient evidence to support the findings of the Chancery Judge.

Appellant's second argument on appeal is that ADHS did not exhaust other available alternatives before seeking termination of appellant's parental rights. Specifically, a protective services plan was never implemented in this case. Under a protective services plan, the children would have been returned to appellant along with weekly visits by aides. Joseph Dunn testified that a protective services plan was not offered while he was involved with appellant's case due to the environmental problems and the risks involved in returning the children to an unsafe situation. Throughout the history of this case, appellant has been given numerous opportunities to demonstrate her abilities as a parent and to remedy the conditions which resulted in the removal of her children. Since 1996, when J.S, was first removed from the home, the children have been in and out of appellant's custody repeatedly, always to be returned to ADHS. ADHS has attempted reunification several times to no avail. As a result, the Chancery Judge appropriately terminated appellant's parental rights.

Although appellant made some attempts to comply with the case plan set out by ADHS, the primary concern is for the best interest of the children. The record is replete with evidence that appellant continually chose to put her own interests above those of her children. Three ADHS service workers concluded that the children should not be returned to the custody of appellant. Since the question turns largely upon the credibility anddemeanor of witnesses, this court defers to the superior position of the chancellor to make such determinations. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). Given our deferential standard of review, we cannot say that we are "left with a definite and firm conviction that a mistake has been made." Gregg v. Arkansas Dep't. of Human Servs., 58 Ark. App. 337, 952 S.W.2d 183 (1997). Hence, we affirm the Chancellor's decision to terminate appellant's parental rights.

Hart and Neal, JJ., agree.