ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

NOT DESIGNATED FOR PUBLICATION

DIVISION II

TERRY BLAND

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA 00-1335

May 30, 2001

APPEAL FROM THE CHANCERY COURT OF SEBASTIAN COUNTY, ARKANSAS

[7-97-319]

HON. MARK HEWETT, CHANCERY JUDGE

AFFIRMED

Appellant, Terry Bland, argues that the chancellor erred in finding sufficient evidence existed to support a termination of his parental rights. We disagree and affirm the decision of the chancery court.

On May 12, 1997, the Department of Human Services (DHS) filed a petition for emergency custody of minor children K.B., born December 26, 1994, and B.W., born December 4, 1996. The petition was filed as a result of a seventy-two hour hold placed on the children after their mother's arrest on May 8, 1997, following an altercation with her brother at the Inne Town Lodge. The petition alleged that the health, safety, and physical well-being of the minor children were in immediate danger and asked the court to enter an order finding that the children were dependent-neglected and to grant custody to DHS. On May 12, 1997, an ex parte order was entered determining that there was probable cause to believe that the two children were dependent-neglected and that immediate removal to DHS custody was necessary. On May 15, 1997, a probable causehearing took place, and the court found probable cause existed to remove the children to DHS custody.

On June 12, 1997, an adjudication hearing was held, and the court found the allegation in the DHS petition to be valid. Appellant attended this hearing, where he waived summons and consented to paternity testing as to the minor child K.B. On August 14, 1997, a review hearing was held and custody was continued in DHS; however, reunification was identified as a case goal. Appellant was ordered to complete parenting classes, maintain suitable and stable housing and income, obtain a psychological assessment and any recommended counseling, complete outpatient alcohol and drug treatment, undergo an alcohol and drug screen within twenty-four hours of a request by a case worker, visit the children regularly, and follow the case plan. The court approved overnight visits to commence when appellant and Melissa Woodard, the mother of the children, had completed four weeks of outpatient treatment. The court granted DHS discretion to begin a trial placement conditioned on the parents' continued participation in treatment and parenting classes.

On January 22, 1998, a review hearing was held. Custody was continued in DHS, and the case goal remained reunification. The court found that appellant had partially complied with the court's orders by visiting the children on a regular basis and maintaining steady employment. However, appellant had failed a drug screen. He was ordered to maintain employment, maintain suitable and stable housing, visit the children regularly, keep DHS advised of his address, remain drug and alcohol free, attend Alcoholics Anonymous/Narcotics Anonymous meetings, obtain any drug or alcohol treatment that was necessary, undergo a random drug screen within twenty-four hours of a request by the case worker, and follow the case plan.

On July 7, 1998, after a review hearing finding that appellant had complied with the orders of the court, the minor children were placed in his custody, and a protective services case wasopened. DHS was ordered to provide referrals as needed. The judge also ordered that "the mother shall, only by a direct request, be entitled to visitation" and only "at the discretion and place specified by [DHS]."

On October 22, 1998, DHS placed a seventy-two-hour hold on the children and on October 23, 1998, DHS filed a motion for ex parte emergency change of custody alleging that a change in circumstances had occurred since appellant had been given custody of the children. Specifically, DHS alleged that appellant had allowed Woodard to watch the children on a regular basis, in his home, while he was working. The court signed the order of emergency change of custody on October 26, 1998. On October 29, 1998, a probable cause hearing was held and the court found probable cause that the conditions that prompted removal of the children existed and placed the children in DHS custody.

On December 3, 1998, the court found that the allegation that the mother had been watching the children was true and therefore found that the children were dependent-neglected. Custody was continued in DHS, and the case goal was reunification with appellant. Appellant was granted supervised visitation with the children, and the mother was to have no contact with the children until she appeared before the court. Appellant was also ordered to maintain his employment and housing, visit regularly, remain drug and alcohol free, undergo random drug screens, and follow the case plan. At the next review hearing, on May 4, 1999, custody of the children was continued in DHS, the court found that the children's mother had not complied with the case plan, and reunification with appellant was still the goal. The court did find that appellant was employed, had furniture, and was seeking appropriate housing following his release from incarceration. The court ordered appellant to continue his present employment, obtain and maintain sufficient housing, not allow the children to have contact with their mother, remain drug and alcohol free, and to maintain awholesome environment for the children.

On October 12, 1999, a permanency planning hearing was held and the court found that the children continued to be in need of services and that return to appellant was contrary to the health, welfare, and best interest of the children. The court continued custody in DHS, but found that DHS had not complied with the case plan and withheld a finding of reasonable efforts by DHS. The court found that appellant had partially complied with the case plan by attending parenting classes, completing a psychological evaluation, and visiting the children on a regular basis. The court ordered appellant to maintain stable employment, obtain and maintain stable housing, attend AA/NA meetings at least twice per week and submit proof of attendance to DHS, submit to random drug screens, and submit to DNA paternity testing as to the minor child, B.W.1 Additionally, appellant was allowed one supervised home visit per month, and the court order appellant to pay child support in the amount of $20.00 per week.

At the January 18, 2000, review hearing the court found that DHS had made reasonable efforts to comply with the case plan. The court ordered that visitation continue, but granted DHS the discretion to allow the children additional weekend visits with appellant. The court also ordered that appellant maintain stable employment and stable housing and that appellant and his girlfriend remain drug and alcohol free.

On May 23, 2000, a review hearing was held and the court found that: the children continued to be dependent-neglected; return to appellant continued to be contrary to their health, safety and welfare; and continued custody in DHS was in the children's best interest. Further, the court found a compelling reason to file for termination of parental rights and granted DHS permission to file a petition to terminate parental rights. The court found that the mother had never appeared before thecourt and had never set up a case plan. The court found that appellant had partially complied with the case plan and prior orders by visiting the children regularly, but had failed to comply with the orders relating to stable housing and employment. Specifically, appellant had moved three times since the last review and no longer had steady employment.2

A petition to terminate parental rights was filed by DHS on June 5, 2000. The legal grounds for termination cited in the petition were: A) parental failure to rehabilitate the home and correct the conditions which caused removal; B) willful failure to support the juvenile in accordance with the parent's means or to maintain meaningful contact; and C) the juvenile's welfare would be best served by terminating parental rights of the presumptive legal father who is not the biological father.3 On June 12, 2000, appellant filed an answer contesting the petition. On August 25, 2000, appellant filed a motion for continuance of the termination hearing scheduled for August 28, 2000, due to his inability to attend. The motion was denied.

On August 28, 2000, a termination hearing was held. The court found that it was in the best interest of K.B. and B.W. that parental rights be terminated. The court found that DHS had proven by clear and convincing evidence that the mother had made no effort to comply with the case plan or court orders. As to appellant, the court found that he had partially complied with the case plan by visiting the children on a regular basis, completing parenting classes, completing a psychological evaluation, and attending an in-patient drug and alcohol treatment program. However, the court found that appellant had failed to completely comply with the case plan since he was in arrears withhis child support payments and he had failed to show stability in housing and employment. Specifically, the court found that appellant had thirteen different residences since the case had been opened and lacked the financial means to support the children. The order terminating parental rights was filed on September 5, 2000. From that order, comes this appeal. Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 1999) requires that an order terminating parental rights be based on clear and convincing evidence. Larscheid v. Arkansas Dep't. of Human Servs., 343 Ark. 580, 36 S.W.3d 308 (2001); Baker v. Arkansas Dep't of Human Servs., 340 Ark. 42, 12 S.W.3d 201 (2000). 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. J.T. v. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). We will not disturb a chancellor's decision unless we find the decision to be clearly erroneous. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Baker, supra.

Appellant correctly cites Moore v. Arkansas Dep't of Human Servs., 69 Ark. App. 1, S.W.3d (2000), as an initial threshold in our review of a termination of parental rights. Only after clear and convincing evidence shows that the natural parents are incapable of providing reasonable care for their children are the best interests of the child implicated. Id. Appellant argues that there has been no initial showing that he is unfit or unable to provide reasonable care for the minor children. He relies heavily on the fact that the minor children were first taken into DHS custody due to the failure of their mother to provide adequate care, and not his own failure as a parent. He further notes that when the children were in his custody they were removed, not because of his negligence, but because the children had contact with Woodard.

First, appellant was given custody of the children with an express stipulation that the childrenwere to have no contact with Woodard, without the involvement of DHS. However, appellant allowed the children to be with Woodard on a regular basis, in direct conflict with the court's order. This willful disregard for the children's welfare is evidence of parental unfitness. Next, appellant was ordered to pay a nominal amount of child support beginning on October 12, 1999. However, appellant only paid the support through March of 2000. This fact is supportive of the court's finding that appellant was unable to provide adequate financial assistance for the minor children. Also, the fact that appellant had thirteen different residences since the case's opening is proof that he did not have a stable housing situation.4 Finally, these children were first taken into DHS custody on May 8, 1997. Parental rights were not terminated until May 23, 2000. Appellant had over three years to comply with the case plan and court orders. There is no dispute that appellant loves these children and that they love him. Appellant also showed progress, and at one time did receive custody of the minor children; however, his progress was insufficient.

In summary, while appellant made great progress during the first year, his progress the remaining two years steadily declined. Appellant does not have steady employment, stable housing, a driver's license, and he has recently failed drug screens or did not show for his drug screens. The children have been in DHS custody far in excess of the required statutory period of twelve months, and should not be forced to remain in limbo. Appellant has been given more than a reasonable amount of time to comply with the conditions contained in the case plan. See Thompson v. Dep't of Human Servs., 59 Ark. App. 141, 954 S.W.2d 292 (1997).

Based on the facts contained in the record and the amount of time that has elapsed since these children have entered DHS custody, we cannot say that the trial court's decision was clearly erroneous. Affirmed.

Griffen and Roaf , JJ., agree.

1 The DNA paternity test determined that appellant is not the biological father of B.W.

2 The record is in dispute as to whether appellant quit his full-time job, was fired, or was unable to return due to an injury. However, appellant was accepting part-time work through a temporary agency.

3 While the allegations in the petition leave the impression that appellant is not the biological father of either child, that is not the case. There is no dispute that appellant is the biological father of K.B.

4 Appellant's longest time in any residence was five months.