DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

CA 00-1352

June 13, 2001

SHERRY WILFONG

APPELLANT APPEAL FROM SEBASTIAN COUNTY

CHANCERY COURT, JUVENILE DIV.

VS.

HONORABLE MARK HEWETT,

CHANCELLOR

ARKANSAS DEPARTMENT

OF HUMAN SERVICES AFFIRMED

APPELLEE

Sherry Wilfong appeals from an order terminating her parental rights in her two children M.W. and V.B., who are now ages seven and five, respectively. In the order, the court also terminated the parental rights of Noble Bausley, the putative father of V.B. The court, however, set a goal of reunification with Jerry Wilfong, appellant's ex-husband, who is not the biological father of either child but who has been described as the legal father of M.W. Appellant argues that the chancellor's decision is not supported bythe evidence and is contrary to the best interests of the children. We affirm.

On September 14, 1998, appellee took custody of the children by emergency order on the grounds that appellant was living out of her car with the children, that she was an alcoholic, that she had no income, and that she was unable to provide for the children's physical and medical needs, especially those of M.W., who suffers from hemophilia. As part of the case plan, appellant was to undergo treatment at Gateway, attend parenting classes, receive counseling, attend AA/NA meetings, and to maintain stable housing and employment. Review hearings were conducted in January and June of 1999. On September 20, 1999, appellee filed a petition to terminate appellant's parental rights, alleging that she had not complied with the case plan. A hearing was scheduled on November 29, 1999.

At the hearing, it was established that appellant had completed parenting classes and had undergone treatment at Gateway. It was also said that appellant had visited with the children faithfully and regularly during the course of the proceedings. However, there was testimony that appellant had failed to attend counseling sessions and that she had not maintained stable housing or employment. There was evidence that appellant had held a few jobs but that the longest she had remained employed at any one jobwas for a month. She had also changed residences as many as eighteen times and for the most part had stayed at other peoples' homes. At the time of the hearing, she had just recently been provided a trailer to live in on land owned by her current boyfriend's mother. The trailer was said to be clean, but it had no working utilities.

After the hearing, the court held its decision in abeyance for three months so that Noble Bausley's rights could be determined. At the hearing in March, the court terminated both appellant and Bausley's parental rights. The court also set a goal of reunifying the children with Jerry Wilfong, who had been married to appellant on two different occasions and was the only father the children had known. Mr. Wilfong had been receiving services and had been allowed regular visitation with the children, and he had also filed a petition for guardianship over V.B.

A chancery court may terminate parental rights upon the following grounds: that termination is in the children's best interest; that the children have been adjudicated dependent-neglected; that the children have remained outside of the home for a period of twelve months; and that the conditions that caused the children to be removed from the home have not been remedied, despite a meaningful effort by the department to rehabilitate the home. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 1999). In determining the best interests of the children, the court is to consider the likelihood that the children will be adopted if the petition is granted, and the potential harm, specifically addressing the effect on the health and safety of the children, caused by continuing contact with the parent. Id.

The law is clear, however, that termination of parental rights is an extreme remedy and is in derogation of the natural rights of parents. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Thus grounds for terminating parental rights must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 1999). When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the question we must answer on appeal is whether the chancellor's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Thompson v. Arkansas Dep't of Human Servs., 59 Ark. App. 141, 954 S.W.2d 292 (1997). In determining whether a finding is clearly erroneous, we give due deference to the opportunity of the chancellor to judge the credibility of the witnesses. Malone v. Arkansas Dep't of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000).

The thrust of appellant's argument on appeal is that the chancellor erred by terminating her parental rights, while at the same time maintaining the rights of Mr. Wilfong and establishing agoal of placing custody of the children with him. She contends that the chancellor failed to follow the provisions of Ark. Code Ann. § 9-27-341 and that the chancellor's decision serves no useful purpose other than to deprive the children of their mother.

In terms of the statute, appellant first argues that there was no evidence that returning the children to her home would be harmful or contrary to the children's health, safety and welfare. She contends that there is no indication that her visits with the children were harmful and that, at most, the evidence showed only that she had failed to maintain steady employment and housing. While the evidence does show that appellant maintained regular visitation with the children, the evidence is also equally clear that she had yet to provide a home for the children or to secure a job so that she could support them. We cannot say that her diligence in maintaining contact with the children outweighs her failure to provide for their most basic needs. Parental rights will not be enforced to the detriment or destruction of the health and well being of the children. Gregg v. Arkansas Dep't of Human Servs., 58 Ark. App. 337, 952 S.W.2d 183 (1997).

Secondly, appellant contends that the chancellor's decision was in error because there was no evidence concerning the likeli hood that the children would be adopted. We disagree. As appellant correctly points out, the intent of the statute is toprovide permanancy in a juvenile's life in instances where the return of the juvenile to the family home is contrary to the juvenile's health, safety and welfare. Ark. Code Ann. § 9-27-341(a)(3). The statute also requires that termination should be pursued only when the department is attempting to clear the juvenile for permanent placement. Ark. Code Ann. § 9-27-341(a)(2). There was such an attempt here. The court had established a goal of permanently placing the children with Mr. Wilfong. And the statute does provide for terminating one parent's rights without affecting the relationship of the other parent. Ark. Code Ann. § 9-27-341(c)(2)(A)(i). In this case, appellant's rights were terminated because she proved incapable of remedying the quiet serious conditions that caused the children to be removed from her home. We cannot say that the chancellor's decision is clearly erroneous or that the chancellor failed to follow the requirements of Ark. Code Ann. § 9-27-341.

Affirmed.

Robbins and Baker, JJ., agree.