ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

JANE COLLINS and DOUGLAS

COLLINS

APPELLANTS

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLEE

CA 02-653

JANUARY 22, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT, [NO. EJ-99-521]

HONORABLE MARK HEWETT,

JUDGE

AFFIRMED

Appellants Jane and Douglas Collins appeal the termination of their parental rights to a daughter and a son, T.C. and D.C., as ordered by the Sebastian County Circuit Court on March 6, 2002. T.C. was born on June 7, 1988, and D.C. was born on August 28, 1990. Appellants assert that it was not in the best interests of the children for their parental rights to be terminated; that DHS failed to provide sufficient services to reunify the family; and that there is no appropriate permanency plan or likelihood of adoption. In sum, the argument of both parents is that the judge clearly erred in finding that clear and convincing evidence supports termination of their rights. We disagree and affirm.

The applicable statutory law is found in Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2001), which provides that:

(B) Of one (1) or more of the following grounds:

When the burden of proving a disputed fact is by clear and convincing evidence, the inquiry on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Minton v. Arkansas Dep't of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (2000). In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Dinkins v. Arkansas Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). The burden on the party seeking to terminate the parental relationship is a heavy one under Arkansas law. Malone v. Arkansas Dep't of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Wade v. Arkansas Dep't. of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id.

To apply the statute and caselaw principles to this appeal, we must examine the evidence presented regarding the course of DHS involvement with these parents and children. There were two households in Fort Smith, Arkansas, involved in this case because the parents were divorced. Douglas Collins lived in one household as the non-custodial parent. Jane Collins lived in the other with T.C., D.C., the children's half-sister, Arthur Martin (Jane's third husband), and Hearn Collins (Douglas's brother and Jane's fourth/current husband).

DHS became involved with these parties when in September 1999, D.C. was acting out at elementary school, and a petition was filed asking that he be found a member of a family in need of services. As the FINS case progressed, T.C. was added in a review hearing conducted on March 16, 2000. At that time, the children were placed in the custody of their father Douglas. D.C.'s behavior problems continued unabated, resulting in the juvenile court placing him in a long-term residential treatment center in May 2000.

On August 14, 2000, an emergency change of custody was entered placing custody of the children with DHS. The removal was based upon (1) T.C.'s allegation that her father inappropriately touched her in a sexual manner four times in the preceding month, and (2) a pending allegation by the children's half-sister that Hearn Collins sexually abused her. A probable cause hearing on August 17, 2000, resulted in a finding that the children should continue in the custody of DHS. An adjudication hearing was conducted on September 12, 2000, wherein the children were found dependent-neglected; the case plan was reunification. Jane and Douglas were each ordered to complete a drug and alcohol assessment, anyrecommended follow up treatment, and parenting classes, and also to maintain stable housing and income. Weekly supervised visitation was ordered for Jane with both children. Douglas was permitted supervised visitation with only D.C., but visits could be made with T.C. if she requested.

A review hearing was conducted on February 6, 2001, at which the goal remained reunification. Jane was found to have partially complied with the case plan by visiting the children on a fairly regular basis, by completing parenting classes, and by obtaining a psychological evaluation. Jane would not sign a release for medical or psychiatric records, though she was reportedly a paranoid schizophrenic under medical care from her family doctor. With her illness, Jane qualified for SSI and disability income, which she received in lieu of employment. Douglas was found to have partially complied by undergoing a psychological evaluation and a drug and alcohol assessment. However, Douglas had been arrested for conducting a methamphetamine lab in his home. Another review hearing was conducted on August 21, 2001, at which the goal continued to be reunification.

A permanency planning hearing was held on November 13, 2001, and the goal was changed to termination. This decision was based upon Jane's noncompliance with the case plan, refusal to take drug screens, refusal to permit DHS personnel in her home to provide in-home services, multiple missed visitations, the presence of Hearn in the household despite his guilty plea to sexual abuse of the children's half-sister, and the passage of more than a year with the children out of the parents' households. With regard to Douglas, he wasdeemed to have not worked on the goals of his case plan, he refused any sex-offender therapy, and he had new felony drug charges pending.

The termination hearing was held on February 1, 2002. Testimony included that of case workers who testified that though T.C. had experienced great difficulty at first in that her grades fell, she ran away once for a couple of hours to see her mother, and she was very upset when her mother would not come for visitation, T.C. had eventually improved greatly and wanted the termination to take place. Case workers described D.C. as a very angry, agitated, and unstable boy who would need long term therapy and care; he was considered a danger to himself and others. DHS acknowledged that these children would not be easy to adopt, D.C. being more difficult with his profound behavior problems. The guardian ad litem recommended termination.

A counselor with the sex offender's program, Larry Gant, testified that Douglas was referred to him but that Douglas never came. However, Gant was familiar with Hearn, who was part of his program due to his conviction for sexual abuse. Gant opined that Hearn was a high-risk offender who would be a threat to a child placed in his home, though less likely to be so with a male child.

D.C.'s counselor testified that she could not emphasize enough how angry D.C. was. As told to the counselor, D.C. had observed his mother use drugs, knew that his step-father molested his sister and his father molested his other sister, and suffered beatings from his father "until he could not sit down." D.C. told her that he wanted to be adopted, and the counselor agreed with that assessment. She related that whenever the subject of his parentswould come up, D.C. would become extremely violent. On one occasion, she had to call for aides to remove him from her office because he was kicking her desk, destroying her office. She recommended that termination take place and that no final visit be had as it would be detrimental to D.C. It was on her recommendation that D.C. not be present for the termination hearing.

A social worker who observed the visits the parents had with D.C. reported that these times were chaotic. Douglas and Jane would discuss inappropriate adult issues or would argue in front of D.C. Also, Douglas would "rough house" with D.C. to the point that it became inappropriate, especially in light of D.C.'s problems with physical violence. Jane testified that she had attempted to perform what DHS required of her, she was mentally ill and had difficulty understanding what was expected, she had no intention of leaving Hearn or removing him from the household because she did not believe the abuse allegations, she had maintained a stable household during the entirety of DHS intervention, and DHS had not attempted to help her as it should have. Jane stated that the court could do whatever it wanted with T.C. because T.C. cannot live with her due to Hearn's conditions, but she felt that D.C. should be returned to her home and would be safe there. Jane acknowledged her prior conviction for possession of drug paraphernalia (syringes) and for possession of marijuana, and that her third husband, who currently lived with her, was also convicted of those charges. Although she blamed the failure of the case-plan goals on DHS, she said that she would now be willing for DHS personnel to come to her house at any time.

Douglas testified, conceding that his rights should be terminated as to his daughter, T.C., but he wanted some visitation with D.C. in order to establish and maintain a relationship with him. Douglas stated that he had a guardian who received his veteran's administration check, paid his bills, and sent him an allowance by cashier's check. Douglas believed that he had post traumatic stress disorder and not schizophrenia, but acknowledged that he took several medications and suffered from hallucinations. Douglas testified that he was currently staying with a friend named Teresa; he was uncertain of Teresa's last name. Douglas agreed that he was required to attend a drug/alcohol assessment but did not attend treatment offered. Douglas pointed out that he attended most of the visits with his son that were offered. He did not dispute that he had pending criminal charges for possession of and intent to manufacture methamphetamine.

DHS counsel argued that termination should be entered. It reiterated the evidence above, noting the parents' failure to complete the plans or to accept the majority of services that DHS offered. DHS told the trial judge that the children might not be immediately available to adopt, but that they should be cleared for such a plan as they could not be returned to their parents' custody in a reasonable amount of time. DHS stated that Jane had an attorney throughout the proceedings and could have had her attorney explain anything that she did not understand, and Jane never raised any issue about her mental illness as compromising her ability to comply with the plan until the termination hearing.

The circuit judge found that termination was in the best interest of the children for numerous reasons. Among them was Hearn's presence in Jane's household. As a conditionof Hearn's suspended sentence, he was not permitted to be present overnight with minor females. The judge found that Jane failed to protect the abused child from Hearn, refused to accept that any abuse occurred at all, and refused to separate from Hearn. This effectively precluded T.C. from returning to her mother's home.

Jane also had her third ex-husband residing in the household, with whom she was a co-defendant in a 1998 drug-related criminal charge. Furthermore, Jane was found to have been uncooperative by failing to submit to drug screens, to appear at staffing meetings scheduled at her request, to appear for twenty of the fifty-four visits with the children, to allow DHS into her home, or to permit DHS to review her psychiatric records and/or treatment. The judge noted Jane's acceptance and completion of some services early on, which he attributed to Jane's criminal convictions for possession of drug paraphernalia and marijuana and not necessarily to her intention to ameliorate the conditions that caused her children to be removed.

Douglas was found to have pending felony methamphetamine-related charges and an unstable living situation. He was reportedly inappropriate with and had beaten D.C. Douglas did not consistently visit his son. Douglas was also found to have a mental illness, schizophrenia, that he was unwilling or unable to stabilize in order to parent.

The judge found that despite meaningful effort by DHS to rehabilitate the home and correct the conditions that caused removal, those conditions had not been remedied by the parents. The judge considered the potential harm that could come to the children with continued contact with their parents and found that their best interest was served by severingtheir relationship and not permitting a final visit with either child. The judge found that while the children were not ready for adoption, they had made progress while in the care of DHS, particularly T.C. The judge disagreed that D.C. was not capable of being adopted, having heard hundreds of these types of cases and having granted adoptions of children with more severe problems than D.C. The order terminating parental rights was filed on March 6, 2002, and timely notices of appeal followed.

The purpose of the termination-of-parental-rights statutes is set forth in Ark. Code Ann. § 9-27-341(a)(3) (Supp.1999), which states that the intent of this section is to provide permanency in a juvenile's life in all instances where the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective. While the rights of the natural parents are not to be passed over lightly, they must give way to the best interests of the children when clear and convincing evidence shows the natural parents are incapable of providing for the reasonable care for their children. Moore v. Arkansas Dep't of Human Servs., 69 Ark. App. 1, 9 S.W.3d 531 (2000).

We cannot say that the judge clearly erred on these facts. The children had been out of the homes of their parents for eighteen months. Jane was uncooperative, she effectively chose her husband over her daughter, and her living arrangement and refusal to submit to drug screens suggests a drug problem. Jane's argument that DHS denied her reasonable accommodations in accordance with the American's with Disabilities Act is untenable. Indeed, Jane manifested refusal to accept the very services designed to assist her with her mental illness, particularly psychological treatment and in-home parenting and homemaker services. Douglas in effect gave up rights to his daughter that he was accused of molesting, he refused any treatment offered, and he incurred new drug charges while this case was pending. Both parents are mentally ill, which also interferes with their capabilities to parent these children, one of whom has severe emotional and behavioral problems necessitating in-patient care.

Jane argues to us that there was not a definite permanency-placement plan for these children and that they are not adoptable, precluding termination of parental rights. We do not agree. The statute requires that the trial judge, in the "best interest" inquiry, consider the likelihood of adoption if termination were entered. The trial judge did just that, acknowledging that T.C. was more likely to be ready to adopt before D.C. would be.

We are not left with a distinct and firm conviction that a mistake has been committed in this case, and given the substantial deference we give to a trial judge who views the witnesses and weighs their credibility, we affirm.

Affirmed.

Pittman and Crabtree, JJ., agree.