ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

KRISTY TEW and ROBERT TEW,

APPELLANTS

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES,

APPELLEE

CA02-1089

JUNE 11, 2003

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT,

NO. JV-2001-233,

HON. LINDA P. COLLIER, JUDGE

AFFIRMED

This appeal arises from an order of the Faulkner County Circuit Court that terminated the parental rights of Kristy and Robert Tew regarding their child T.T. The Tews raise three points on appeal: (1) that the circuit court unconstitutionally and unlawfully applied Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) to a healthy, premature, newborn child; (2) that the circuit court unlawfully shifted the burden of proof to the parents to prove that they were not presently unfit; (3) that it was unconstitutional under the Due Process Clause for the court to decide the case on an additional basis not alleged until closing argument. We affirm.

T.T. was transferred to Arkansas Children's Hospital after premature birth on March 25, 2001 at Conway Regional Hospital. On April 9, 2001, the Arkansas Department of Human Services filed a petition for emergency custody, alleging that the child was

dependent/neglected. The supporting affidavit stated that, upon learning that the child was to be discharged from the hospital, and due to the fact that his three siblings were already in custody and that the department was in the process of terminating the Tews' parental rights with regard to those children,1 the department had exercised a seventy-two-hour hold to ensure T.T.'s safety. On April 10, 2001, the trial court granted the petition for emergency custody.

T.T. remained in DHS custody throughout the proceedings that culminated in the termination of parental rights and in this appeal. An order of May 1, 2001, reflects the trial court's finding at a probable cause hearing of April 16 that emergency conditions continued and that no visitation would be allowed. After a second hearing, an adjudication order of May 31, 2001, states that reunification services would not be offered to the parents with regard to the newborn due to the severity of abuse and neglect against the other children. A permanency planning order of July 16, 2001, reflects the court's determination that it was in the best interest of the juvenile that the goal of the case be termination of parental rights and adoption. Parental rights were terminated by court order on July 19, 2002.

1. Whether the circuit court unconstitutionally and unlawfully applied Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) to a healthy, premature, newborn child.

We first note that the constitutional argument was not made to the trial court. Failure to raise an argument below, even if a constitutional issue, is fatal to our consideration. Walters v. Arkansas Dep't of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (2002). Theremaining part of appellant's first point of error is that Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) [(Repl. 2002)] was unlawfully applied to a healthy, premature newborn. That subsection and other pertinent parts of the statute read as follows:

The Tews argue that the final termination hearing was simply a formality, the court having decided prior to T.T.'s birth that it would take him in addition to the other siblings. The Tews complain that DHS proved nothing beyond involuntary termination of parental rights regarding siblings prior to the court placing the child in the custody of DHS, that there were no allegations of sexual or physical abuse, that allegations of past neglect were relatedto drug abuse/addiction or lack or parenting skills, and that no services were ever offered to the family. They argue that Ark. Code Ann. § 9-27-341 cannot be interpreted to condone taking away parental rights to a newborn child regardless of how the parents are living and behaving at the time of the birth of the child. These arguments are not persuasive. The trial court heard testimony at the probable cause emergency hearing from DHS investigator Michelle Whatley. She testified that she obtained the initial seventy-two-hour hold on T.T. because of the parents' history of domestic abuse, drug use, and very little or no prenatal care for all the children. Whatley stated her belief that it was contrary to the best interests and welfare of T.T. for him to remain in his parents' custody because of the upbringing of the other children, the lack of prenatal care, and the entire history of the Tew case. She stated that T.T. was removed for his own safety and well-being. Whatley said that the basis of taking him into custody was the earlier basis of taking the other children, that she had discovered nothing new upon T.T.'s birth, and that DHS wasn't sure of Kristy's conduct with T.T. because she had not stayed in touch with DHS. Kristy Tew testified that she had quit using methamphetamine when she discovered she was pregnant with T.T., which was at about three months; that she had left Robert about a dozen times because of domestic violence but had gone back to him afterwards; and that she and Robert had begun going to "NA meetings" on their own but had quit because they thought it was not doing any good. At the hearing on termination of parental rights, the court took judicial notice of pleadings and evidence filed in the previous Tew case, including the termination of parental rights on the three siblings, which was then on appeal to this court. Included in theprevious case was testimony of Brenda Mallett, an employee at the prosecutor's victim services center, who testified that Kristy had admitted to using drugs two or three days before she had come to the women's shelter on October 5, 2000, about six weeks into her pregnancy. Kristy told Mallett that she wanted DHS to take her children while she had drug rehabilitation, and that she "couldn't, shouldn't, and wouldn't be able to take care of them."

Whatley also testified at the hearing regarding termination of parental rights on T.T.. Regarding the other three children, she testified:

Robert and Kristy Tew also testified at the termination hearing. Robert testified that he was not using drugs and could pass a drug test. He stated that the only step he had taken to deal with his prior drug problems was attending some NA meetings, which he had stopped attending shortly after parental rights were taken on the other children around May 2001. He said that he had failed drug tests, that he "did drugs but not around the children," and that he had used methamphetamines a month prior to the May 2001 termination hearing in the siblings' case. He said that the children were taken because Kristy had told lies about the children finding needles and other things, and that there was no reason for the children to bein the State's custody. He testified that he had asked DHS to leave his house "because of the way they were badgering my wife," that the only other thing he could do to get his children back was to pray and hope, and that there was nothing to fix. He said that he and Kristy had lived together during her pregnancy except for a two-week period, and that she had received prenatal care from a doctor in Conway.

Kristy testified that she was not using drugs or alcohol, that past marital problems were resolved but she could still use counseling because she was a very jealous wife, that she was jealous of girls who came to the trailer and got drugs from Robert, that the girls came in and around the children, that the drugs were in the home, and that Robert was on drugs and was in the home. She testified that she had made untrue statements to DHS because of her jealousy, and that she had left Robert because of her jealousy and because he threw a cup at her. She testified that she and Robert had never physically abused the children or neglected them; that she had left Robert several times since the beginning of the original case with the three older children, but that it was never because he physically abused her; and that when the case was initiated he had thrown the cup at her. She said that she planned to seek counseling, and that she and Robert did not contact DHS because it had seemed futile after the three other children were taken. She testified that she had last used methamphetamine about three years ago, that she got the drugs from Robert, and that he did not do drugs around the children.

In Brewer v. Arkansas Dep't of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001), we affirmed a trial court's finding that the child Logan was dependent-neglected andthat no reunification services would be ordered. DHS had filed a petition for emergency custody when Logan was one day old, basing its request on the fact that a nineteen-month-old sibling had been previously adjudicated dependent-neglected and that no reunification services were ordered. The appellant parents contended that a finding of dependent-neglected must be based on treatment of the child at issue rather than solely on alleged abuse to his sibling. Noting the overwhelming evidence that Logan's sister had been abused by one or both parents, we stated that a parent who did not notice such obvious signs of abuse of a child living in the home was unfit. We did not reach the appellants' argument that DHS had failed to establish abuse with regard to Logan, explaining:

Id. at 368, 43 S.W.3d at 199 (2001) (emphasis added).

The Tews argue that the proceedings in the present case were superfluous because DHS sought removal of T.T. regardless of whether or not his parents were unfit at the time of the emergency probable cause hearing, because the court ordered no visitation between the parents and their newborn in its probable cause order, and because the adjudication order fifteen days later stated that there were to be no reunification services. We disagree. Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(4) enables the State to protecta child in just such a case as is now before us, without waiting for abuse and neglect to occur directly to T.T.. As in Brewer, it would be tragic and cruel to require T.T. to undergo the same fate as befell his siblings before the State stepped in.

In Conn v. Arkansas Dep't of Human Servs., 79 Ark. App. 195, 85 S.W.3d 558 (2002), we stated that even when subsection (b)(3)(B)(ix)(a)(4) is satisfied with clear and convincing evidence that parental rights have been involuntarily terminated as to a sibling, parental rights cannot be terminated unless there is also clear and convincing evidence pursuant to subsections (b)(3)(A)(i) and (ii) that it is in the best interest of the juvenile. In the present case, there was plentiful evidence before the trial court concerning the best interest of the child. Our de novo review of the evidence, as summarized in this opinion, affirms the trial court's finding that termination of the Kristy and Robert Tews' parental rights was in the best interest of their child T.T.

2. Whether the trial court unlawfully shifted the burden of proof to Kristy and Robert Tew to prove that they were not presently unfit parents.

Kristy and Robert Tew again argue that neither DHS nor the trial court considered their conduct or lifestyle in the last months prior to T.T.'s birth, at the time of the probable cause hearing, or throughout the proceedings of this case toward adoption and termination of parental rights. They argue that the State must prove by "sufficiently current" clear and convincing evidence that a parent is unfit, "especially in a case where there has never been any proof that either parent has ever intentionally engaged in abusive conduct toward any child or children." They argue that the State cannot switch the burden of proof to theparents, requiring them to prove that they are fit. This point of appeal regarding shifting burdens of proof was not made to the trial court, and we will not address it on appeal.

As mentioned earlier in this opinion, the trial court took judicial notice of the pleadings and evidence in the case of T.T.'s siblings, where the court had recently found the parents to be unfit. Those pleadings and evidence, received without objection from appellants, were considered along with testimony in the present case as proof that it would be contrary to T.T.'s best interests, health and safety, and welfare to return him to the care and custody of his parents. Again, the State was not required to wait for T.T. to suffer the abuse and neglect that had befallen his older siblings. See Brewer v. DHS, supra.

3. Whether it was unconstitutional under the Due Process Clause for the trial court to decide a case on an additional basis that was not alleged until closing argument, particularly when the alleging party specifically states at the beginning of trial that it is prosecuting the case on another solitary basis.

Appellants argue that they had no notice that consideration would be given to any grounds for termination other than the termination of parental rights regarding T.T.'s three older siblings. They complain that although the State amended its grounds at the close of the hearing, the defendants could not recall any witnesses to address the "eleventh hour" allegation; and they complain that the court referenced portions of the file on T.T.'s siblings as a basis for denying the parents an opportunity to address the additional ground. DHS responds that the Tews had been put on notice of a second ground for termination by the State's listing two grounds for the termination of parental rights regarding T.T.

We need not address the arguments under this final point of appeal, for it wasunnecessary that the trial court find a second basis for termination of parental rights. As discussed under the first point of appeal, we affirm the termination of the Tews' parental rights regarding T.T. on the basis of the finding that their parental rights had been involuntarily terminated as to his siblings, and that it was contrary to T.T.'s best interests to return him to the care and custody of his parents.

Affirmed.

Roaf, J., agrees.

Hart, J., concurs.

1 In Tew v. DHS, CA 01-1034 (March 5, 2003), this court affirmed the circuit court's order terminating the Tew's parental rights with regard to T.T.'s three older siblings.