ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

WALTER O’DELL and JEWELL O’DELL

APPELLANTS

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA02-957

OCTOBER 22, 2003

APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT

[J2000-146]

HONORABLE GARY ISBELL, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellants, Walter and Jewell O’Dell, appeal the termination of their parental rights for their two children, a daughter born October 15, 1998, and a son born November 20, 1999. The children were first removed from the home by the Arkansas Department of Human Services (DHS) on June 23, 2000, and their rights were terminated at a hearing held December 3 and 7, 2001. There is no dispute that the children were out of the home for the requisite twelve months as those factors relate to the termination of parental rights statute, that there was an appropriate permanency placement plan for the juveniles, and that “it is an almost certain likelihood that the juveniles will be adopted.” Appellants do, however, challenge the trial court’s findings on two points: (1) the court’s finding that DHS’s effort of rendering services was meaningful because there was confusion as to the nature of the case and the critical issues involved; and (2) the court’s finding that appellants willfully refused to provide material support for their children considering the poverty of appellants. For the reasons stated herein, we find no error and affirm.

Parental rights termination cases are reviewed de novo on appeal. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W. 3d 286 (2001). An order terminating parental rights must be based upon clear and convincing evidence. Id.; Ark. Code Ann.§ 9-27-341(b) (3) (Repl. 2002 & Supp. 2003). A finding in a parental rights termination case is clearly erroneous when, even though there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Id. In resolving the question of clearly erroneous, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Johnson v. Arkansas Dep't of Human Servs., 78 Ark.App. 112, 82 S.W.3d 183 (2002). There are no other cases in which the superior position, ability, and opportunity of the trial court to observe the parties carries a greater weight than ones involving the custody of minor children. Dinkins, supra.

In addition, when the issue involves terminating parental rights, our case law is clear that the party seeking to terminate the parental relationship bears the heavy burden of proof. J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). The reason for this is that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). Accordingly, an order terminating parental rights must be based on clear and convincing evidence that the termination is in the best interest of the child and that there exists at least one of the circumstances set forth in Ark.Code Ann. § 9-27-341(b)(3)(B) (Repl. 2002) also justifying termination of parental rights.

We apply these standards first to the issue of whether appellants’ confusion of the issues involved in the case rendered the services provided by DHS meaningless. We agree with appellants’ basic premise as stated in their brief: “Quantity does not replace quality, nor does quantity necessarily equal quality. Misguided services, even in legion, do not constitute meaningful services as defined in Arkansas law.” To support their argument that the services provided were not meaningful, appellants emphasized the trial court’s statement that appellants never seemed to understand the critical issues of the case. Appellants imply that this lack of understanding was never addressed by DHS. However, the trial court’s comments, rather than illustrating a lack of effort by DHS, demonstrate the trial court’s understanding of the issues and compassion for appellants and their situation:

I thought it odd that both Mr. and Mrs. O’Dell thought this was a case about keeping a house clean. ...I never looked at the environmental issue about the trash and the odor and the maggots and the debris as being anything except a symptom of a bigger problem. . . . [T]he bigger problem was whether or not Mr. and Mrs. O’Dell were able to see what was needed and whether or not they were able to solve the problem that needed to be solved...[T]hat entire problem revolved around whether or not children could grow up in that household, healthy, safe environment[], whole, and otherwise educated the way every other kid ought to be educated. So, the thing never centered around the garbage on the floor in your house. It never centered around the broken boards in your yard. It centered around whether or not you’re able to focus upon what your children needed and whether or not you’re able to provide it.

These comments emphasize the primary consideration that a court must focus upon when terminating parental rights: the best interest of the children. Ark. Code Ann. § 9-27-431(b) (1). The primary consideration in termination of parental rights cases is the best interest of the child. See Ark.Code Ann. § 9-27-102 (Repl.2002) & § 9- 27-341 (Repl. 2002 & Supp. 2003). See Malone v. Arkansas Dep’t. of Human Serv., 71 Ark.App. 441, 30 S.W.3d 758 (2000).

Environmental conditions change from day to day, even hour to hour. The court’s explanation to appellants was that the focus was never on whether they could physically remove a dangerous object or condition, but whether they would evaluate conditions hazardous to the children and remedy those conditions so that the children were no longer endangered.

Appellants ask, “Was there sufficient confusion of the nature of this case and the critical issues therein to make clearly erroneous the trial court’s finding by clear and convincing evidence that the Department’s effort of rendering services was meaningful?” The answer is no. A meaningful effort by DHS consists of providing preservation or reunification services to the family. Ark. Code Ann. § 9-27-303 (23) (Repl. 2002). Our code defines “family services” to mean relevant services provided to the juvenile or his or her family, including child care, homemaker services, crisis counseling, cash assistance, transportation, family therapy, physical, psychiatric, or psychological evaluation, counseling, or treatment. Id.

The record is replete with examples of DHS providing services designed to provide appellants with the means and skills to provide a safe environment for their children, and appellants acknowledge that many services designed to address the environmental safety issues were provided. Furthermore, the record indicates that in March of 2001, the court found that appellants had made progress toward providing a more suitable home environment for the children. Specifically, the court found that DHS had been instrumental in assisting appellants’ progress, not only with guidance, but with obtaining materials for the parents to use and assisting the parents to obtain substantial food stamp benefits. The court, based upon the progress made and recommendation of DHS, reinstated and ordered extended weekend visitation between the children and appellants. Unfortunately, the progress did not last.

Environmental safety was clearly a concern in this case. DHS’s efforts to eliminate headlice and maggots and teaching appellants to remedy conditions upon which headlice and maggots thrived were not misplaced. Yet, appellants misuse the judge’s comments explaining the underlying reasons why environmental safety concerns were addressed. They complain that DHS failed to effectively correct the misunderstanding of appellants that this case was about environmental neglect. Appellants criticize DHS for being too easily contented with the claims by appellants that they understood the case plans, court reports, orders, and goals. They assert that there is no doubt that DHS thought appellants were low-functioning, including their access to the psychological evaluations of appellants, and argue that perhaps DHS owed a duty to appellants to make sure that the problems were truly within their comprehension.

However, appellants do not articulate a means or method that DHS should have followed to verify that appellants understood the issues of this case. The fact that appellants did make progress toward providing a safe environment is evidence that they understood that they needed to remedy the original unsafe conditions that caused removal of the children. It is also evidence that DHS’s efforts were designed to address the conditions which caused the removal of the children. Given our deferential standard of review, we are not left with a definite and firm conviction that a mistake has been made. Therefore, the trial court's finding that DHS’s efforts were meaningful was not clearly erroneous.

A trial court need find only one of the statutory criteria met to terminate parental rights. The court in this case cited, as another ground for termination, appellants’ willful failure to provide significant material support in accordance with the parents’ means. Ark. Code Ann. § 9-27-431(B). For this alternative ground for termination, appellants ask whether, considering the poverty of appellants, the trial court was clearly erroneous in finding that they willfully refused to provide material support for their children. Appellants urge that the statute requires a two-prong test, that the parents must fail to provide support and fail to maintain meaningful contact. They cite Crawford v. Department Of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997) and Minton v. Department of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (2000) in support of their argument. Their argument follows the same reasoning set forth in Minton. However, as this court discussed in Minton, the statute clearly uses the word “or” and both failures are not necessary. This court explained:

Furthermore, Minton's resort to Crawford v. Arkansas Dep't of Human Servs., supra, does not compel a different result. While the supreme court in Crawford at one point mistakenly substitutes "and" for the "or" in the statute, in that case, the parent whose rights were terminated had failed both to maintain contact and to support his children. The supreme court did not hold that both failures were necessary.

Minton v. Arkansas Dep’t. of Human Services, 72 Ark.App. at 301, 34 S.W.3d at 782 (2000).

See also Baker v. Arkansas Dep’t. of Human Services, 340 Ark. 42, 8 S.W.3d 499 (2000) (citing Crawford, supra, saying that the Arkansas Supreme Court had upheld the termination of parental rights in a case where the evidence indicated that the parent failed to maintain reasonable contact with his sons while they were in protective custody).

Therefore, appellants’ argument that the statute requires a two-prong test is not well-founded. However, we do address appellants’ contention that to allow parental rights to be terminated based solely upon the failure to support allows parents in a dependency-neglect case to see their parental rights terminated simply because of their poverty.

First, as discussed above, appellants’ parental rights were not terminated solely upon the failure to support. Second, we are mindful of the fact that Ark.Code Ann. § 9-27-341, by its express language vests a trial judge with discretion to decide whether or not to terminate parental rights, stating: "The court may consider a petition to terminate parental rights...." (Emphasis added.) Accordingly, the mere existence of potential grounds for termination does not require a trial court to terminate parental rights. That decision must be guided by a determination of whether or not reunification can be accomplished within a reasonable time so as to provide permanency and stability in a child's life. See Ark.Code Ann. § 9-27-341(a). See also Minton, supra.

Third, trial judges have a duty to insist upon strict compliance with the statutory criteria before entering an order terminating parental rights. This "[i]nsistence upon strict compliance with the statutory criteria ... enhances the child's best interests by promoting autonomous families and by reducing the dangers of arbitrary and biased decisions amounting to state intrusion disguised under the rubric of the child's best interests." In re Danuael D., 51 Conn.App. 829, 724 A.2d 546, 553 (1999) (citations omitted). Therefore, our adherence to strict compliance with our statutes is not merely a standard of review. See Arkansas Dep't of Human Servs. v. Cox, 349 Ark. 205, 82 S.W.3d 806 (2002) (finding DHS's conduct deeply disturbing when agency took custody of child utterly without authority and outside the limited circumstances set out in our state statutes). As one law journal notes, statistical data on neglect and children living in poverty show that "[s]tate governments appear to be destroying family ties of a large number of poor families with no concomitant benefit to children." Second Chances: Insuring That Poor Families Remain Intact by Minimizing Socioeconomic Ramifications of Poverty, 102 W. Va. L. Rev. 607, 613 (Spring 2000).

We require strict compliance with our statutes before destroying those family ties. We do not allow those family ties to be destroyed when there is no benefit to the children. In this case, the judge was sensitive to the poverty issue and commented on the difficulties of appellants’ situation. Appellants refer to the trial court’s acknowledgment that appellants suffered “immense poverty” and that children who grow up in such poverty have “a hard row to hoe.” They assert that the court’s comments concerning his own parents’ poverty was an unfair and inappropriate comparison. However, the court’s comments regarding the fact that his own parents were poor and yet were able to provide a safe environment for the children, expound more upon the court’s understanding that poverty alone does not mean that a parent is unable to address their children’s needs. In context, the court’s statements indicate that the court considered appellants’ limited means in determining whether the parents willfully failed to support according to their means.

As for the court’s finding that appellants failed to support the children in accordance with their means, the evidence was that appellants spent $100 on the children’s clothing while they were in DHS care for eighteen months while spending $150 on their dogs in 30 weeks. This is a far cry from the parent in Minton who argued that while she did not pay the court-ordered support, she did bring her child gifts and clothes, maintained a residence where M.M. could live and made payments on her court fines so that she could provide transportation for her daughter. She also was paying support for two children in Arizona and for much of the case, her financial situation was "dire." Minton v. Arkansas Dep’t. of Human Servs. 72 Ark.App. at 299, 34 S.W.3d at 781 (2000). Given the fact that appellants spent more on their dogs than their two children during the relevant time period, we cannot find that the trial court’s finding was clearly erroneous.

For the forgoing reasons, the trial court's decision to terminate appellant's parental rights was not clearly erroneous.

Accordingly, we affirm.

Gladwin, J., agrees.

Pittman, J., concurs.