ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION III

CA03-385

OCTOBER 22, 2003

DONNA CUMMINGS and AN APPEAL FROM THE LOGAN

JAMES CUMMINGS COUNTY CIRCUIT COURT [J- 2001-31]

APPELLANTS

v.

ARKANSAS DEPARTMENT OF HONORABLE DAVID H. MCCORMICK,

HUMAN SERVICES JUDGE

APPELLEE

Larry D. Vaught, Judge

Appellants, Donna and James Cummings, appeal the termination of their parental rights as to their minor children. On appeal, they challenge the admissibility of an edited videotape and the sufficiency of the evidence terminating their rights. We affirm.

The facts that led to the termination are not in dispute. On October 22, 2001, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody. The affidavit supporting the petition alleged that videotapes had been seized from appellants' residence that contained nude scenes of the mother, Donna Cummings, and of one of the children, C.G.1 The trial court granted DHS's petition.

A probable-cause hearing was held on October 23, 2001, wherein the court found that probable cause existed to remove the children from the home. At the February 2002 adjudication hearing, DHS presented its evidence, which included a videotape that contained selected scenes from three videotapes that were seized from the Cummings' home. Arkansas State Police Investigator J.L. "Bud" Johnson, Jr. testified at this hearing that he was present during the seizure at the appellants' home and that he viewed the tapes and copied scenes that he felt depicted the most "severe" scenes. The officer testified that the original tapes were in the possession of Lonnie Whitehead for criminal prosecution purposes. Defense counsel objected to the introduction of the edited tape on the ground that it did not "accurately depict everything that was on the videotapes." The trial court, after further inquiry of Johnson with regard to the tape's authenticity and custody, overruled appellant's objection and admitted the tape. Thereafter, based upon the evidence presented, the court found the children to be dependent-neglected. The court placed the children in the custody of their maternal grandmother and ordered the continuation of reunification services.

In May 2002, DHS filed a termination of parental rights petition; however, this petition was voluntarily dismissed due to the court's failure to hold a hearing within the statutorily-required ninety days. Consequently, DHS filed another petition to terminate on October 15, 2002, alleging that appellants' rights were subject to immediate termination because the children had been determined to be dependent-neglected based upon sexual exploitation perpetrated by the appellants. During the termination proceeding, defense counsel renewed his objection to the introduction of the edited videotape. Nevertheless, based upon the evidence presented, the trial court terminated appellants' parental rights, finding that DHS had proved by clear and convincing evidence that the children were dependent-neglected as a result of the sexual exploitation perpetrated by the appellants and that the return of the children to the appellants would be contrary to their best interest. The court further found that DHS had made reasonable efforts to obtain permanency for the children. This appeal followed.

Appellants argue first that the court erred in admitting an edited version of three videotapes. Investigator Johnson testified that the original tapes were in the custody of the Magazine Police Department and were used in the criminal investigation. Johnson testified that he reviewed the tapes and copied portions of those tapes for the purposes of the child maltreatment case, that he did not make any alterations in the images, and that he did not have the capability or the knowledge to do so. Appellants contend that because there was no testimony that the original tapes were lost, unavailable because of judicial process or procedure, or in the possession of the opponent, the original unedited tapes should have been admitted. We disagree.

A videotape is admissible if it is relevant, helpful to the fact finder, and not prejudicial. See Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002)(quoting Jefferson v. State, 328 Ark. 23, 30, 941 S.W.2d 404, 408 (1997)). Generally, the same considerations and requirements for admissibility that apply to photographs also apply to videotapes. Id. The admissibility of such evidence is in the sound discretion of the trial judge, whose discretion will not be set aside absent an abuse of that discretion. Id. Nor will we reverse absent a showing of prejudice. Serra v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).

Rule 1002 of the Arkansas Rules of Evidence provides, "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required[.]" A video is included within this rule. See Sera v. State, supra (citing Ark. R. Evid. 1001 - "`Photographs' include still photographs, x-ray films, video tapes, and motion pictures."). However, a duplicate may be admitted unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. See Ark. R. Evid. 1003. Appellants do not challenge the trial court's ruling on the admissibility of the tape based on Ark. R. Evid. 1003 grounds, but rely on Sera v. State, supra, to suggest that, although the supreme court allowed the introduction of an edited tape in Serra because the appellant through his own testimony could verify its contents, this court should find that, because appellants did not verify the accuracy of the tape due to the criminal charges that were pending against them and the invocation of their Fifth Amendment rights, the trial court erred in admitting the tape. We decline to so hold, as the holding in Sera was limited to the facts presented in that case.

Even if the tape was admitted in error, appellants were not prejudiced by its introduction into evidence because appellants had already been convicted in circuit court -- the only ground necessary to terminate their parental rights pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a) (Supp. 2003). Therefore, we find no error in the admission of the videotape; accordingly, we affirm on this point.

Appellants contend that the evidence supporting the court's determination that their rights should be terminated was based almost exclusively upon the videotape admitted into evidence. They also state that although some photographs were introduced as well, they do not arguably constitute sexual exploitation as defined by Ark. Code Ann. § 9-27-303 (Supp. 2003). In the alternative, appellants argue that, even if we find that DHS had grounds to terminate their parental rights based upon sexual exploitation, clear and convincing evidence was not presented that the adoption was in the best interest of the children or that the children were likely to be adopted, as required by Ark. Code Ann. § 9-27-341 (b)(1)(3)(A)(i) (Supp. 2003). Further, appellants argue that the trial court erred because no permanency planning hearing was ever held pursuant to Ark. Code Ann. § 9-27-338 (Supp. 2003).

When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Johnson v. Dep't of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Id. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence, and in reviewing the trial court's evaluation of the evidence, we will not reverse unless the court's finding of clear and convincing evidence is clearly erroneous. Id. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. Id.

An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2003). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that,

according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2003). One such set of circumstances that may support the termination of parental rights is when the "juvenile court has found the juvenile victim dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, and which is perpetrated by the juvenile's parent or parents." Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a) (Supp. 2003).

There was ample testimony at the termination hearing that the minor children were dependent-neglected as a result of sexual exploitation perpetrated by appellants. Investigator Johnson testified that he was employed as an investigator at the Arkansas State Police in October 2001. He testified that he participated in the search and seizure of videotapes at appellants' home and that he viewed the three videotapes after the seizure. He testified that he viewed every tape and that three of the tapes had sexual content or nudity involving "an adult female and minor female child."

Johnson further testified that images were obtained from the website, cindysworld2000.com, depicting C.G. in various stages of undress. From his edit of the three original tapes, Johnson stated that he watched them from beginning to end and recorded scenes related to the child maltreatment case which he was investigating. He provided that he recorded only scenes that involved the minor child and the parents. The scenes he did not record were of family gatherings and events that did not involve sexual content. Johnson testified that when he spoke to appellant James about the pictures, James said "[h]e saw nothing wrong with it. He did say he took the pictures." Johnson stated that appellant Donna, to his recollection, did not comment about the site, but that she was found nude on the tapes along with her minor daughter, C.G.2

Stephanie Thomas, an adoption specialist with DHS, testified that she thought there was the possibility that the children could be placed together. Thomas testified that she had spoken to the children's maternal grandmother several times and that the grandmother had not "expressed any intention other than to adopt these children."

Ray Rickartz, a supervisor with the children and family services agency in Logan County, testified that he saw no problem with the placement of the children with their grandmother and that the children had undergone comprehensive evaluations at UAMS. The children were also provided with Medicaid services. Rickartz further testified that appellants completed parenting classes at SCAN in Fort Smith and that they attended staffings up until the time they were incarcerated. He stated that, to his understanding, the parties did not attend counseling because of the ongoing criminal case and the court's decision that they did not have to participate at that time because of their inability to sign the record-release form.

Following the hearing, the court found that the parental rights of the parties should be terminated based upon their sexual exploitation of the children. The court stated in part that:

Based upon appellants' convictions and the evidence presented, the court's findings were supported by clear and convincing evidence. Therefore, we affirm. We also hold that the termination was in the children's best interests and that adoption was shown to be likely.

Appellant also argues that the trial court erred because no permanency planning hearing was ever held pursuant to Ark. Code Ann. § 9-27-338 (Supp. 2003). Appellants did not raise this argument below, and arguments raised for the first time on appeal, even constitutional arguments, are not addressed by this court. See Utley v. City of Dover, 352 Ark. 212, 101 S.W.3d 191 (2003).

Affirmed.

Stroud, C.J., and Roaf, J., agree.

1 The appellants were arrested. Appellant James Cummings was charged and convicted of (1) producing, directing, or promoting a sexual performance, and (2) permitting a child to engage in sexually explicit conduct for use in visual or print medium. He was sentenced to thirteen years' imprisonment. Appellant Donna Cummings was charged and convicted of permitting a child to engage in sexually explicit conduct for use in visual or print medium. She was sentenced to ten years' imprisonment. Both of their convictions were affirmed in Cummings v. State, CR 03-9 (Ark. June 12, 2003). Appellant James Cummings is not the biological father of C.G. and no paternity was established as it relates to her.

2 Although the nude pictures only involved C.G., the other children were seen in the tapes watching and trying to participate.