ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I
CA03-528
JANUARY 21, 2004
CHRISTY PACK AND DONTE MYERS AN APPEAL FROM THE ASHLEY
APPELLANTS COUNTY CIRCUIT COURT [J-01-45]
V.
ARKANSAS DEPARTMENT OF HUMAN HONORABLE JOSEPH P. MAZZANTI,
SERVICES III, JUDGE
APPELLEE
AFFIRMED
Olly Neal, Judge
In this appeal from the termination of their parental rights, appellants Christy Pack and Donte Myers urge that the decision of the trial court was clearly erroneous. Finding no error, we affirm.
On April 13, 2001, the Arkansas Department of Human Services (ADHS) took emergency custody of appellants' minor daughter, S.M., when both parents were arrested. Appellant Pack pleaded guilty to drug-related charges and was sentenced to thirty years in the Arkansas Department of Correction. Appellant Myers pleaded guilty to a hindering apprehension charge and received ten years in the Arkansas Department of Correction. Thereafter, the court terminated appellants' parental rights following a petition filed by ADHS. This appeal followed.
The standard of review in termination of parental rights cases is well-settled.
Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Department of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997). Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court's evaluation of the evidence, we will not reverse unless the trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. Furthermore, we will defer to the trial court's evaluation of the credibility of the witnesses. Crawford v. Department of Human Services, supra.
Wright v. Arkansas Dep't of Human Servs., ___ Ark. App. ___, ___ , 115 S.W.3d 332, 333 (2003).
The stated intent of Arkansas Code Annotated § 9-27-341 (Supp. 1999) is "to provide permanency in a juvenile's life in all instances where 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[.]" Under that code section, termination of parental rights is permissible if there is an "appropriate permanency placement plan for the juvenile," and the trial court finds by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents;
(B) Of one (1) or more of the following grounds:
. . .
(iv) A parent has abandoned the juvenile;
. . .
(viii)(a) The parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life and the conditions in subdivision (b)(3)(B)(i) or (b)(3)(B)(ii) of this section have also been established.
(b) For purposes of subdivision (b)(3)(B)(viii) of this section, "substantial period" means a sentence, and not time actually served, of no less than fifteen (15) years, none of which has been suspended[.]1
Arkansas Code Annotated section 9-27-303(3) (Supp. 1999) defines abandonment as:
the failure of the parent to provide reasonable support and to maintain regular contact with the juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future, and failure to support or maintain regular contact with the juvenile without just cause or an articulated intent to forego parental responsibility.
In the present case, the trial court determined that it was contrary to S.M.'s best interest and welfare to be returned to appellants' care. It further found that ADHS had proven by clear and convincing evidence that S.M. had been out of the home in excess of one year and that ADHS could not rehabilitate the home and correct the conditions which caused removal because of the prison sentences of the parents. The court concluded that these terms of imprisonment constituted de facto abandonment of S.M. In addition to the stated grounds of the trial court, the appellate court, in our de novo review, can alternatively hold that additional grounds for termination were met under Ark. Code Ann. § 9-27-341. See Johnson v. Department of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002).
Here, appellant Pack pleaded guilty to the charges against her and was therefore sentenced to thirty years' imprisonment. Thus, Pack's parental rights could be terminated, as a sentence of more than fifteen years was considered to be a substantial period of S.M.'s life. We affirm as to appellant Pack.
With regard to appellant Myers, it is correctly pointed out that appellant Myers was sentenced to a little over ten years' imprisonment. Therefore, his parental rights could not be terminated under Ark. Code Ann. § 9-27-341(B)(viii)(a) and (b) (Supp. 1999). Nevertheless, the court also found that S.M. had been abandoned. There was testimony that appellant Myers did not have a job, did not pay support, and had no means of caring for himself or his child. While it is true that appellant Myers had, at the time of the termination proceeding, only recently gotten out of prison, he acknowledged to the court that he had not maintained a job in a "couple of years," that he was twenty-four, and "was living with people[.]" Appellant Myers further acknowledged that he had been imprisoned for most of S.M.'s life and that when he was out, "[he] did nothing to support [S.M.]. I can't send cards from the penitentiary. "
The mere fact that a parent is incarcerated at the time of the termination hearing is not dispositive of the termination issue; however, a parent's imprisonment does not toll that parent's responsibilities toward his or her children. Malone v. Department of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). In Zgleszewski v. Zgleszewski, 260 Ark. 629, 632, 542 S.W.2d 765, 767-68 (1976), it was outlined that:
Our cases require that in order to show abandonment the evidence must indicate the parent deserted, forsook entirely, "or relinquished all connection with, or concern in," the child. We are aware that imprisonment imposes an unusual impediment to a normal parental relationship. However, even when parenthood is disadvantaged by this unfortunate factor, one could still solicit visits from his children and contact them with cards, letters and small gifts if he did not have the means of support.
. . .
[A] parent's absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent's responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child.
[Internal citations omitted.]
The cumulative evidence here indicates that appellant Myers's interest in the welfare of his child from her birth in 2000 to the date of the termination proceeding had been minimal. As in Zgleszewski, supra, appellant's criminal acts and the course of conduct that followed thereafter indicate a conscious disregard of his child and an indifference to her welfare tantamount to voluntary abandonment. Furthermore, while in prison, appellant Myers has failed to maintain any contact with S.M., admittedly not even sending her a card. Accordingly, we affirm as to appellant Myers.
Affirmed.
Pittman and Vaught, JJ., agree.
1 Arkansas Code Annotated section 9-27-341 has subsequently been amended. This code section has eliminated the requirement that a parent is sentenced in a criminal proceeding for a substantial period of time no less than fifteen years. It now reads: "The parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life[.]" See Ark. Code Ann. § 9-27-341(b)(3)(B)(viii) (Supp. 2003).