ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

SANDRA GREEN and JAMES EARL GREEN

APPELLANT

v.

ARK. DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-1196

MARCH 31, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[JV2001-390]

HONORABLE MARK HEWETT, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellants, Sandra and James Green, challenge the sufficiency of the evidence to support the decision of the Sebastian County Circuit Court terminating their parental rights to their four children. The Greens' parental rights were terminated based upon the finding that they had demonstrated a total inability to resolve the drug problems that had resulted in the removal of the children from the home. We find no error and affirm.

James and Sandra Green are the parents of four minor children. The three older children in this case were removed from the home of their parents multiple times as the result of drug-related offenses on the part of one or both parents. On February 4, 1999, appellants' two older children were removed from the home when both parents were arrested on drug-related charges. Mr. Green was charged with possession of drug paraphernalia, possession of marijuana, and violating the terms of a three-year suspended sentence for a theft conviction. Mr. Green was ultimately sentenced to twenty-four months in a Regional Punishment Facility with an additional eight-year sentence to the Department of Correction being suspended. On May 29, 2001, the Department of Human Services again petitioned for emergency custody of the three older children, after having placed a seventy-two hour hold on the children because the children were living with their mother in a home where methamphetamine was being manufactured. The fourth child was not born until March 2002.

On March 24, 2003, Sergeant Lawson, a supervisor for the narcotics unit for the Fort Smith Police Department, was called to the Greens' residence after two other officers investigating a domestic disturbance call smelled strong vapors emanating from the residence. He testified that the officers put on respirators to go into the home and ventilate the house because the vapors were a breathing hazard. He identified certain toxic fumes emitted as byproducts of the manufacturing process and explained how small children, such as appellants' children, were in danger of dying, being seriously injured, or suffering from long term effects from the exposure to these gases. He discussed the hazard of fire or explosion due to the presence of the methamphetamine lab in the home and that the children were exposed to an increased danger of being immediately killed or seriously injured by a fire or explosion resulting from the manufacturing process. Sergeant Lawson also described how he found several articles inside the house and surrounding areas consistent with the manufacture of methamphetamine.

Mrs. Green testified that she knew methamphetamines were being produced when the children were in the home and that making methamphetamines in the home exposed the children to death or serious physical injury. Despite this knowledge, she said she was too scared to leave the home.

The trial court terminated parental rights as to the three oldest children based upon the amount of time the children had remained out of the home and the inability of appellants to correct the conditions that had caused such removal. The parental rights as to the youngest child were terminated based upon the adjudication of her as a dependent-neglected child as a result of abuse or neglect, perpetrated by appellants, which could endanger her life.

Parental rights termination cases are reviewed de novo on appeal. Dinkins v. Arkansas 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 determining whether the finding is clearly erroneous, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Crawford v. Arkansas Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). 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, 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.

The record in this case reflects that appellants were engaged in chronic drug use and that they engaged in both the use of and the manufacture of methamphetamine in their home while their children were present. The evidence presented showed that the manufacture of methamphetamine created toxic fumes that could result in immediate death, serious physical injury, or long term health problems. Evidence also showed that the manufacturing process created a danger of fire or explosion that increased this risk of death or physical injury to the children. It is undisputed that the older children were out of the home for a period in excess of one year.

During two of the times that the children were removed from the home, Mr. Green was in prison on drug-related charges. Despite his completion of drug and alcohol treatment, Mr. Green admitted to both his continued use of and the manufacture of methaphetamine. He testified that he would be going to be in the custody of the Department of Correction for a third time for charges including theft by receiving, felon in a possession of a firearm, distribution near a church, and manufacturing methamphetamines. He stated that he would be receiving a sentence between "twenty years to forty to life." Arkansas Code Annotated § 9-27-341(b)(3)(B)(viii) (Repl. 2002 & Supp. 2003) provides that a parent's rights may be terminated if the parent is sentenced in a criminal proceeding for a period of time which would constitute a substantial period of the juvenile's life and the juvenile has been out of the home for the requisite time period. See Thompson v. Arkansas Dep't of Human Servs., 50 Ark. App. 141, 954 S.W.2d 292 (1997).

Mrs. Green argues that she was victim of circumstance. She blames her roommate during the time her husband was in prison for manufacturing methaphetamine and claims that her positive drug screen from February 2003 was the result of Mr. Green's use of methaphetamine in her presence, not her direct use. She argues that she completed case plans developed by the Department of Human Services which included, among other things, her completion of drug and alcohol treatment programs and a domestic violence program.

The completion of the case plan is not determinative. Wright v. Arkansas Dept. of Human Services, ___Ark. App. ___, 115 S.W.3d 332 (2003). What matters is whether her completion of the case plan achieved the intended result of making her capable of caring for her child. Id. The rights of parents are not proprietary and are subject to their related duty to care for and protect the child and the law secures their preferential rights only so long as they discharge their obligations. Id.; Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980). See also Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Kirk v. Jones, 178 Ark. 583, 12 S.W.2d 879 (1928), State v. Grisby, 38 Ark 406 (1882). The unfitness for which this preferential right to custody may be forfeited can result from a parental failure to discharge any of the correlated duties of parenthood. In Grisby it was stated that this preference for natural parents is based on a presumption that they will take care of their children, bring them up properly and treat them with kindness and affection, and when that presumption has been dissipated equity will interfere and place the child where those parental duties will be discharged by another. Jones v. Jones, 13 Ark. App. 102, 108, 680 S.W.2d 118, 121 (1984).

Appellant's continued denial of personal responsibility for endangering her children demonstrates that she manifested either indifference or an inability to remedy the subsequent issues and properly protect the children. Wright, supra; Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000); see also Ullom v. Arkansas Dep't of Human Servs., 67 Ark. App. 77, 992 S.W.2d 813 (1999); Corley v. Arkansas Dep't of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1994).

Despite her completion of the case plan, Mrs. Green continued to reside in a home where drugs were present and were being manufactured. Neither parent in this case could or would change their situation in order to remove the use of drugs and the manufacture of drugs from their home. As a result of this failure, Green's four children were repeatedly exposed to drug use and the dangerous methamphetamine manufacturing process. Under these facts, we cannot say that the trial court erred in terminating appellants' parental rights.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.