ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

GORDON LANCE WALTHER (WALTHERS)

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-1282

JUNE 23, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. JV2003-84]

HONORABLE MARK HEWETT,

CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Gordon Walthers, appeals from an order terminating his parental rights to his minor son, D.W., born March 17, 1992, and authorizing the Department of Human Services (DHS) to consent to adoption. Appellant's sole point on appeal is that the trial court erred in finding that there was clear and convincing evidence supporting termination of appellant's parental rights. We affirm.

When reviewing termination of parental rights cases, we recognize that 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. Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Pursuant to Arkansas Code Annotated section 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. Dep't of Human Servs., supra.

The stated intent of Arkansas Code Annotated section 9-27-341 (Repl 2002) 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 section 9-27-341(b)(1)(a), 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:

. . . .

(i) A parent has abandoned the juvenile;

. . . .

(ii) (4 ) Have had his or her parental rights involuntarily terminated as to a sibling of the child.

Appellant testified that his parental rights to two other children had been involuntarily terminated by the State of California in 2002. He explained that he understood that if he could have satisfied the California court that he had an appropriate home for those two children they could have been returned to him, but that he had failed to do so for almost two years prior to the court's termination of his rights. He did not appeal that decision. Therefore, there was clear and convincing evidence that appellant's parental rights had been involuntarily terminated as to a sibling of D.W., satisfying subsection (b)(3)(B)(ix)(a)(4) of the statute.

However, before appellant's parental rights as to the child in this case may be terminated, there must also be clear and convincing evidence that it is in the best interest of the juvenile pursuant to subsections (b)(3)(A)(i) and (ii). Conn v. Arkansas Dep't. of Human Servs., 79 Ark. App. 195, 85 S.W.3d 558 (2002). Therefore, our review must also examine whether the trial court clearly erred in finding that termination of appellant's parental rights was in D.W.'s best interest.

The evidence presented at trial showed that D.W.'s mother abandoned him at birth. Appellant testified that D.W. was left in the care of him and his then girlfriend, Ms. Owens. D.W. was taken into the custody of DHS in 1992 due to issues of abuse and neglect. D.W. was returned to his father's custody in 1994. Appellant testified that in 1996, he left the State of Arkansas leaving D.W. in the care of Ms. Owens. From that time until December 2002, his son was left in the care of Ms. Owens with whom he had fathered another child. From 1996 until December 2002, he never sent D.W. or Ms. Owens any money for support, and he never visited with D.W. in person. He did say that he spoke with D.W. by phone once or twice a month during that six-year time period. However, he never sent D.W. any presents or cards for special occasions such as birthdays or Christmas. He further testified that he had no contact with school personnel or medical providers regarding his son's welfare during the entire six-year period. In fact, he did not know which school D.W. attended. Appellant had throughout this time period lived in many different locations and in various states. He had fathered six children, none of whom he nurtured by living in the same home, although his wages were garnished for court-ordered child support.

Appellant explained in his testimony that in December 2002, Ms. Owens contacted appellant and informed him that she could no longer "handle" appellant's son and sent D.W. to Nevada. He acknowledged that at the time Ms. Owens contacted him and sent D.W. to him, he had no plans to see D.W. While D.W. was with him, he saw scars on D.W.'s head and had come to believe that Ms. Owens had been physically abusive to D.W. while he was in her care. He also testified that when D.W. came to live with him, that he shared an apartment with roommates. After D.W. was returned to Arkansas by court order at the end of January 2003, one of those roommates stole appellant's rent money forcing him to move into an apartment with his present girlfriend. He explained that he had just "gotten in with the wrong people."

In addition to appellant's testimony, the original caseworker, Patsy Chase, testified that she believed D.W. was adoptable, and that she believed he would thrive if he had a stable and nurturing environment. She also testified that when she came to pick up D.W. in Nevada, appellant had provided no clothes or personal effects for D.W. because he didn't think D.W. would need them. Further, based upon her observation of the interactions between the father and son, she agreed with other reports in the record that appellant seemed disengaged from D.W. Evaluations in the record also indicate that D.W. is of average intelligence and abilities.

The purpose of our statutes regarding termination of parental rights 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[.]" Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2003). The child in this case was born in March of 1992, and had been in appellant's care only from some time in 1994 until some time in 1996. In other words, D.W. was in appellant's care for less than two of his thirteen years. Appellant had no plans to even see D.W. prior to the time Ms. Owens sent him to live with appellant. Appellant provided no physical or emotional support to D.W. during the preceding six years. Personal observations of the case worker indicated that any expectation that appellant could adequately meet D.W.'s needs was unrealistic.

The trial court found that DHS had an appropriate permanency plan for D.W., namely adoption, and that it was in his best interest that the petition be granted. The court found that appellant had abandoned D.W. in 1996 by leaving the State of Arkansas without him and that his parental rights had been involuntarily terminated by the State of California as to two of D.W.'s siblings. The court specifically found that there was a threat of great harm to the health and safety of D.W. by continued contact between appellant and D.W.

Given all of the evidence presented in this case, we cannot say the trial court clearly erredin finding that it was in the best interest of D.W. to grant the petition terminating appellant's parental rights.

Accordingly, we affirm.

Vaught and Roaf, JJ., agree.