Baker v. Arkansas Dept. of Human Services, 99-526.

• Decision Date: 13 January 2000
• Docket Number: No. 99-526.,99-526.
• Citation: 340 Ark. 42,8 S.W.3d 499
• Parties: Nakia BAKER v. ARKANSAS DEPARTMENT OF HUMAN SERVICES.
• Court: Arkansas Supreme Court

8 S.W.3d 499

340 Ark. 42

Nakia BAKER v. ARKANSAS DEPARTMENT OF HUMAN SERVICES.

No. 99-526.

Supreme Court of Arkansas.

January 13, 2000.

Blackmon-Solis & Moak, L.L.P., by: DeeNita Moak, Little Rock, for appellant.

David K. Overton, Little Rock, for appellees.

Kathleen O'Connor, Attorney Ad Litem, Little Rock, for appellee minors.

DONALD L. CORBIN, Justice.

Appellant Nakia Baker appeals the judgment of the Pulaski County Chancery Court terminating her parental rights to her children D.R., age 8, and C.R., age 6. For reversal, Appellant argues that the chancellor erred: (1) in finding that there was sufficient evidence to terminate her parental rights, and (2) by not placing the children with their maternal grandmother. Counsel for Appellant also seeks attorney's fees on appeal. The payment of such fees presents a significant issue in need of clarification or development of the law; thus, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(5). We affirm.

Facts and Procedural History

Appellant's minor children were taken into custody by Appellee Arkansas Department of Human Services ("DHS") on April 29, 1997. An emergency hearing was held on May 7, 1997, and the chancery court found that DHS had probable cause to bring the children into foster care. Evidence was introduced that Appellant had left the children with a friend, but then failed to return and pick them up. There was also evidence that C.R. had reported being sexually abused by Appellant's ex-boyfriend, who is also the custodial father of Appellant's two minor daughters. The chancellor ordered Appellant to submit to a psychological evaluation to determine what type of services, if any, she may need. Appellant was also ordered to attend parenting classes, submit to random drug screens, and obtain stable housing and employment.

An adjudication hearing was held on June 23, 1997, and the record reflects that there was testimony by the children involving allegations of sexual abuse. There was also testimony from the children's foster mother regarding the children's sexualized behavior, as well as the emotional problems they were experiencing. The chancellor found that the minor children were dependent-neglected and ordered that they remain in the custody of DHS. The court continued her orders from the emergency hearing, and further ordered Appellant to attend outpatient counseling with her children. At the conclusion of the hearing, the court specifically warned Appellant to cooperate with DHS or face losing her children permanently.

In response to the chancellor's orders, DHS instituted a family preservation case plan for Appellant and her children with the goal established as reunification. A review hearing was held on October 13, 1997, to determine if Appellant was complying with the chancellor's orders. It was revealed that Appellant had failed to attend outpatient counseling with either child after repeated request by the therapist. Testimony by the DHS caseworker also indicated that Appellant had missed two separate appointments for drug and alcohol assessments. C.R.'s therapist testified that the child was suffering from post-traumatic stress disorder and suffered from a history of sexual abuse, as well as a history of neglect. The therapist also testified that if the goal in the case was reunification, it would be necessary for the primary care giver to participate in therapy sessions.

A second review hearing was held over four months later on March 2, 1998. C.R.'s therapist testified that Appellant had started attending her son's therapy sessions in January. The therapist also testified that C.R. required incredible structuring and consistency, as well as constant supervision due to his tendencies to inappropriately touch other children.

Appellant testified that she was not currently employed due to health problems. She further testified that since September 1997, she had held four different jobs, the longest one was for a month and a half. Appellant admitted that she had not become involved in C.R.'s therapy until January, but blamed her lack of participation on the fact that she was depressed. She asked the chancellor to give her some more time to prove that she could be a productive parent. The chancellor agreed to Appellant's request and set the termination hearing for five months later. The chancellor, however, cautioned Appellant that termination of her rights would become the goal if Appellant failed to make any progress in the case.

The termination hearing was subsequently held on August 10 and September 14, 1998. The children's foster home case manager testified that of the eighteen visitations scheduled, Appellant missed ten of those visits. Furthermore, Appellant frequently failed to notify anyone that she was not showing up for visitation, leaving her children with the expectation that they were going to visit with their mother. Both the case manager and the children's foster mother testified that after Appellant failed to show up for visitation both children would become upset. D.R. tended to bottle his emotions up, while C.R. would become extremely aggressive, and it would sometimes take days to calm him down. During one of the visits that Appellant attended, she admitted to the case manager that during her previous visit, she had been in a bad mood and had taken some Valium and that people in the car with her had been smoking marijuana.

C.R.'s therapist testified that Appellant had become more involved in the child's therapy sessions until the middle of May 1998; after that date her attendance declined. The therapist admitted that he saw some improvement in Appellant's parenting skills, but further explained that such improvement was often short-lived, and he would then see reoccurrences of the same problems. He also testified regarding examples of situations where Appellant exhibited poor judgment in dealing with C.R., including bringing her fiancé and his daughter to a therapy session. Finally, the therapist testified that after a session attended by both Appellant and her fiancé, he discovered a substance he believed to be crack cocaine. Appellant, however, denied that it belonged to her or to her fiancé.

A representative from Suspected Child Abuse and Neglect ("SCAN") testified regarding her agency's repeated attempts to offer in-home parenting services to Appellant. As of February 1998, Appellant had only participated in two sessions, even though SCAN had made ten attempts to schedule appointments. The representative also testified that SCAN is only required to make two attempts at arranging parenting classes before a parent is put on an inactive list. Finally, the SCAN representative reported that the house Appellant was residing in had no stove, no refrigerator, and no beds and was in need of major repairs.

Appellant testified that she had missed visitation and therapy sessions due to health problems, as well as transportation problems. She blamed her inability to arrange parenting classes on conflicts with her schedule. She also argued that she was unable to avail herself of the parenting classes because SCAN discontinued the program. Appellant admitted, however, that after the SCAN program ended, her DHS caseworker provided her with a referral to Next Step Teen Parenting.

Appellant also alleged that the DHS caseworker failed to return her calls. The DHS caseworker testified, however, that he repeatedly attempted to contact Appellant, but that her phone was usually disconnected and the pager number she provided to him was incorrect. He also testified that he was aware of only two drug screens performed on Appellant, both of which were negative, even though he set up several other appointments for the drug screens and arranged transportation for Appellant. The caseworker concluded his testimony by recommending the termination of Appellant's parental rights. At the conclusion of the hearing, a report from Bridgeway Hospital was also admitted after C.R., who was five years of age at the time, had tried to hang himself with the belt from his robe. During the four weeks that C.R. was in Bridgeway, Appellant did not visit him at all, even after the staff encouraged her to visit the child.

After taking the matter under advisement, the chancellor issued a letter opinion on October 7, 1998, terminating Appellant's parental rights pursuant to Ark. Code Ann. § 9-27-341 (Supp.1997). The court recognized that Appellant had made some efforts to comply with her previous orders, but that such attempts had been inconsistent and none of the orders sought to rehabilitate her were ever completed. The chancellor further stated that Appellant's failure to visit with the children on a consistent basis had hurt both children, as evidenced by C.R.'s suicide attempt. The chancellor specifically found as follows:

The Court cannot say that Ms. Baker has made a good faith effort to try to rehabilitate herself or that she would suddenly begin following the Court's orders and actually rehabilitate herself within a reasonable amount of time consistent with both children's health, safety, and welfare. Both children have serious behavior problems, particularly C. R., which must be dealt with consistently and daily. Ms. Baker has shown a complete lack of understanding as to her children's needs and her level of participation.

An order terminating Appellant's parental rights was then entered on January 12, 1999. This appeal followed.

Standard of Review

Our law is well settled that when the burden of proving a disputed fact in chancery is by clear and convincing evidence, the question that must be answered on appeal is whether the chancery court's finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. J.T. v. Arkansas Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is that degree of proof that...