M.T. v. Arkansas Dept. of Human Services

• Decision Date: 17 September 1997
• Docket Number: No. CA,CA
• Citation: 58 Ark.App. 302,952 S.W.2d 177
• Parties: M.T., Appellant, v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee. 96-949.
• Court: Arkansas Court of Appeals

Page 177

952 S.W.2d 177

58 Ark.App. 302

M.T., Appellant, v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.

No. CA 96-949.

Court of Appeals of Arkansas,

Division II.

Sept. 17, 1997.

Anne Orsi Smith, Little Rock, for Appellant.

Kathleen Bailey O'Connor, Guardian Ad Litem, Little Rock, for the minor child.

Louis "Whit" Light, Little Rock, for Appellee, JL.

Stephen B. Whiting, Little Rock, for Appellee, Arkansas Department of Human Services.

STROUD, Judge.

In June 1995 the Arkansas Department of Human Services filed a petition to terminate the parental rights of M.T. in her biological son, J.L., Jr. The case came before the chancellor in December 1995. At the beginning of the hearing DHS made an oral motion to withdraw its petition, stating that it wanted instead an adjudication of paternity and placement of the child with the natural father. The guardian ad litem responded that the maternal parental rights should be terminated. The natural father, intervenor in this action, stated that he also wanted M.T.'s parental rights terminated but that he would be willing to permit visitation at some point in the future. He asked that the court determine him to be the father of the child.

The chancellor denied the motion of DHS to withdraw the petition, proceeded with the hearing, and granted the petition to terminate M.T.'s parental rights. He ordered legal custody of the child to continue with DHS and placement of the child with the biological father until such time as the paternity action could be adjudicated.

M.T. now appeals, raising three points. She contends that the chancellor erred by not allowing DHS to withdraw its petition, that termination of parental rights was not necessary to clear the child for permanent placement, and that the trial court erred in finding clear and convincing evidence supporting termination of appellant's parental rights. We affirm, addressing the last point first.

Grounds for termination of parental rights must be proven by clear and convincing evidence. Ark.Code Ann. § 9-27-341(b) (Supp.1995). When the burden of proving a disputed fact in chancery is by "clear and convincing" evidence, the question on appeal is whether the chancellor's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of witnesses. Beeson v. Arkansas Dep't of Human Servs., 37 Ark.App. 12, 823 S.W.2d 912 (1992). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Corley v. Arkansas Dep't of Human Servs., 46 Ark.App. 265, 878 S.W.2d 430 (1994).

Here, appellant's seven-week-old son had skull fractures when he was brought to Arkansas Children's Hospital in November 1993. Appellant said that he had been dropped by her boyfriend the night before while she was at work. SCAN filed a petition for emergency custody of the child, and he was released from the hospital to a foster home. At an adjudication hearing the next month, he was found to be a dependent neglected child. He was placed in foster care in the custody of the DHS and eventually placed in the home of his maternal grandmother. The boyfriend was ordered to have no contact with the child. After the first review hearing in March 1994, the child was returned to appellant's custody. A second emergency custody motion was filed in June 1994 alleging medical neglect of the child by appellant because of untreated and infected blisters on his feet as well as failure to thrive. The motion was granted, and the child was returned to his grandmother's custody. The grandmother notified the court several weeks later that she was not able to continue to keep the child in her home, and he was placed in the custody of DHS.

SCAN noted that appellant was hostile and had failed to cooperate with the caseworker. Appellant visited her son only sporadically and allowed the boyfriend to move back into her home. In September 1994 appellant's therapist notified SCAN that appellant no longer wished to receive services and that custody of her son was not important enough to her for her to comply with SCAN's requirements and the court's orders. Appellant discontinued visits with her son for several months, resumed them briefly, and discontinued them again. At the review hearing in April 1995 the goal of the case was changed to allow DHS to pursue termination of appellant's parental rights rather than reunification with her child. In the summer of 1995 appellant resumed visits with the child.

In matters involving the welfare of young children, the appellate court gives great weight to the trial judge's personal observations. In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). Here, the chancellor credited the testimony of the SCAN worker and discredited the testimony of appellant, noting her false assertions that the child was not fathered by her husband. He noted that appellant had shown little interest in her child until the petition to terminate her parental rights was filed. Our own review of the evidence, coupled with our deference to the chancellor on the credibility of the witnesses, shows that the...