Osborne v. Arkansas Dept. of Human Services

• Decision Date: 07 March 2007
• Docket Number: No. CA 06-817.,CA 06-817.
• Parties: Glen OSBORNE, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.
• Court: Arkansas Court of Appeals

252 S.W.3d 138

98 Ark.App. 129

Glen OSBORNE, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.

No. CA 06-817.

Court of Appeals of Arkansas.

March 7, 2007.

Christian Legal Service, by: Leah Lanford and Leah Chavis, Conway, for appellant.

Gray Allen Turner, Arkansas Dep't of Health & Human Servs., Office of Chief Counsel, Little Rock, for appellant.

KAREN R. BAKER, Judge.

Appellant, Glen Osborne, appeals from the termination of his parental rights to his two children, T.O. and D.O. Appellant's sole argument on appeal is that the trial court erred in terminating his "parental rights by default, and then, in the written order of termination, relying on evidence from prior proceedings which were not incorporated into the termination hearing." We affirm.

This case began on January 3, 2005, when the Department of Human Services (DHS) removed two children¹ from appellant's home. A seventy-two-hour hold was placed on the children on January 5, 2005. A petition for emergency custody was filed on January 7, 2005, and an emergency order was entered that same day. The affidavit of facts attached to the petition for emergency custody stated that on January 5, 2005, the Child Abuse Hotline received a third report alleging that appellant was not adequately supervising T.O. and D.O. The report listed appellant's address on Pearl Street in Rogers, Arkansas. The affidavit stated that an investigation revealed that appellant left the children at home with a person named Kelly Hutchinson while he was at work. In appellant's home, however, the case worker found that there was no running water; that the only source of heat was the gas stove burner, which was turned on high; and that the children were "filthy."

After DHS initiated the seventy-two-hour hold on the children, the case worker returned to appellant's home to pick them up. When he arrived, he found that appellant had taken the children to a "friend's" home. The case worker spoke with appellant at that point, and appellant told him that his home was not suitable for the children and that he had a roommate who was using methamphetamine. The affidavit stated that it was believed, at that point, that appellant was living at the Traveler's Inn on Highway 71B in Rogers.

On January 26, 2005, a probable cause order was entered finding that there was probable cause to find that there were emergency conditions which necessitated removal of the children and that it was contrary to the welfare of the children to be returned to the home. Furthermore, an adjudication order was entered on March 31, 2005, finding that the children were dependent — neglected and that the allegations in the petition for emergency custody were true and correct. Specifically, as to appellant, the court found that at the time of the children's removal, appellant had failed to secure and maintain appropriate housing for them. He allowed them to remain in a home that lacked appropriate heat and water and that was environmentally hazardous to their health and safety. He also allowed them to be exposed to his roommate, who he admitted was using methamphetamine. The trial court further found that appellant lacked stable and appropriate housing for himself and the children and, therefore, had an ongoing inability to provide the children with necessary and appropriate shelter. Appellant advised the case worker that on the day the children were removed from his custody, he was living in a hotel in Rogers. Moreover, the court found that the children were in need of the services of DHS and that return to the custody of the parents was contrary to the welfare of the children and continuation of custody with DHS was in the best interest of, and necessary to, the protection of the children's health and safety.

The first termination-of-parental-rights hearing was scheduled for January 17, 2006. Appellant did not appear at the hearing. His counsel was present and explained to the court that she had not spoken with appellant, but that it was her understanding that he had called DHS the day before to request transportation to the hearing. Without objection from appellant's counsel, the trial court admitted numerous exhibits into evidence. For reasons unrelated to appellant's absence, the trial court then continued the termination hearing until February 10, 2006. Appellant also did not appear at the February 10, 2006 termination hearing. The following dialogue took place in regard to appellant's absence:

Ms. MULLINS: Your Honor, as to Glen Osborne, he is not present. At the last hearing, I believe Ms. Hamilton had requested a continuance, he was not here at that hearing. So, at this point, I would move for a Default Judgment in regards to him.

Ms. HAMILTON: Your Honor, at the last hearing I was under the impression that he was ill and not able to arrive for Court. He left a message at my office on January 17th while I was here. I tried to call him back, I've had no contact with him. I tried calling him this week — the number I have for him says he doesn't live there anymore. So, Your Honor, I don't know where he is, or anything.

Ms. SCRIBNER: I would have no objection to a Default Judgment, I think it would be appropriate.

THE COURT: All right. The Motion for Default Judgment of Termination of Parental Rights of Glen Osborne to [T.O.] and [D.O.] is granted. I find it is in those children's best interest that his parental rights be terminated. And that that matter, with regard to him, be set for further proceedings before this Court.

After the preceding dialogue, the termination hearing continued with testimony from the family service worker and the mother. After the termination hearing, the trial court terminated appellant's parental rights to T.O. and D.O. An Order Terminating Parental Rights of appellant to T.O. and D.O. was entered on April 11, 2006. The Order Terminating Parental Rights specifically and thoroughly addressed each element of the statute and the facts supporting each of those elements, as they pertained to appellant.

Our standard of review in termination-of-parental-rights cases is well settled. When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Cobbs v. Ark. Dep't of Human Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004) (quoting Johnson v. Ark. Dep't of Human Servs., 78 Ark.App. 112, 119, 82 S.W.3d 183, 187 (2002)). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Chase v. Ark. Dep't of Human Servs., 86 Ark.App. 237, 184 S.W.3d 453 (2004) (quoting Bearden v. Ark. Dep't of Human Servs., 344 Ark. 317, 328, 42 S.W.3d 397, 403-04 (2001)). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Pursuant to Ark.Code Ann. § 9-27-341(b)(3) (Supp.2005), the facts warranting termination of parental rights must be proven by clear and convincing evidence. 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. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). When the burden of proving a disputed fact in equity is by clear and convincing evidence, the question that we must answer on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Brewer v. Ark. Dep't of Human Servs., 71 Ark.App. 364, 43 S.W.3d 196 (2001). We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. McFarland v. Ark. Dep't of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005). Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. See id.

An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. Ark.Code Ann. § 9-27-341(b)(3)(A). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B). One such set of circumstances that may support the termination of parental rights is when the "juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent." Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a).

We first address the portion of appellant's argument that alleges that the trial court erred in terminating his parental rights "by default." We recognize that the trial judge used the term "default judgment," but the judge clearly misspoke given that the court evaluated the evidence and made factual determinations before terminating appellant's parental rights. See Diebold v. Myers Gen. Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987) (holding that when a judgment is based upon evidence presented to the court at a trial, as opposed to being based on the failure of a party to appear or attend, the judgment is not a default judgment, and this rule does not apply). The trial court's extensive consideration of the evidence was appropriate and necessary given that the nature of the proceedings involved fundamental rights.

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