Jоyce CARROLL and Mark Murphy v. ARKANSAS DEPARTMENT of HUMAN SERVICES
CA 03-788
Court of Appeals of Arkansas Divisions III and IV
Opinion delivered February 25, 2004
148 S.W.3d 780
In sum, GPI transferred all of its rights of any significance in the lease, including options to renew, to Adous. Adous faithfully performed in a timely manner for a number of years, until he was compelled to file suit for specific performance in May 2001 because the Abernathys refused to accept rent tendered directly by him. As in Gagne, supra, there was no reversionary estate remaining to GPI. I cannot say that the trial court‘s characterization of this contractual arrangement as an assignment despite the parties’ labeling it as a sublease was clearly erroneous.
Gray Allen Turner, for appellee.
Janet L. Bledsoe, attorney ad litem.
ANDREE LAYTON ROAF, Judge. Joyce Carroll and Mark Murphy appeal from an order terminating parental rights to their two daughters. Their sole argument on appeal is that the trial court erred in finding that termination was in the best interest of the children because there was not clear and convincing evidence that there would be potential harm to the children by continued contact with them. We affirm.
Arkansas Department of Human Services (DHS) filed a Petition for Emergency Custody for appellants’ minor children, A.M. and C.M., alleging that the children were dependent-neglected due to ongoing exposure to drugs, pornography, and lack of a stable home and financial support. Specifically, the petition stated that Joyce and her minor children rеsided in a motel; that Mark was incarcerated; that the children had been abandoned, abused, neglected, and sexually abused; and that removal was necessary for the protection of the minor children.
The affidavit attached to the petition indicated that on February 14, 2002, Joyce Carroll took a Polaroid photograph to the Rogers Police Department of her two-year-old daughter, A.M., holding a man‘s penis. Detective Dеbbie Crews contacted a DHS worker with information on the child pornography case, and a search warrant was issued for Joyce‘s home where another pornographic photo of A.M. was found, along with adult pornography and drug paraphernalia. Darrell Nash was arrested for child pornography, rape, and sexual assault. Joyce and the children lived with Nash for a year while he exposed the children to pornogrаphic magazines, smoked marijuana in their presence, shot crank, and left syringes in places accessible to the children. The affidavit described the house as a typical “crank house,” and alleged that Joyce and Mark would blow marijuana smoke in the children‘s faces to help them sleep.
The affidavit also stated that Joyce had a prior history with DHS. According to the affidavit, she was turned over to DHS after her stepfather sexually abused her. This abuse resulted in a preg-
On February 28, 2002, at the probable cause hearing, Joyce and Mark stipulated to probable cause. Based on their stipulation, the court found that probable cause existed and that the best interest of the children mandated that they remain in DHS‘s custody, pending an adjudication hearing. An adjudication hearing was held on March 26, 2002, and Joyce and Mark again stipulated to the allegations set forth in the affidavit. The trial court ordered Joyce and Mark to obtain stable employment; obtain and maintain stable, safe, and appropriate housing; аttend and complete twenty hours of parenting classes; complete drug and alcohol assessments; comply with the homemaker services; attend counseling; attend regular visitation with their children; obtain safe and reliable transportation; obtain and complete an affidavit of financial means; and make child support payments in accordance with state law, with a minimum payment of $35 per week.
Review hearings were held in June and September 2002. DHS presented evidence that, while there was partial compliance with the case plan, the parents were expending over $750 per month to live in motels, having declined to live at the Salvation Army or in areas with Hispanic populations; that both parents had refused to complete drug screening and drug testing in July and September; that they had not paid court ordered child support; and that they had completed only two of the twenty hours of required parenting classes. At the final review hearing, the trial court commented on the parents’ refusal to seek housing in certain areas, and their choice to continue to live in hotels despite their meager income. The court ordered Joyce and Mark to submit to random drug tests twice a month. Joyce and Mark were directed to provide certificates of completion for the parеnting classes immediately to DHS, and to make arrangements for counseling.
At the permanency planning hearing, held on November 26, 2002, DHS recommended termination. There was evidence that Mark and Joyce still had not found their own housing, and continued to refuse drug testing. At the conclusion of the permanency hearing, the court stated that the lack of stable housing and
The termination hearing was held on March 3, 2003. The previous hearings were incorporated by reference and a copy of an order terminating Joyce Carroll‘s parental rights on October 27, 1998, was introduced into evidence. Additionally, the evidence showed that Joyce and Mark had not completed their counseling sessions, nor had they consistently complied with the random drug test. Both parents had tested positive for marijuana. They had moved from place to place a total of twelve times, and did not have stable housing or reliable transportation of their own. While Mark had held several jobs, Joyce had not been consistently employed, and the parents had not paid the court-ordered child support. The caseworker assigned to A.M. and C.M. testified that the girls were in foster care, were receiving serviсes, and that it is likely that they will be adopted. As a result, the court ordered termination of Joyce and Mark‘s parental rights.
On appeal, Joyce and Mark argue only that the trial court erred in finding by clear and convincing evidence that continued contact with them would result in a likelihood of potential harm to their children. They contend that in order to terminate the parental relationship, DHS must prove by clear and convincing evidenсe both a statutory basis for termination and that termination is in the best interest of the child. They do not contend that there was not sufficient proof of a statutory basis for termination, but challenge only the sufficiency of the proof as to the best interest of the children. They argue specifically that, while evidence presented raised issues that were of concern to DHS as to why the children could not return home, the proof failed to estаblish by clear and convincing evidence that continued contact with the parents would potentially harm the children. They cite no authority for their argument, and do not say what the “continued contact,” would be in the context of this proceeding, in terms of visitation, supervised or not, or in terms of outright return of custody.
It is well settled that grounds for termination of parental rights must be proven by clear and convincing evidence. M.T. v. Arkansas Dep‘t of Human Servs., 58 Ark. App. 302, 305, 952 S.W.2d 177, 179 (1997). When the burden of proving a disputed fact is by “clear and convincing evidence,” the question on appeal is whether the trial court‘s finding that the disputed fact was
The goal of
An order forever terminating parental rights shall be based upon a finding 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 juvenilе will be adopted if the termination petition is granted;
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, putative parent or parents.
(Emphasis added). Therefore, the plain language of the statute provides that the court must find by clear and convincing evidence that termination is in the child‘s best interest, giving consideration to the risk of рotential harm. The risk of potential harm is but a factor for the court to consider in its analysis.
However, in the case before us, there was a great deal of evidence presented by DHS on the issue of whether it would be in the children‘s best interest for parеntal rights be terminated. The evidence demonstrated that potential harm might result if Joyce and Mark continued contact with A.M. and C.M., including the fact that this case arose primarily from appellants’ ongoing and adverse living arrangements that resulted in sexual abuse of their two-year-old daughter, exposure to drug use, pornography, and an unsafe environment, which prompted DHS‘s involvement in the first place. Significantly, Joyce and Mark persistently failеd to secure stable housing for their family throughout the course of this case, choosing to stay in costly motels or overcrowded apartments. They lived in twelve different locations, refused shelter at the Salvation Army, and refused to seek housing in areas where other ethnic groups reside: Their failure to secure safe and appropriate housing of their own is contrary to their children‘s well-being and best interest. See Bearden v. Arkansas Dep‘t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001); Dinkins, supra.
Joyce and Mark alsо failed to secure stable employment. While Mark was employed off and on, he was not able to secure finances that would provide meaningful support for his family, including stable housing. The failure to secure stable employment is contrary to the girls’ health and safety, see Dinkins, supra, and supports the trial court‘s decision to terminate their parental rights. Bearden, supra; Dinkins, supra.
Additionally, appellants failed to complete their weekly counseling sessions, and they rеfused on several occasions to submit to random drug testing. In fact, both Joyce and Mark tested positive for marijuana on February 11, 2003, after their
The dissent contends that we may not affirm this case based upon the appellants’ stipulation to probable cause, because the facts contained in DHS‘s affidavit are not in evidence as admissions by virtue of the stipulation to probable cause. There are several problems with this position. First, the appellants, through their counsel, stipulated to both probable cause and the later adjudication оf dependency/neglect based upon the same affidavit. The trial court explicitly stated that the finding of probable cause was based upon the stipulation and the information available in the affidavit. The dissent asserts, without authority, that the trial court could consider the evidence contained in the affidavit only for the purpose of the emergency probable cause hearing, and does not address the appellants’ stipulation to the same facts at the subsequent adjudication hearing.
In Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989), this court stated that:
Agreed stipulations of what a witness would testify to if present is an accepted method of presenting proof. The stipulation is accepted only as testimony and not as an admission of the facts testified to. The trier-of-fact is free to give it such weight as it deserves and is free to accept it or reject it in whole or in part. [Citations omitted.]
Clearly, the trial court was аuthorized to consider the evidence contained in the DHS affidavit as testimony, and to accept or reject it in whole or in part.
Moreover, in this appeal, appellants do not challenge the use of the affidavit, or even the sufficiency of the evidence of a statutory basis for termination. Accordingly, the sufficiency of the evidence to support removal of the children and to support the adjudication of dependency/neglect, for which the affidavit was used, are not issues which even need to be addressed in this appeal.
It is also important to note that, while again not an issue raised by appellants, at least three separate bases existed for terminating their parental rights. First, reunification shall not be
Affirmed.
STROUD, C.J., ROBBINS, GRIFFEN, and BIRD, JJ., agree.
BAKER, J., dissents.
KAREN R. BAKER, Judge, dissenting. The majority affirms this case based upon the conclusion that when appellant stipulated to probable cause at the probable-cause hearing, she stipulated that each and every allegation set forth in the affidavit attached to thе petition was true. That is not the case.
Hearsay is not excluded at the probable cause hearing and the affidavit was filled with hearsay upon hearsay. No separate evidence of the facts alleged in the complaint and upon which the majority relies was introduced. Without those allegations being deemed as admitted, there is insufficient evidence to support the trial court‘s termination of parental rights.
For us to hold that a parent‘s stipulation to probable cause results in an admission of each alleged fact is legally and procedurally unsound. First, the purpose of a probable cause hearing is specifically limited “to the purpose of determining whether probable cause existed to protect the juvenile and to determine whether probable cause still exists to protect the juvenile.”
There has traditionally been an exception to the right of confrontation where a witness whо testified at a prior trial is unavailable at a later judicial proceeding. State evidentiary rules can fall within this exception if two tests are met. First, the witness must be “unavailable“.... Next, the evidence must be reliable.... [A]dmission depends upon the circumstances surrounding the hearing. In the case of a preliminary hearing admission depends upon what kind of hearing is involved and whether it is a “full fledged” hearing or a limited one.
(Citations omitted.) Compare Hamblen v. State, 44 Ark. App. 54, 866 S.W.2d 119 (1993) (holding that testimony of child‘s mother during
In Scott v. State, supra, the court found that the transcript of the probable cause hearing was not reliable because it violated the rules of evidence and violated the defendant‘s Sixth Amendment right to confront a witness. The court reasoned that:
The appellants were represented by attorneys but were not obligated to cross-examine the witness. To presume that they should have done so would be to presume that they knew that the testimony could be used later in the absence of the witness. That would mean a preliminary hearing could not be one solely to learn if only probable cause existed.
Id. at 95, 612 S.W.2d at 113. The sole purpose of the probable cause hearing is to determine whether probable cause existed.
Second, this limitation is necessary given the emergency nature of probable cause hearings and given that “[a]ll probable cause hearings are miscellaneous hearings as defined in Rule 1101(b)(3) of the Arkansas Rules of Evidence, and the rules of evidenсe, including, but not limited to, the Hearsay rule, Rule 802 of the Arkansas Rules of Evidence, are not applicable.”
Without the admission of those facts into evidence, insufficient evidence supports the termination of parental rights. Regarding the employment issues, the testimony was that Mark was consistently employed even though he had various jobs throughout the time period. In fact, his reluctance to apply for housing in another community was based on transportation considerations related to his employmеnt. The majority‘s characterizations of the
Therefore, I would reverse.