Sherri CHAFFIN, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee
No. CV-15-423
Court of Appeals of Arkansas, DIVISION I.
September 30, 2015
2015 Ark. App. 522
We13 hold that the evidence and testimony at the hearing established (1) that appellant initially exhibited a lack of regard for appellee‘s opportunity and time to be with J.W. (2) that appellee met his statutory burden for an award of custody; (3) that appеllee‘s request for joint custody provided both parties with meaningful interaction with J.W. which all of the witnesses testified was important and necessary; and (4) that an award of joint custody was in J.W.‘s best interest. It is undisputed that appellant testified at the final hearing that she was willing to follow the circuit court‘s orders in the future and desired to co-parent with appellee. Appellee also expressed a desire to co-parent with appellant. Based on the circuit court‘s opinion that both parties are “appropriate for the placement of the minor child in their care and custody,” and its determination to level the playing field by awarding joint custody, we affirm the circuit court‘s award of joint custody.
Affirmed.
Whiteaker and Hoofman, JJ., agree.
Mischa K. Martin, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
M. MICHAEL KINARD, Judge
Sherri1 Chaffin appeals from an order terminating her pаrental rights to her four minor children. She argues that the evidence does not support the trial court‘s finding of a statutory ground for termination or its finding that termination was in the children‘s best interest. She also contends that she was not afforded legal counsel in a timely fashion. We affirm.
Appellant and the children‘s father divorced in 2005, when appellant was in federal prison, and the father was awarded custody. The children were removed from the custody of their father in July 2013 due to inadequate supervision and the father‘s drug use. One of the children, then twelve years old, had been left home alone; two thieves werе discovered in the home at around 1:00 a.m., hiding from the police; the parents could not be reached; the home contained little food and no water or furniture; and, once located, the father tested positive for methamphetamine. Probable cause and adjudication heаrings and orders soon followed, with the children being found to be dependent-neglected and custody being placed with the Arkansas Department of Human Services (DHS). A case plan developed by DHS was approved by the trial court and required, inter alia, that appellant undergo a psychological evaluation; attend regular psychological counseling; obtain and maintain stable employment and provide proof of financial stability; attend parenting classes and demonstrate parenting skills learned; and maintain safe and appropriate housing.
Over the next eighteen months, sеrvices were offered to appellant and the children‘s father, and a number of review and permanency planning hearings were held. The father was rarely present at the hearings, he did not visit the children, and his whereabouts were often unknown to DHS or the court. Appellant partially complied with the case plan: she underwent the psychological evaluation but soon dropped out of counseling, failed to attend parenting classes, and never got a job. She, too,
The termination of parental rights is a two-step process. The trial court must find by clear and convincing evidence (1) the existence of one or more statutory grounds for termination and (2) that termination is in the best interest of the children. Harbin v. Arkansas Department of Human Services, 2014 Ark. App. 715, 5, 451 S.W.3d 231. On appeal, sufficiency of the evidence is determined by whether the trial court‘s finding that the fact was proved by clear and convincing evidence is clearly erroneous. McDaniel v. Arkansas Department of Human Services, 2013 Ark. App. 263, 2013 WL 1776479. A finding is clearly erroneous when the appellate court is, on the entire evidenсe, left with a definite and firm conviction that a mistake has been made. Id. In deciding whether a finding of the trial court is clearly erroneous, we give great deference to the superior opportunity of the trial court to observe the parties and to judge the credibility of witnesses. Id.
Appellant first contends that the evidence is insufficient to support either of the two statutory grounds for termination found by the trial court in this case, namely, that appellant had failed to remedy the conditions that caused removal of the children under
Appellant14 did not object below to the perceived lack of factual specificity of the petition to terminate her parental rights, and that argument cannot be raised for the first time on appeal. See Thompson v. Thompson, 2012 Ark. App. 296, 2012 WL 1435660. Moreover, appellant did not request specific findings of fact from the trial court, and she cites nothing for the proposition that the court is otherwisе obligated to expressly make specific findings to support its conclusion. Indeed, in the absence of a statute or rule requiring specific findings of fact or a timely request for specific findings under
Therefore, appellant‘s attack on the sufficiency of the evidence to support the
Appellant next contends that the trial court erred in finding that termination of her parental rights was in the children‘s best interest. We find no error on this point.
The15 best-interest analysis includes consideration of the likelihood that the children will be adopted and of the potential harm caused by returning custody of the children to the parent.
Here, the termination hearing was held eighteen months after the children had been taken into DHS custody. During that time, appellant was never in full compliance with the case plan. Although she attended the оrdered psychological evaluation fairly shortly after the case had begun, she admitted to the examiner that she had stopped attending the required counseling sessions for some period. Nine months into the case, appellant was incarcerated for a short time for writing hot checks. As late as fifteen months into the case, the trial court found that appellant still had not completed parenting classes; in fact, there was evidence16 that she did not provide the required proof of completion until the morning of the termination hearing. Appellant admittedly has not worked since the case began. Her only income is $733 in disability and $75 in food stamps monthly. She is living in a two-bedroom apartment but apparently moved there only recently. She still has no means of transportation. She missed several hearings in this case and, since 2012, has visited with her children only eight to ten times. She admitted thаt she knew since at least 2012 that her ex-husband was abusing methamphetamine but took no action to try to protect the children. Moreover, the children in this case were all at least twelve years old, and three were at least fourteen, and there was evidence that they neither wanted to live with appellant nor even wished to visit her. The DHS caseworker testified, and appel-
Additionally, witnesses familiar with the case expressed serious concerns for the children‘s welfare should appellant regain custody. DHS caseworker Darby Miller and court-appointed speciаl advocate Sarah Hite both opined that appellant‘s current living arrangements, lengthy housing instability, and lack of employment and financial stability would put the children at risk. Ms. Darby further testified that appellant seemed more interested in herself than her children. Ms. Darby also expressed concеrns over appellant‘s frequent erratic behavior, including her focus on “conspiracy theories and people out to get her,” including a recent phone conversation between the two women where appellant claimed that she “was a witness to something in jail” and had beеn “in contact with witness protection.”
Appellant17 testified that she had recently completed parenting classes and was attending counseling sessions. She stated that she had moved into a two-bedroom apartment, which she thought was adequate for her and her four teenaged children, and that she had applied to HUD for a larger residence. She blamed her recent incarceration on some unknown thief who she said had stolen her checks and forged her name. She blamed her failure to attend court and failure to visit the children in part on a lack of assistance from DHS. At the end of the heаring, appellant‘s attorney pleaded, “She just needs more time or services from [DHS] to maybe rehabilitate this relationship with the kids.”
The intent of our termination statute is to provide permanency in minor children‘s lives in circumstances where returning the children to the family home is contrary to the their health, safety, or welfare, and where the evidence demonstrates that the return cannot be accomplished in a reasonable period of time as viewed from the children‘s perspective.
Appellant finally argues that the trial court erred in not appointing counsel for her at the early stages of the dependency-neglect proceedings. We disagrеe. First, we do not read18 the statute as entitling appellant to appointed counsel prior to the decision to proceed with termination as the goal.
(h)(1)(A) All parents and custodians have a right to counsel in all dependency-neglect proceedings.
(B) In all dependency-neglеct proceedings that set out to remove legal custody from a parent or custodian, the parent or custodian from whom custody was removed shall have the right to appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was remоved is indigent and counsel is requested by the parent or custodian.
(C) Parents and custodians shall be advised in the dependency-neglect petition or the ex parte emergency order, whichever is sooner, and at the first appearance before the court, of the right to
counsel and the right to appointed counsel, if eligible.
(D) All parents shаll have the right to be appointed counsel in termination of parental rights hearings, and the court shall appoint counsel if the court makes a finding that the parent is indigent and counsel is requested by the parent.
(Emphasis added.) Here, appellant was not a parent “from whom custody was rеmoved.” While she had a right to be represented by counsel at all stages of the proceedings, she was not entitled to appointed counsel under the statute before the process moved to termination of her rights. It is clear that counsel was appointed for appellant аt least a month before the hearing on the petition to terminate parental rights.
In any event, the record does not indicate that appellant ever requested counsel as the statute requires. And, finally, there is authority for the proposition that any “failure” to appoint counsel at early stages of the dependency-neglect process is harmless if the parent has an attorney prior to the termination hearing. See Briscoe v. State, 323 Ark. 4, 912 S.W.2d 42519 (1996); Jefferson v. Arkansas Department of Human Services, 356 Ark. 647, 168 S.W.3d 129 (2004).
Affirmed.
Abramson and Brown, JJ., agree.