Phillips v. Arkansas Department of Human Services , 85 Ark. App. 450 ( 2004 )

Olly Neal, Judge.

This is an appeal from the Juvenile Division of the Benton County Circuit Court, terminating appellants’ parental rights as to their minor child, J.P. On appeal, appellants do not challenge the sufficiency of the evidence used to terminate their parental rights; instead, they contend that the trial court committed reversible error because it failed to hold a permanency planning hearing. We affirm.

The standard of review in termination of parental rights cases is well-settled.

Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Department of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997). Pursuant to Ark. Code Ann. § 9-27-341 (b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). 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. Id. Furthermore, we will defer to the trial court’s evaluation of the credibility of the witnesses. Crawford v. Department of Human Services, supra.

Wright v. Arkansas Dep’t of Human Servs., 83 Ark. App. 1, 3, 115 S.W.3d 332, 333 (2003).

The facts are that on October 10, 2002, J.P. was with appellant Tina Marie when she was arrested at Wal-Mart for shoplifting. Appellant Billy Don did not accompany the family to Wal-Mart, but arrived to retrieve his son shortly after Tina Marie’s arrest. The following day, October 11, 2002, the Arkansas Department of Human Services (DHS) received a child abuse hotline report, indicating inadequate supervision and environmental neglect ofJ.P. Jason Smith, a DHS investigator, went to the residence accompanied by the police. Based on Smith’s observations of Billy Don exiting a trailer located next to the family’s residence that emanated a strong odor, along with the presence of residue around Billy Don’s mouth, Billy Don’s admission to “huffing,” Billy Don’s belligerent speech, a report from Billy Don’s sister, Karen Dutton, that an aunt, Bernice Bishop, left the child in Dutton’s care because Billy Don was “huffing,” and the environmental conditions of the family residence (no electricity or running water), DHS exercised a seventy-two hour hold on J.P.

On October 14, 2002, an emergency order was entered, which placed J.P. in DHS custody. On October 21, 2002, the trial court held a probable-cause hearing. The trial court found that J.P. was dependent-neglected, and that an emergency situation required his removal from appellants’ custody. At that time, the following exchange between counsel was had:

Dhs Counsel: Based on the prior terminations in this matter against this family, and the circumstances at this time, I believe that it is the Department’s intent to file a notice of no reunification services, as well as a petition to terminate parental rights in this matter. And we would ask that both of those, along with the adjudication, be set for one day, in an attempt to fast track this matter. And I would ask that the Department be allowed to have that at a forty-day adjudication no reunification termination, to allow sufficient time to prepare the case.

Appellants’ counsel: Your Honor, I have no objection to the hearing being set for forty-five days.

Subsequently, the court ordered that J.P. remain in DHS custody, pending the adjudication hearing. On November 4, 2002, DHS filed notice of its intention to terminate appellants’ parental rights based upon “the parent(s) subjecting the juvenile to aggravated circumstances and the prior involuntary termination of the parental rights of Tina Marie and Billy Don Phillips as to siblings of the above-named child.”¹

At the adjudication hearing on December 3, 2002, the trial court noted that the case was set for adjudication, that DHS intended to fast track the case, that DHS filed its notice of intent to seek a no-reunification-services finding, and that DHS had filed a termination petition. Thereafter, counsel for DHS stated as follows:

It’s my understanding that, in regard to the adjudication, the parents will stipulate. In regards to the no reunification services, the parents do not intend to contest that. That we would ask that the Court determine the permanency planning to be termination, and adoption at this point. And then the parents will not contest the termination of parental rights petition.

Counsel for the appellants replied:

I represent the parents, Billy andTina Phillips. I have explained to my clients their options, and their right to have a hearing for the dependency/neglect, and the no reunification, as well as the termination. It is their desire, at this point, not to contest that. They do stipulate to dependency/neglect, based on incarceration and the prior termination, and they believe it is in the best interest of their child; however, they would like to ask for one last visit.

In an exchange with the court shortly thereafter, the court asked appellants’ counsel if her clients were' stipulating that they knew they had the right to further hearings with regard to no reunification efforts, to which she replied:

Yes,Your Honor. I’ve explained that they have the right to have a hearing, to require the Department of Human Services to put on a case. I’ve explained their [options], and asked them what it is they prefer to do. And they’ve indicated to me, in fact, they told me that they do not contest the no reunification, nor do they contest termination. However, as I said, they would like one last visit.

Subsequent to this exchange, the court asked appellant Billy Don if he was satisfied with the representation of his attorney. He replied, “I don’t think I got no choice, do I? They got my little boy.” The court told Billy Don that he did have a choice — the choice to have a hearing. The court informed Billy Don that his attorney could not decide for him and that it was his choice. Billy Don informed the court, “I want a trial.” Tina Marie stated, “I’m gonna agree with my husband, and take it to trial.” Appellants’ attorney informed the court that she was ready to proceed.

Following the taking of evidence, the court noted DHS’s extensive relationship with this family and that appellants’ parental rights had been previously terminated as to other siblings. The court found that DHS had made reasonable efforts to preserve the family, including offering parenting classes, counseling, medication management, transportation services, visitation, and housing assistance. Thus, the court granted DHS’s motion for no reunification services, determining that the goal was termination.

Subsequently, DHS requested that the court “fast track” the case and grant its termination petition that very day. Defense counsel objected, stating that according to Ark. Code Ann. § 9-27-338 (Supp. 2001), a permanency planning hearing must be set within thirty days of the court filing a no reunification order. DHS responded that nothing in the statute prohibited the court from holding the permanency planning hearing immediately, given that it had already provided notice of no reunification and the petition to terminate. During its adjudication hearing, the court determined that jurisdiction continued and held a permanency planning hearing immediately thereafter. Subsequently, the court terminated appellants’ parental rights and this appeal followed. Appellants claim that the trial court erred when it “fast tracked” the case. We disagree.

Arkansas Code Annotated section 9-27-341² provides that the court may only consider a termination petition if there “is an appropriate permanency placement plan[.]” Section 9-27-341 must be read in harmony with Ark. Code Ann. § 9-27-338, which mandates a permanency planning hearing, providing in pertinent part that the court “shall hold a permanency planning hearing in order to enter a new disposition in the case” “no later than twelve (12) months after the date the juvenile enters an out-of-home placement,”. . . “or no later than thirty (30) days after the court files an order that no reunification services shall be made to reunite the juvenile with his family[.]” See Ark. Code Ann. § 9-27-341(a)(1) (Supp. 2001). (Emphasis added.)

The basic rule of statutory construction is to give effect to the intent of the General Assembly; in determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Turnbough v. Mammoth Spring School Dist. No. 2, 349 Ark. 341, 78 S.W.3d 89 (2002). We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction; however, the appellate court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Id. We will not interpret a statute in a manner that is contrary to the clear language of the statute; nor will we read into a statute language that is not there. See id. We will not interpret a statute so as to reach an absurd conclusion. Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994).

Appellants interpret Ark. Code Ann. § 9-27-338 to mean that the court could hold a permanency planning hearing only after it files a no-reunification order. Appellants’ interpretation is misplaced for two reasons. First, under section 9-27-338, the court is required to hold a permanency planning hearing “no later than twelve (12) months after the date the juvenile enters an out-of-home placement, ... or no later than thirty (30) days after the court files [a no- reunification order.]” (Emphasis added.) This “or” disjunctive located in the language of the statute does not provide the court with merely one option as to when it can hold a permanency planning hearing. Instead, the “no later than twelve (12) months after the date the juvenile enters an out-of-home placement,” portion of the statute could potentially provide the court the avenue to hold the hearing even before it has filed the no-reunification order. Second, the “no later than thirty (30) days after the court files [a no-reunification order]” section of this statute only sets an outer parameter for when the court should hold the hearing. Thus, the language in the statute of “no later than twelve (12) months after” and of “no later than thirty (30) days after” merely provide outside parameters for the court and does not hinder its ability to act prior to those parameters.

Although Ark. Code Ann. § 9-27-341 has been amended several times over, its stated purpose has remained unchanged — “to provide permanency in a juvenile’s life in all instances where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfaref.]” In this instance, appellants had previously had their rights involuntarily terminated as to three other children. Under Arkansas Code Annotated section 9-27-341, such a fact is an immediate ground for termination. Nevertheless, the trial court held an adjudication hearing at which it determined that no reunification services would be provided, and immediately thereafter, conducted the permanency planning hearing. Although the court had not filed the reunification order, it had announced its intention from the bench to provide no reunification services, and under our interpretation of the statute, there was no error in doing so. Accordingly, we affirm.

Affirmed.

Stroud, C.J., and Robbins, Vaught, Roaf, JJ., agree. Hart, Bird, Griffen, Crabtree, JJ., dissent.

1 It is undisputed that appellants had three other children for whom their parental rights had been terminated.

2 This code section was subsequendy amended to address the very issue that is subject to this appeal — whether a permanency planning hearing be held as a prerequisite to the filing of a petition to terminate parental rights, or as a prerequisite to the court’s considering a petition to terminate parental rights. The amended statute now provides that:

(B) This section does not require that a permanency planning hearing be held as a prerequisite to the filing of a petition to terminate parental rights, or as a prerequisite to the court’s considering a petition to terminate parental rights.

Ark. Code Ann. § 9-27-341(b)(l)(B) (Supp. 2003). Nevertheless, we must apply the statutes applicable when this appeal was brought.