King v. Ark. Dep't of Human Servs.

Cite as 2014 Ark. App. 278
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-13-1147
Opinion Delivered May 7, 2014
CYNTHIA KING
APPELLANT APPEAL FROM THE JOHNSON
COUNTY CIRCUIT COURT
V. [NO. JV-2012-66]
HONORABLE KEN D. COKER, JR.,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES
APPELLEE AFFIRMED
JOHN MAUZY PITTMAN, Judge
This is an appeal from an order terminating appellant’s parental rights to infant B.R.
and to school-age children C.K.1 and C.K.2. Appellant argues that the evidence at the
termination hearing was insufficient to prove either that she was provided with meaningful
reunification services or that the children would be harmed by remaining in her care. We
affirm.
Termination of parental rights is an extreme remedy and in derogation of the natural
rights of the parents. Jones-Lee v. Arkansas Department of Human Services, 2009 Ark. App. 160,
316 S.W.3d 261. However, courts are not to enforce parental rights to the detriment or
destruction of the health and well-being of a child. Id. An order terminating parental rights
must be based on the court’s finding by clear and convincing evidence that termination is in
the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile
will be adopted if the termination petition is granted and (2) the potential harm, specifically
Cite as 2014 Ark. App. 278
addressing the effect on the health and safety of the child, caused by returning the child to the
custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) and (ii) (Supp. 2013). The trial
court must also find by clear and convincing evidence that one or more statutory grounds for
termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B). Here, the statutory ground found
by the trial court was that the children had continued out of appellant’s custody for twelve
months and, despite a meaningful effort by the department to rehabilitate the parent and
correct the conditions that caused removal, those conditions had not been remedied by
appellant. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a).
On appeal, the issue is 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. A finding is clearly erroneous when the appellate court is, on
the entire evidence, 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.
A protective-services case was initially opened on C.K.1 and C.K.2 because appellant
allowed them to have contact with a registered sex offender living next door and because of
a pending investigation regarding allegations of physical abuse of a child by appellant. All
three children were removed when infant B.R. was, at one week of age, diagnosed with
failure to thrive due to neglect. The infant had lost 2.43 pounds in the week since his birth
and was near death.
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Cite as 2014 Ark. App. 278
Appellant first argues that the Arkansas Department of Human Services (ADHS) failed
to provide her with meaningful reunification services. We cannot address this argument
because it was not raised below. McHenry v. Arkansas Department of Human Services, 2013 Ark.
App. 711. To the contrary, at the termination hearing appellant’s trial counsel not only failed
to object to the adequacy of the reunification services provided but also elicited from appellant
the statement that “[t]here aren’t any other services that I feel like ADHS could have offered
me that would have helped me.” We cannot address this issue for the first time on appeal.
Appellant also argues that the evidence was insufficient to show that any potential harm
could result from returning the children to her. We disagree. Removal of the children was
due to neglect resulting in severe malnourishment to B.R. and, with respect to C.K.1 and
C.K.2, failure to supervise so as to protect the children from potential danger. Appellant was
provided with intensive and specialized training regarding the proper method for feeding B.R.
The program provider for specialized family services testified that they provided appellant
with a psychological evaluation, counseling, and one-on-one training for six months but that
appellant failed to make any progress during these sessions. Although taught very specific
skills, appellant demonstrated an inability to retain and implement her training during
visitations with the children. The provider testified that appellant simply continued to make
the same mistakes over and over despite the training. As an example, she related that
appellant had been repeatedly shown how to hold the baby and the bottle during feeding so
that the baby would get formula rather than air but that appellant was observed on several
occasions during visitation to be unable to recognize that the baby was sucking in air and
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Cite as 2014 Ark. App. 278
getting no formula for extended periods. Furthermore, when B.R. began eating whole foods,
appellant would not break the food into appropriately sized pieces, but would instead give
B.R. a whole cracker or a whole piece of cheese and simply tell him not to eat the whole
thing. Because malnourishment was the reason for B.R.’s being taken into custody,
appellant’s inability to learn how to properly feed the baby was a matter of great concern, as
was appellant’s inability to recognize the choking hazard involved in giving large pieces of
food to a one-year-old child.
There was additional testimony regarding appellant’s inability to recognize hazards.
During one visitation, B.R. was observed to fall twice and hit his head. Appellant did not
attempt to catch the child before he fell, although his older brother did so, and appellant
remained on the couch, making no attempt to soothe the child or check him for injury.
When confronted about this behavior by the caseworker, who entered the room because the
child was crying, appellant failed to recognize the significance of the incident. Furthermore,
although appellant had been given instruction on safety concerns involved in having someone
watch the children while she was away, appellant was unable to recite or retrieve what she
had been taught in several sessions regarding safety concerns in selecting caretakers. The
therapist stated that appellant showed no progress or improvement during the entire course
of treatment and that appellant remained unable to properly feed B.R. or to recognize
dangerous situations. Appellant’s caseworker testified that appellant had failed to remedy her
inability to properly feed B.R. and remained unable to recognize dangerous situations, and
she saw no possibility that appellant could rectify these issues in the foreseeable future.
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Cite as 2014 Ark. App. 278
Finally, the caseworker testified that the children were adoptable and that the older children
had “blossomed” and gained self-esteem since being placed in foster care.
Although appellant received numerous services and completed the case plan, it appears
from the record that she still had no stable transportation, housing, or employment and that,
despite meaningful efforts to provide her with services, she did not achieve the ability to safely
care for her children. Under these circumstances, we cannot say that the trial court erred in
terminating appellant’s parental rights. Wright v. Arkansas Department of Human Services, 83
Ark. App. 1, 115 S.W.3d 332 (2003).
Affirmed.
HARRISON and GRUBER, JJ., agree.
Didi H. Sallings, Arkansas Public Defender Commission, for appellant.
Tabitha Baertels McNulty, DHS Office of Policy and Legal Services; and Chrestman
Group, PLLC, by: Keith Chrestman, for appellees.
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