Cassidy v. Arkansas Department of Human Services

Karen R. Baker, Judge. The appellant, Lisa Cassidy, is the mother of two children, a daughter, L.C., and a son, C.C., who were born on August 2, 1989, and June 9, 1997, respectively. She is appealing from an order terminating her parental rights, arguing that the decision is clearly erroneous because Arkansas Department of Human Services (“ADHS”) failed to offer appropriate reunification services and because it is contrary to the best interests of the children. Appellant also contends that the chancellor erred in denying her mother’s motion to intervene. We affirm. On August 13, 1999, appellant was arrested for endangering the welfare of a minor based on an incident where C.C., then age two, was found naked and barefooted in a neighbor’s yard playing with the neighbor’s dogs, including a Rottweiler. The temperature outside that day was reportedly 105 degrees. Upon inspection of the home where appellant and the children lived with appellant’s mother, Anita Cassidy, social services observed, among other things, mildewed dishes, trash, mice feces throughout the kitchen and pantry, five mice, a mousetrap sitting on a piece of furniture three feet high, and scissors on the floor. It was also known that C.C. had been found the week before playing at a Wal-Mart construction site several blocks away from the home. The children were taken into emergency custody, and after a hearing they were declared dependent-neglected because of inadequate supervision and environmental neglect. The initial goal and case plan was that of reunification, and services were provided that included homemaking services, in-home parenting and parenting classes, and referrals for individual and family counseling. Appellant underwent a psychological evaluation in September 1999, and three additional psychological examinations in March, June, and August of 2000. At the June examination, it was learned for the first time that appellant suffers from paranoid schizophrenia. In the meantime, the case was reviewed in January and April of 2000. Appellant was allowed overnight, weekend visitation until April, when only supervised visitation was allowed after L.C. alleged that appellant’s brother had molested her. At the permanency planning hearing held in June, the goal was changed from reunification to termination. After a hearing in October, the court granted ADHS’s petition to terminate appellant’s parental rights. The chancellor granted the petition pursuant to Ark. Code Ann. § 9-27-341 (b) (3) (B)(i) (a) (Supp. 1999), finding that the children had been adjudicated as dependent-neglected and had remained outside of the home for one year and that, despite a meaningful effort by the department to rehabilitate the home, appellant had failed to remedy the conditions that had caused the children to be removed. Appellant’s first point is that the chancellor erred in finding that ADHS had provided adequate reunification services. Appellant contends that, although further psychological examination was recommended after her initial evaluation in September of 1999, she was not provided such an examination until March 2000. She argues that ADHS overlooked the need for treatment and aggressive intervention and that ADHS was at fault for the delay in her receiving treatment. The burden on the party seeking to terminate the parental relationship is a heavy one under Arkansas law. Malone v. Arkansas Dep’t of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Arkansas Code Annotated section 9-27-341 (b) (3) (Supp. 1999) requires that an order terminating parental rights must be based on clear and convincing evidence. When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the inquiry on appeal is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Minton v. Arkansas Dep’t of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (2000). In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of the witnesses. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). The chancellor addressed this issue in some detail in her termination order. The chancellor noted that she had ordered appellant to undergo a psychological evaluation and three subsequent mental examinations and that the need for repeated examinations was attributable to appellant’s lack of candor and her failure to disclose her history of mental illness, which manifested when she was a teenager. The chancellor also intimated that appellant’s eventual disclosure about her mental illness only came after she had allowed ADHS access to her past medical records, which reportedly included a wealth of information about her long-standing illness. The chancellor noted the testimony of appellant’s therapist, Lisa Doan, who testified that it was not unusual for appellant, because of her mental illness, not to divulge information about her mental illness. However, the chancellor found that appellant’s credibility was lacking in many other areas as well. Specifically, the chancellor recalled that appellant had been untruthful when she had told the court that her brother had not been in the home during the weekend that L.C. alleged that her uncle had sexually abused her. The chancefior also noted that appellant’s mother, who served as her guardian, had also failed to inform anyone of appellant’s illness. There was also testimony that appellant undergoes a yearly mental exam to maintain and receive social security benefits. Further, we note that we are disadvantaged in our review because the testimony and evidence offered at the permanency-planning hearing, which was incorporated into the final hearing for the court’s consideration by agreement, has not been included in the record on appeal. From what we can gather from the termination order and brief references made in the testimony at the final hearing, the permanency planning hearing included the testimony of Ms. Doan, as well as testimony concerning appellant’s involvement with the Ohio Department of Human Services. It is the appellant’s burden to bring up a record demonstrating error. S.D. Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). From our review of the record presented, we cannot say that the chancellor’s finding is clearly erroneous. Appellant also contends that the chancellor erred in finding that termination was in the children’s best interest. We disagree. The chancellor found that appellant was not fit to care for her children. The chancellor noted that appellant was dependent on her mother to care for her and to provide housing and that her mother had been included in the case plan out of Ohio, apparently without success. The chancellor further noted that, although appellant had completed all of the required classes and had maintained visitation, she had steadfastly refused to recognize that her behavior in not supervising the children was a problem of any concern. In this regard, the case worker testified as to her belief that appellant had been merely going through the motions of completing the requirements of the case plan and that her efforts were not sincere. The chancellor was also disturbed by appellant’s failure to acknowledge the possibility that her brother had molested L.C. and that her refusal to entertain the notion represented an unwillingness to work on an appropriate solution. In a nutshell, the chancellor found that appellant was unable and unwilling to provide protection, security, and care for her children, as she had repeatedly demonstrated over a period of years. On this point as well, our review is hampered by the lack of a complete record. We cannot say that the chancellor’s finding that termination was in the children’s best interest is clearly erroneous. Appellant’s final argument is that the chancellor erred in denying her mother’s motion to intervene. We agree with ADHS that appellant lacks standing to complain about the denial of her mother’s motion. See Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986). Affirmed. Stroud, C.J., Robbins, Griffen, Neal, and Crabtree, JJ., agree. Jennings, Bird, and Vaught, JJ., dissent.