McPherson v. Ark. Dep't of Human Servs. , 2013 Ark. App. 525 ( 2013 )

Cite as 2013 Ark. App. 525ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-12-992
Opinion Delivered September 25, 2013
KAYLA McPHERSON
APPELLANT APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NO. JV-2011-68]
HONORABLE BARBARA ELMORE,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES
APPELLEE AFFIRMED
JOHN MAUZY PITTMAN, Judge
This is an appeal from termination of appellant’s parental rights to her three children.
Appellant argues that the trial court erred in failing to give her more time to complete the
case plan and in failing to enter the termination order within thirty days of the termination
hearing as required by Ark. Code Ann. § 9-27-341(e) (Supp. 2011). We find no prejudicial
error, and we affirm.
Although termination of parental rights is an extreme remedy and in derogation of the
natural rights of parents, parental rights will not be enforced to the detriment or destruction
of the health and well-being of the child. Sowell v. Arkansas Department of Human Services,
96 Ark. App. 325, 241 S.W.3d 767 (2006). Grounds for termination of parental rights must
be proved by clear and convincing evidence. Id. 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 proved by clear and convincing evidence is clearly
Cite as 2013 Ark. App. 525erroneous, giving due regard to the opportunity of the trial court to judge the credibility of
the witnesses. Id.Pursuant to Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2011), an order terminating
parental rights must be based on a finding that termination would be in the best interest of
the juvenile and a finding of at least one of several enumerated grounds, including a finding
that the child has been adjudicated dependent-neglected and, despite meaningful efforts by
ADHS to rehabilitate the home and rectify the conditions causing removal, the parent has
failed to remedy those conditions. Here, the children were taken into emergency custody
because they were in immediate danger of severe maltreatment, and they were adjudicated
dependent-neglected in April 2011 for inadequate supervision. The goal was originally
reunification, but by May 2013 termination of parental rights was sought because appellant
had not rectified the problems of homelessness, unemployment, methamphetamine abuse,
and failing to take her medications for bipolar disorder and schizophrenia.
It is undisputed that appellant failed to complete the case plan within one year. What
is disputed is whether the trial court erred in failing to allow appellant more time to complete
the case plan based on her testimony that she was making progress. It is well established that
evidence that a parent begins to make improvement as termination becomes more imminent
will not outweigh other evidence demonstrating a failure to comply and to remedy the
situation that caused the children to be removed in the first place. See, e.g., Camarillo-Cox
v. Arkansas Department of Human Services, 360 Ark. 340, 201 S.W.3d 391 (2005). Here,
however, there was evidence appellant was not even progressing as termination became more
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Cite as 2013 Ark. App. 525imminent. A DHS case worker testified that, although appellant improved for four months,
she subsequently relapsed and was, after sixteen months, as unstable as she had been when
the case originally began. Appellant testified to the contrary, stating that she had a signed
agreement to lease a trailer, but that she had forgotten to bring it with her to the hearing.
Appellant also testified that she had recently secured employment at “The Playground”
setting up play equipment for children’s parties and was earning $700 per month, but that
she was paid in cash and could not remember her employer’s last name. The trial court
expressly found that appellant’s testimony was not truthful.
The supreme court has repeatedly held that we will defer to the trial court’s superior
opportunity to determine credibility in cases such as this. See Trout v. Arkansas Department
of Human Services, 359 Ark. 283, 197 S.W.3d 486 (2004). Here, given the evidence that
appellant repeatedly missed scheduled visitation with her children throughout the case; that
her failure to take her medications led to inpatient admission to a psychiatric hospital in April
2012; that she later routinely missed appointments for and failed to complete the ordered
medication management for her mental-health issues; and that she failed even to complete
court-ordered parenting classes, we cannot say that the trial court erred in terminating her
parental rights.
With regard to the trial court’s failure to enter the order of termination within thirty
days of the hearing as required by Ark. Code Ann. § 9-27-341(e), appellant does not argue
that she has been prejudiced or is entitled to any specific remedy; instead she merely uses the
failure as an example to demonstrate that “these cases take time.” The question of whether
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Cite as 2013 Ark. App. 525the failure to enter the order in a timely fashion deprived the court of jurisdiction has already
been decided. In a similar situation, the supreme court held that a trial court’s failure to
comply with statute requiring that written order be filed within thirty days of the termination
hearing did not result in loss of trial court’s jurisdiction or require vacation of its eventual
written order for termination of parental rights entered four months after the hearing because
there was no express sanction in the statute for untimely filing or any evidence that such a
result was intended by legislature. Wade v. Arkansas Department of Human Services, 337 Ark.
353, 990 S.W.2d 509 (1999). Thus, we conclude that the trial court’s failure to enter the
termination order within thirty days of the hearing was not an error prejudicial to appellant.
Affirmed.
WALMSLEY and VAUGHT, JJ., agree.
Charles D. Hancock, for appellant.
Tabitha Baertels McNulty, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor children.
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