Ullom v. Arkansas Department of Human Services , 67 Ark. App. 77 ( 1999 )

John Mauzy Pittman, Judge.

The appellants in this termination-of-parental-rights case were the parents of a daughter born on August 1, 1996. On August 20, 1996, the child, who was then only twenty days old, was treated for a spiral fracture of her left humerus. The fracture was of unexplained origin, and hospital personnel reported the incident to the Arkansas Department of Human Services (ADHS). ADHS took emergency custody of the child and, following an investigation and probable cause hearing, she was adjudicated as dependent-neglected on September 17, 1996. Following that adjudication, the child remained in foster care and a case plan was developed that required the appellants to participate in counseling, attend parenting class, and continue supervised visitation with the child. Subsequently, a review hearing was held, and appellants’ visitation was modified to permit unsupervised visitation in the home. However, during the first, brief, unsupervised visit on February 8, 1997, the child was again injured and suffered extensive facial bruising. Unsupervised visitation was suspended, and ADHS filed a petition to terminate appellants’ parental rights. Shortly thereafter, supervised visitation was resumed, and a hearing on the termination petition was held on May 16, 1997, and January 2, 1998. On January 23, 1998, the trial judge entered an order terminating appellants’ parental rights. From that decision, comes this appeal.

For reversal, appellants contend that the findings supporting the trial court’s order terminating parental rights were not based on clear and convincing evidence. We find no error, and we affirm.

At the hearing, ADHS argued, inter alia, that the termination of parental rights was appropriate under Ark. Code Ann. § 9-27-341 (Supp. 1995), which in pertinent part provides that:

(b) [A]n order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

(1) That it is in the best interest of the juvenile, including consideration of the following factors:

(A) The likelihood that the juvenile will be adopted if the termination petition is granted, and

(B) The potential harm caused by continuing contact with the parent, parents, or putative parent;

(2) Of one (1) or more of the following grounds:

(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and, despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. It is not necessary that the twelve-month period referenced in this subdivision (b)(2)(A) immediately precede the filing of the petition for termination of parental rights, or that it be for twelve (12) consecutive months;

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(E)(i) That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate the parent’s circumstances, which prevent return of the juvenile to the family home.

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(F) The juvenile court has found the juvenile victim dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, and which was perpetrated by the juvenile’s parent or parents. Such findings by the juvenile court shall constitute grounds for immediate termination of the parental rights of one (1) or both of the parents.

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), supra, 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, 637, 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.

In the present case, appellant Bobby Ullom testified at the probable cause hearing that he, his wife, and the child were at his parents’ house the day before he took the child to the hospital. He stated that the child was constantly being handed around at his parents’ house, and that his eighteen-month-old nephew and nine-month-old niece were “kissing on her and pulling on her,” but that there was always an adult holding and supervising the child. He further stated that no one at his parents’ house that day could recall the child being injured, and that appellants first noticed that something was amiss when she “got fussy” on the way home from his parents’ house. According to his testimony, appellants initially believed that the child was suffering from gas, but that she cried all night. He stated that, when he picked the child up the next day, her arm fell, he heard a popping sound, and the child began to scream. Appellants then took the child to a hospital emergency room where the doctor informed them that the child had sustained a spiral fracture and explained that such an injury results when an arm is twisted. Mr. Ullom testified that appellants remained in the hospital all day, spoke with a detective who was investigating the incident, and were told that they would not be allowed to take the child home. Finally, he testified that he did not injure the child and did not know how the injury occurred.

Appellant Angie Ullom’s testimony at the adjudication hearing mirrored Mr. Ullom’s testimony at the earlier hearing. In addition, she stated that the child could not crawl or grasp objects at the time she sustained the spiral fracture, that the appellants were the only people who had contact with the child on the day the injury was reported, that she had not intentionally injured the child, that she would not allow anyone to injure the child, and that she did not know how the injury occurred.

Appellant Bobby Ullom also testified at the adjudication hearing, essentially repeating his testimony at the probable cause hearing. He added that he had been physically abused by his stepmother when he was a small boy and that he had trouble controlling his anger when he was a child, but stated that he had matured a lot since then. Finally, he stated that his past experiences caused him to resolve that he would never treat his children the way he had been treated.

The termination hearing was conducted on May 16, 1997, and on January 2, 1998. Dr. Barry Allen testified that the child had been in his office on at least eleven occasions. When he first examined her in August 1996, he determined that she had sustained a spiral fracture of the left humerus. He testified that the child did not have any bone disease that would make her more susceptible to such injuries, that she could not have caused the injury herself, and that it was very unlikely that the injury could have been caused by an eighteen-month-old child or by someone picking up the child. He further testified that the primary cause of spiral fractures to children under the age of three was abuse, that no other explanation had been proposed that would explain the injury, and that he believed that it was very likely that the spiral fracture was the result of child abuse.

Dr. O.L. Henderson testified that he saw the child in the emergency room in August 1996. He explained that a spiral fracture usually occurs because a torsional force has been applied to the bone, and that most spiral fractures in children under the age of three occur because someone has twisted the child’s arm. He testified that these injuries are generally not accidental and that, in children of this age group, the injury would have to have been caused by someone else. Although he could not categorically rule out the possibility that the spiral fracture had been caused by an eighteen-month-old toddler, he stated that it was very unusual for an eighteen-month-old to break the bone of another child, that picking up a newborn by the arm would not cause this type of injury, and that breaking a long bone in this manner would require quite a bit of force and violence. He also testified that a child injured in this manner would begin crying uncontrollably and could not be consoled. Finally, he testified that, although the child’s injury could have resulted in nerve damage, blood vessel damage, and loss of the limb, the possibility of loss of life was very remote.

Dr. Charles Akin testified that he saw the child on February 8, 1997, when she was brought in for evaluation of bruising around the face. He testified that the child had fresh, blue bruises about the left brow, left eye, the left side of the nose, and the cheek, and that she had the same bruises on the right side of her face to a lesser degree. He further testified that he examined the toy that allegedly had fallen on the child’s face and stated that, dropped from a height of six inches, the toy could not have caused bruises of the type sustained by the child. He stated that, dropped from a height of six inches, the toy would have caused a more isolated mark, if any, and that, even had the toy been rammed into the child’s face, it would have caused a less diffuse and more isolated pattern of bruising.

Christy Evans, the child’s foster mother, testified that when she picked up the child following the unsupervised visitation on February 8, Mr. Ullom was waiting with a toy in his hand. She testified that Mr. Ullom told her that he had been sitting on the floor next to the child when she reached up and pulled the toy out of his hand, and that the toy hit her in the face. She testified that she examined the child and noticed bruising across one whole side of her face, small bruises on the other side, and darkening on the back of her head that looked like a bruise.

Angie Ullom also testified at the termination hearing. Much of her testimony regarding the spiral fracture injury was in reiteration of her testimony regarding that incident at the previous hearing. Significant additions to her testimony regarding that incident included her statement that, on August 21, 1996,¹ the child had been crying intermittently but was sleeping when Mr. Ullom came home in the evening. She stated that, as she went into the kitchen to get a bottle for the child, she saw Mr. Ullom pick up the child out of her chair. She testified that he blocked her vision of the child as he bent down, and that the child screamed. Regarding the bruising incident, Mrs. Ullom stated that Mr. Ullom was holding a toy over the playpen, that the child reached up for the toy, and that the toy hit the child’s face. She testified that she made six telephone calls on February 8 regarding the injury, but that she did not telephone ADHS because she was afraid they would take the child away from her. She also stated that she would do anything to get the child back, and that she and Mr. Ullom had done everything that ADHS had asked them to do. She further stated that they had attended counseling sessions, parenting classes, and visitation with the child, and that they continued to attend counseling and visitation even after being informed that ADHS intended to move to terminate their parental rights.

The termination hearing was concluded on January 2, 1998. Heather Bailey testified that she began working on the Ullom case in September 1996, and continued as caseworker through July of 1997. She stated that, following the investigation of the toy incident and the determination that it was another act of abuse, the goal of the case plan changed on March 24 from reunification to termination of parental rights and adoption. She testified that the revised case plan was shown to the Ulloms, but that they did not sign it. She further testified that the agency continued to work toward reunification and to provide services to appellants even after March 24: visitation continued, the parents were required to maintain employment, and Mr. Ullom was required to attend anger-control counseling. She stated that appellants continued to be cooperative even though they knew that the ADHS goal was now termination of parental rights.

Melissa Bratton testified that she took over the Ullom case on July 9, 1997. She stated that she considered reunification to be the goal even though appellants had been told that ADHS would pursue termination in the absence of a valid explanation for the child’s injuries. She stated that a case plan was drawn up on October 15 that had reunification as its goal. She further stated that reunification would be an attainable goal if a plausible explanation for the child’s injuries were offered, even if that explanation consisted of an admission that one of the parents intentionally harmed the child.

Bobby Ullom also testified. The chief distinction between Mr. Ullom’s prior testimony was that, on this occasion, he stated he no longer believed that the child’s arm had been broken by his nephew.² Instead, he testified, he now believed that the child’s arm was broken when it became entangled in a safety strap as he attempted to remove her from her chair. He conceded that this differed from his earlier testimony, and that he had not mentioned entanglement in the safety strap to physicians or investigators following the incident. He also testified that he had had a problem with violent outbursts while in elementary school, and that he had been suspended for fighting during the tenth grade. He could not recall whether or not he was expelled from high school, but he stated that he believed that the counseling he participated in had corrected his previous problem with controlling his anger.

For reversal, appellants contend that the findings supporting the order of termination were not based on clear and convincing evidence. They first argue that the evidence was insufficient to support a termination order based on Ark. Code Ann. § 9-27-341 (b)(2)(A) (Supp. 1995) because the evidence failed to show that the child had continued out of the home for one year, or that ADHS had made a meaningful effort to rehabilitate the home and correct the conditions that caused removal. We do not agree. The child was adjudicated dependent-neglected on September 17, 1996. The termination hearing began on May 16, 1997, and concluded on January 2, 1998, and the termination order was not entered until January 23, 1998. Consequently, at the time the hearing was concluded, the child had in fact “continued out of the home for one year” as required by the statute, and any error that may arguably have resulted from the filing of the termination petition before the statutory period had elapsed was thereby cured. See Donna S. v. Arkansas Department of Human Services, 61 Ark. App. 235, 966 S.W.2d 919 (1998).

Nor can we say that the evidence was insufficient to support a finding that ADHS made a meaningful effort to rehabilitate the home and correct the conditions that caused removal. The evidence, particularly the medical evidence that the child’s injuries simply could not have occurred in the manner appellants say they did, clearly supports a finding that one or both of the parents intentionally abused the child, and that both of the parents intentionally concealed the abuse by giving false histories of the origins of the injuries. The evidence also shows that, to remedy the situation, ADHS provided parenting classes, counseling sessions, and anger counseling for Mr. Ullom, and continued to provide services aimed at reunification up to the final day of the hearing. Although it is readily apparent that such services will be of little use if the parents conceal the source of the abuse by providing false histories of the origins of the child’s injuries, that is a circumstance wholly within the control of appellants and it does not render the attempts to remedy the situation unmeaningful. It is, under Ark. Code Ann. § 9-27-341 (b)(2)(A) (Supp. 1995), ultimately the parents’ duty to remedy the conditions causing removal and, under the circumstances of this case, we think that the trial judge could properly find that they failed to do so despite a meaningful effort by ADHS to rehabilitate the home.

Nor do we agree with appellants’ argument that there was no evidence that appellants manifested any incapacity or indifference to remedy the subsequent issues or factors that demonstrate that return of the child to the family home would be contrary to the child’s health, safety, or welfare, and that removal therefore was improper under Ark. Code Ann. § 9-27-341(b) (2) (E)(i) (Supp. 1995). Appellants argue that they have complied with all the requirements imposed on them by ADHS and have accepted responsibility for the child’s injuries. This argument, however, ignores the evidence supporting the trial judge’s express finding that the injuries were perpetrated by appellants. Appellants have stated that they accept responsibility, but they accept responsibility only for accidental injuries of problematical origin when the great weight of the evidence indicates that those injuries were intentionally inflicted at a time when only appellants were present with the child. Appellants have indeed complied with the case plan but, even after they began attending parenting classes and counseling sessions, the evidence shows that the child was injured on the very first occasion that appellants were allowed unsupervised visitation, and a medically impossible explanation was again given for the child’s injuries. The evidence of the extreme youth of the child when the abuse was begun, and the evidence that the abusive behavior was resumed at the first opportunity even after the child was removed from the home, demonstrates that return of the child to the family home would be contrary to the child’s health, safety, and welfare. Furthermore, appellants’ continued denial of personal responsibility and efforts to conceal the source of the abuse demonstrate that they have manifested the incapacity or indifference to remedy the subsequent issues. See Corley v. Arkansas Department of Human Services, 46 Ark. App. 265, 878 S.W.2d 430 (1994). We hold that the evidence in this case was sufficient to support termination of appellants’ parental rights, and we affirm.

Affirmed.

Meads, J., agrees. Rogers, J., concurs. Bird, Stroud, and Roaf, JJ., dissent.

1 While Ms. Ullom testified that these events occurred on August 21, other evidence indicates that they occurred on August 20. The exact date is not significant to our decision.

2 Mr. Ullom testified as follows:

This is my third time to testify in [this] matter. At the time I told the Court that [the child] had been fussy the night before she went to the hospital, I think that at the time she was not in pain. The next mormng I went to work, at the time Angie was in the recliner and [the child] was sitting on her chest. When I came home for lunch Angie said that [the child] was better, but she was still pretty fussy. I went back to work after lunch, I came home about 4:00. When I came home [the child] was in the bouncy seat and Angie went to fix her a botde. I reached down to pick [the child] up out of the seat, and I believe that was when her arm may have gotten caught under the strap. I didn’t tell the Court that I thought her arm had been caught under the strap in the previous hearings.