Summary
noting that this court will not consider arguments raised for the first time on appeal
Summary of this case from Fox v. Ark. Dep't of Human Servs.Opinion
No. CA12-733
01-16-2013
HEATHER CUSHMAN APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and M.E., Minor Child APPELLEES
Leah Lanford , Arkansas Public Defender Commission, for appellant. Tabitha Baertels McNulty , Office of Chief Counsel, for appellee
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT,
[NO. JV2010-102]
HONORABLE LARRY W.
CHANDLER, JUDGE
AFFIRMED
ROBERT J. GLADWIN , Chief Judge
Appellant Heather Cushman argues that the circuit court committed reversible error by failing to make statutorily required findings in its order terminating her parental rights. The Arkansas Department of Human Services (DHS) and attorney ad litem claim that appellant failed to preserve her argument. We affirm.
On September 14, 2009, DHS exercised a seventy-two-hour hold on appellant's ten-year-old daughter, M.E., due to the child's allegations of physical abuse by her stepfather, David Cushman. The Columbia County Circuit Court granted an order for emergency custody and later adjudicated M.E. dependent-neglected, finding that the child had been subjected to abuse by her stepfather and that her mother had failed to protect her from that abuse. One year later, after a transition to unsupervised visits and ultimately a trial placement, which failed due to M.E.'s stress, DHS filed for termination of parental rights.
A hearing was held on April 24, 2012, and the evidence included testimony from the child's counselor, the foster mother, and the DHS caseworker. Each of these witnesses testified that the child had said, at times, that she wanted to return to her mother, but that manifestations of her stress, including bed wetting, dark-circled eyes, and failing grades belied the child's stated desire. The child's counselor testified that appellant had not acknowledged the child's accusations of abuse in the specific way necessary for the child and that further family counseling would not improve the situation.
On April 27, 2012, the circuit court issued a letter ruling of its findings supporting its decision to terminate parental rights. In that letter, the circuit court discussed evidence supporting M.E.'s adoptability and grounds for termination. The circuit court found that DHS had offered appellant services intended to bring about reunification, but that the child had been out of the mother's custody for more than fifteen months and could not be returned to the mother's custody on the day of the final hearing. Moreover, the circuit court found that the issues causing removal of the child had not been remedied.
The circuit court instructed the DHS attorney to draft a formal precedent memorializing its findings. The termination order states in paragraph seven:
The Court finds by clear and convincing evidence that it is in the best interest of the juvenile to terminate parental rights. In making this finding, the Court specifically considered (A) the likelihood that the juvenile will be adopted if the termination petition is granted, and (B) the potential harm on the health and safety of juvenile caused by returning the juvenile to the custody of the mother as set out in its letter ruling dated April 27, 2012.Appellant filed a timely notice of appeal, and in her appeal that followed contends that the trial court wholly failed to consider whether M.E.'s health and safety would be at risk if returned home to her mother.
Arkansas Code Annotated section 9-27-341(b) (Supp. 2011) states in part as follows:
(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:Ark. Code Ann. § 9-27-341(b)(3)(A), (B)(i)(a)–(b).
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and(B) Of one (1) or more of the following grounds:
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent, parents, or putative parent or parents; and
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
(b) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(i)(a) of this section immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months[.]
Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wright v. Ark. Dep't of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. We review cases involving the termination of parental rights de novo. Anderson v. Ark. Dep't of Human Servs., 2011 Ark. App. 526, ___ S.W.3d ___. Pursuant to Arkansas Code Annotated section 9-27-341(b)(3), the facts warranting termination of parental rights must be proved by clear and convincing evidence. 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. Wright, supra. When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the circuit court's finding is clearly erroneous, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. Anderson, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Hopkins v. Ark. Dep't of Human Servs., 79 Ark. App. 1, 83 S.W.3d 418 (2002). We have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. Cobbs v. Ark. Dep't of Human Servs., 87 Ark. App. 188, 189 S.W.3d 487 (2004).
Appellant argues that the trial court wholly failed to make any findings in the termination order regarding the statutorily required element of potential harm. Appellant contends that the statute and our case law make it clear that the factor of "potential harm" must be considered, citing Thomsen v. Ark. Dep't of Human Servs., 2009 Ark. App. 687, 370 S.W.3d 842. We agree and note this court's explanation in Thomsen:
[S]ection 9-27-341(b)(3)(A) does not require DHS to prove potential harm by clear and convincing evidence; rather, the statute simply identifies potential harm as a factor the circuit court must consider in its best-interest analysis. The circuit court's obligation is to determine, after considering all factors, whether there is clear and convincing evidence that termination is in the child's best interest. The circuit court is not required to affirmatively identify a potential harm or to find that actual harm would result if the child were returned to the parent. The potential-harm analysis is to be conducted in broad terms.Thomsen, 2009 Ark. App. 687, at 7–8, 370 S.W.3d at 846–47 (citations omitted).
Appellant argues that the trial court's letter ruling provided evidentiary facts to support its finding of adoptability and the ground on which termination was based, but it never mentioned the element of potential harm and provided no evidence in its order to support its summary statement that it had considered the factor. She argues that the circuit court gave no consideration of how the child's return to appellant would cause potential risk to her health and safety.
Both DHS and the attorney ad litem contend that appellant failed to preserve her argument for appeal because she did not raise her objection below. We agree, as we have long held that we will not consider arguments raised for the first time on appeal. Gilmore v. Ark. Dep't of Human Servs., 2010 Ark. App. 614, 379 S.W.3d 501. Alternatively, we would affirm because the circuit court considered the potential harm the child would face if returned to appellant as evidenced by paragraph seven of the order and the letter ruling discussing the evidence presented at the final hearing.
Affirmed.
GLOVER and VAUGHT, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
Tabitha Baertels McNulty, Office of Chief Counsel, for appellee