McFarland v. Arkansas Department of Human Services

210 S.W.3d 143, 91 Ark. App. 323
CourtCourt of Appeals of Arkansas
DecidedJune 15, 2005
DocketCA 05-48
StatusPublished
Cited by59 cases

This text of 210 S.W.3d 143 (McFarland v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McFarland v. Arkansas Department of Human Services, 210 S.W.3d 143, 91 Ark. App. 323 (Ark. Ct. App. 2005).

Opinion

Karen R. Baker, Judge.

Appellant, Arthur McFarland, Sr., appeals from the termination of his parental rights by the Carroll County Circuit Court. On appeal, appellant asserts that the trial court erred in finding that the Department of Human Services (“the Department”) proved by clear and convincing evidence the likelihood that R.M. or his sibling would be adopted if the termination of parental rights was granted. We affirm.

On January 23, 2003, the Arkansas Child Abuse Hotline received a report that R.M., a five-month-old child born August 11, 2002, had non-accidental trauma consistent with shaken baby syndrome. The child suffered from bilateral subdural hematomas and bilateral retinal hemorrhages and required emergency surgery at Arkansas Children’s Hospital. A seventy-two-hour hold was placed on R.M. and his sibling A.M., born November 24, 1999. As a result of R.M.’s injuries, appellant father was arrested on charges of first-degree battery. The children were placed in DHS custody. At the time of the adjudication hearing, appellant father was in jail, and there was some concern about the mother’s ability to protect the children from appellant. 1 There was also testimony that both parents admitted that they used marijuana regularly and used methamphetamine as well. The court ordered that the mother submit to random drug testing and ordered that appellant not be allowed visitation as long as he remained incarcerated. The ■Department was ordered to provide a status report of R.M.’s condition to appellant while he was in jail and to pay for a psychological and psychiatric evaluation of appellant. With the ultimate goal of the case being reunification with the mother, the court determined that the two children were dependent-neglected and that the children should remain in the Department’s custody.

At a review hearing held on July 3, 2003, the trial court amended its previous order and required the Department to provide appellant with counseling services and transportation to any counseling appointments. At the next review hearing held on October 9, 2003, Martin Faitak, a clinical psychologist, testified that he performed psychological evaluations on both Ms. McLemore and appellant. He performed a MMPI, a test designed to evaluate symptoms of psycho-pathology or personality aberrations. Faitak diagnosed appellant with a general personality disorder. However, because personality disorders are more difficult to diagnose, Faitak needed to conduct further testing and evaluation in order to provide a more specific diagnosis. Faitak recommended individual and group therapy for appellant. Ultimately, he concluded that “it would be a real high risk to place [the] kids back with either Janet McLemore or [appellant] without their having substantial treatment. By substantial, I mean years, and consistent, intense with the same therapist, ongoing, weekly and with follow-up.”

A petition to terminate parental rights was filed on November 13, 2003. At the termination hearing on June 17, 2004, Dr. Barry Allen, a pediatrician in Rogers, Arkansas, testified that both A.M. and R.M. had previously been in his care. A.M. had a relatively good medical history. However, R.M. suffered from seizures, cerebral palsy, and reflux. Because of the reflux problem, R.M. also had a history of asthma, wheezing, and upper respiratory infection. R.M. was fed through a gastrostomy tube placed in his stomach and had to be fed every three to four hours. As a result of the brain trauma from the Shaken Baby Syndrome, R.M. suffered from cortical blindness.

Yadira Cook, the family service caseworker, testified that at the time of the hearing, the children had been in the Department’s care for seventeen months. She testified that when the children were first brought into foster care, A.M. was very fearful of men, and he had trouble adjusting to his foster dad. A.M. had night terrors and qualified for therapy in various areas. However, after seven to ten months of therapy, A.M. had improved dramatically. Ms. Cook stated that, considering all the facts, she thought it would be in the best interest of the children that the parents’ rights be terminated.

Michelle Yarber testified that she was a family service worker supervisor with the Department and was familiar with the Department’s adoption program. She had worked on cases for the Department in the past that resulted in successful adoptions. She stated that because of the ages of the two children and the fact that they were a sibling group, it was likely that they would be adopted. In her opinion, even though R.M. had medical needs, there were adoptive parents that were qualified to meet those needs.

Ms. McLemore testified that she and appellant had been together for twelve years. She testified that appellant was a “controlling and abusive man.” He was abusive to her, and as a result, she was afraid of him. Nonetheless, she remained with him because she “was dependent on him.” Appellant was in charge of tending to the children during Ms. McLemore’s working hours. She testified that when she arrived home after work on the day of the incident, appellant said to her, “the damn baby won’t let me sleep.” A day or so later, she stated that R.M.’s “eyes started to roll,” and he was crying. She claimed that she did not know what was wrong with him, but she had to go to work, so she did not take him to the doctor. She later told a friend at work about R.M. The friend went to the home to check on the child, and the friend and appellant took the child to the doctor. The child was airlifted to a Rogers hospital and then airlifted to Arkansas Children’s Hospital. The child underwent emergency surgery and was diagnosed as having shaken baby syndrome.

At the conclusion of the testimony, the trial court terminated the rights of both parents. This appeal followed.

When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence. Id. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Baker v. Ark. Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Beeson v. Ark. Dep’t of Human Servs., 37 Ark. App. 12, 823 S.W.2d 912 (1992).

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Bluebook (online)
210 S.W.3d 143, 91 Ark. App. 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcfarland-v-arkansas-department-of-human-services-arkctapp-2005.