The opinion
GLADWIN, J., dissenting.
The evidence in this case is insufficient to support the trial court’s order terminating appellants’ parental rights; therefore, I dissent.
Appellants’ two-month-old child S.D. was taken into custody after Mr. Dowdy placed a call to the Child Abuse Hotline. Appellants ran out of formula and did not have money to purchase more. The affidavit stated that S.D. appeared to be healthy, was clean and appropriately dressed. The case worker stated that neither parent appeared to understand how to care for the baby. The affidavit stated that Dr. Matthews attributed S.D.’s white stool to being fed coffee creamer, but that she would have a normal stool within fifteen hours. The only thing Dr. Matthews said needed to be watched was a heart murmur. The affidavit alleged inadequate food, rather than inappropriate food, despite a complete lack of evidence that the child was ill or underweight. Based on this affidavit the trial court entered an order of emergency custody.
ImOn March 29, 2007, the trial court entered an adjudication order finding that the Department exercised a 72-hour hold removing the child from immediate danger of severe maltreatment. The trial court specifically found the juvenile dependent-neglected due to nutritional neglect. The case goal was reunification with a concurrent plan of relative placement or adoption. Neither of the first two orders were appealed.
The Dowdys were provided with a number of services. The review order filed July 25, 2007, found that appellants had complied with the case plan, including completing psychological evaluations and following recommendations, completing parenting classes, working independently with other service providers, participating in visitation, and maintaining appropriate housing. Walter had continued working with the Center for Fathers and Families, and Mrs. Dowdy continued working with PACES. The trial court made no finding that appellants had failed in their obligation in any way. Despite appellants’ compliance with the trial court’s orders, a permanency planning order was filed on January 18, 2008, changing the goal to termination of parental rights.
The trial court reviewed the psychological evaluations for each of the appellants. The evaluations stated that Mrs. Dowdy was in the mild-intellectual-deficient range. Under impressions, the report states that Mrs. Dowdy “presents as free from psychopathological indicators, which would interfere with the care of her child.” Despite evidence of social/cultural deprivation, along with a mental-retardation level of functioning on the full intellectual assessment, which indicates difficulties with safe parenting, the examiner felt |17that “with favorable supports in place Ms. [Dowdy] may be able to care effectively for her child.”
Mr. Dowdy also was found to be in the mild-intellectual-deficient range. Further findings indicated he “may be construed as having significant difficulty in understanding basic needs of newborn infants.” It further found “of significance is the fact that he may have difficulty ‘understanding1 spoken language and processing verbally mediated information.” The recommendation was parenting skills with an emphasis on basics of child care.
At the termination hearing, the trial court reviewed a letter from Dr. Matthew Crain, Executive Director of the Center for Fathers and Families. He stated that he found the Dowdys to be very caring, loving parents who were devastated by their separation from their infant daughter. He stated that, like many new parents today, they are not prepared with all the skills they need but are eager to learn. Further Dr. Crain explained that appellants surrounded themselves with support from extended family, CASA, PACES, their church family, and Centers for Fathers and Families. He pointed out that they have endeavored to do whatever was asked of them and appeared to make great strides. Dr. Crain makes the perplexing observation that Mr. Dowdy appears to be an excellent student; however in the same discussion, states that he has been required to repeat classes on the same subject. He further stated that, in light of significant mental capacity challenges he observed, his recommendation has changed to termination.
| isQubelah Harden, case worker for PACES wrote in her report dated April 9, 2008, that she visited with appellants periodically. She further wrote that she outlined the basic services provided by PACES and discussed family finances with appellants. She wrote, “as for permanent placement of the child, I do not feel that right now she should be returned to the permanent custody of her parents. This is based solely on the financial status of the parents and how it affects their ability to care for her.” (Emphasis added.) She added “please note that the parents truly love and adore their child and would move heaven and earth to care for her. Who is to truly say yes or no on whether they can or cannot care for their child adequately?”
Sylvia Richards, a court appointed special advocate (CASA) volunteer, testified at the termination hearing. She testified that she observed the following things that contributed to her recommendation that appellants’ parental rights be terminated: a) S.D. was fed coffee creamer mixed with water; b) Renee changed S.D.’s diaper on her lap; c) Walter held S.D. too much; d) Walter allowed S.D. to crawl toward a television set that sat on a low and unstable stand; e) Renee suffered from sleep apnea; f) Walter accidentally took an overdose of his prescription medication; and g) Walter was the dominant person in the marriage. She testified, “Walter is a good person. It’s just his thinking is impeded.”
Brandi Lace, Craighead County Department of Human Services supervisor, testified that the department was recommending termination because S.D. is very young. She stated that Mr. Dowdy had issues with the department that he deemed major “that most people |13involved in the case don’t see as major issues.” Those issues included complaints about S.D.’s clothes, her smelling of smoke, and a concern as to whether S.D. was properly belted while riding in a car. Ms. Lace did not believe the Dowdys possessed the mental capacity to care for the child and that the child could be at risk due to appellants’ mental deficiencies. She repeated the concern over Mr. Dowdy’s dominate personality and appellants’ resistance to move into an assisted-care-residential situation. She further found fault with appellants’ inability to come up with an alternate plan to assisted living.
The majority opinion adequately sets out the Dowdys’ testimony.
The trial court’s order of termination found that S.D. had been out of the home for more than twelve months and that the parents lack the capacity to care for the child due to their mental deficiencies. The trial court noted that Mr. Dowdy had previously overdosed on his own medication due to a lack of understanding in how to take his medication, and this caused concern as to how he would give medication to the child.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Causer v. Arkansas Dep’t of Human Servs., 93 Ark.App. 483 , 220 S.W.3d 270 (2005). It is not a challenge to find a case stating that “a parent’s interests in the nurture, upbringing, companionship, care and custody of children is generally protected by the Due Process Clause of the Fourteenth Amendment.” Troxel v. Granville, 530 U.S. 57, 77 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000) (Souter, J., concurring) (citing Washington v. Glucksberg, 521 U.S. 702 , 117 S.Ct. 2258 , 138 L.Ed.2d 772 (1997); Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584 , 99 S.Ct. 2493 , 61 L.Ed.2d 101 (1979); Quilloin v. Walcott, 434 U.S. 246 , 98 S.Ct. 549 , 54 L.Ed.2d 511 (1978); Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972); Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923)).
However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of a child. Causer, supra. A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. Id. This court recently stated in Strickland v. Arkansas Department of Human Services, 103 Ark.App. 193 , 287 S.W.3d 633 (2008), that this standard of proof reduces the possibility that a parent’s rights are terminated based solely on a few isolated instances of unusual conduct or idiosyncratic behavior and impresses the fact-finder with the importance of the decision, thereby perhaps reducing the chances that inappropriate terminations will be ordered.
The trial court clearly erred in finding that S.D. was dependent neglected and in terminating appellants’ parental rights. Initially, the trial court erred in finding that S.D. suffered from nutritional neglect. There is no evidence in the record that S.D. was ill, underweight, or in anyway neglected. The sole evidence relating to nutrition of the child was the color of her stool, and the affidavit stated that this would resolve in fifteen hours. At most, feeding S.D. coffee creamer was inappropriate but not neglectful. I submit that the 121 appellants’ feeding of S.D. was no worse than parents who allow an overweight child to eat fast food. 2 There is simply no evidence that this child was harmed in any manner whatsoever.
The trial court focused on appellants’ mental deficiencies in finding a lack of capacity to care for the child. However, the evidence shows that appellants knew they needed to care for S.D. The great irony in this finding is that had Mr. Dowdy not been concerned about S.D.’s feeding and had never called the hotline, this case would likely not be before us. Furthermore, Brandi Lace testified that Mr. Dowdy’s concern for S.D. was more than what she considered normal. It cannot be said that appellants do not have the capacity to understand S.D.’s needs on one hand, yet are overly protective on the other.
The trial court found that Mr. Dowdy’s one-time-accidental overdose was caused by a lack of understanding of taking his medications; however, there is no testimony as to the circumstances surrounding this episode. The trial court’s concern that this might result in harm to S.D. is logically flawed. The syllogism that Walter had an accident, therefore S.D. will have an accident does not follow. If it does follow logically, then all parents who have accidents may cause their children harm, thus their parental rights would be at risk.
The majority cites Meriweather v. Arkansas Department of Human Services, 98 Ark.App. 328 , 255 S.W.3d 505 (2007), and J.T. v. Arkansas Department of Human Services, 329 Ark. 243 , 947 S.W.2d 761 (1997), to support the position that a parent’s mental deficiency is among the statutory grounds for termination. These cases are easily distinguished from the present case. In Meriweather, supra, the child suffered broken bones, and the mother did not even acknowledge the injury. Further, the appellant showed her lack of interest by sleeping during visitation and failing to completely comply with the case plan. In J.T., supra, the child was also physically abused, and the parent suffered from mental illness. In the present case, the Dowdys were fully involved with S.D. and complied with the case plan.
The witnesses focused on appellants’ refusing to consider assisted living. It is apparent that although low functioning, the Dowdys worked hard to maintain their independence. There is simply no basis other than speculation that would require them to enter assisted living.
Today the law is clear that in Arkansas some people are just not smart enough to be parents. As there was no actual harm to S.D., the majority focuses on potential harm. I suggest one other scenario of potential harm. In her early teens, S.D. asks her adoptive parents:
S.D. Did my parents hurt or neglect me?
Parent: No, you were healthy, clean, and appropriately dressed when you were taken.
S.D. Did they not love me?
PARENT: No, they loved you very much, they would have moved heaven and earth for you.
S.D. Did they not understand that they needed to take care of me?
Parent: Yes, that is why your father called the hotline in the first place.
S.D. Then why did the State of Arkansas take me away?
Iasi will not speculate about the potential harm to S.D. for the answer to the last question.
I dissent.
BAKER, J., joins.
. See Center for Science and Public Interest, Fast Food Study, Aug. 4, 2008.