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Banks v. Arkansas Dep't of Human Services6/22/2005
t with the case worker, and a drug problem, demonstrated a "sincere effort to comply with the case plan." Relying on the oft-stated aphorism that the termination of parental rights is "derogation of a parent's natural rights," Teresa asserts that this partial compliance with the case plan should be sufficient for us to reverse the trial court. This argument is unpersuasive.
Partial compliance with a case plan has never been sufficient justification for reversing a termination case. See Chase v. Arkansas Dep't of Human Servs, ___ Ark. App. ___, ___ S.W.3d ___ (May 19, 2004). Here, there was evidence that Teresa had failed to remedy her most pressing problem, her drug use. Indeed, the order recites that she tested positive for methamphetamine the day of the termination hearing. Under these circumstances, we cannot say that the trial court's order was not supported by clear and convincing evidence.
Teresa next argues that the trial court erred in finding that DHS presented clear and convincing evidence that they made reasonable efforts to provide services to reunify the family. She asserts that this finding is erroneous because DHS's failed to refer her for a psychological evaluation, and it failed to present evidence that they assisted her in attempting to secure employment despite her limited education and the fact that she was pregnant during much of the time that reunification services were provided. Further, Teresa argues for the first time on appeal that her rights under the Americans with Disabilities Act were violated because the failure to make the psychological referral made it "unknown" whether she suffered from severe emotional problems or a diagnosable mental illness that "prohibited her from completing all of the elements of her case plan." We find this argument unavailing.
DHS asserts, and we agree, that Teresa's failure to appeal the findings that DHS had provided reasonable reunification services pursuant to three review hearings and a permanency planning hearing makes its appeal of this issue untimely. Moore v. Arkansas Dep't of Human Servs., 69 Ark. App. 1, 9 S.W.3d 531 (2000) (holding that the failure to challenge the reasonable efforts to provide reunification findings in review hearings deprived this court of jurisdiction to address the issue on appeal of the termination order). Regarding Teresa's allegations that the termination of her parental rights somehow violated the Americans with Disabilities Act, we are unable to address this argument because Teresa did not establish that she was entitled to ADA protection and therefore, any arguments related to requirements of the ADA are not preserved for appellate review. Ruble v. Arkansas Dep't of Human Servs., 75 Ark. App. 321, 57 S.W.3d 233 (2001).
For her final point, Teresa argues that the trial court erred in granting the petition to terminate her parental rights because the evidence presented by DHS at the hearing was not sufficient to support a finding by clear and convincing evidence that an appropriate permanency plan exists and that the children are likely to be adopted. She notes that DHS caseworker Tiffany May testified that D.B. was being counseled for emotional or behavioral problems and was taking medication for ADHD. Teresa asserts that the foster parents were not present to testify whether or not they wished to adopt D.B., and there was no evidence that DHS had spoken to the foster parents about ADHD and what it entails and how that diagnosis might affect their decision to adopt D.B. This argument is unavailing.
In pertinent part, Arkansas Code Annotated section 9-27-341 (Supp. 2003) provides: (b)(1)(A) The circuit court may consider a petition to terminate parental rights
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