Page:Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131 (2004).pdf/6

Rh to Ark. Code. Ann. § 9-27-341 (Supp. 2003). Our law is well settled that when the burden of proving a disputed fact is by clear and convincing evidence, the inquiry on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Baker v. Arkansas Dep't of Human Services, 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is defined as "that degree of proof which will produce in the factfinder a firm conviction as to the allegation sought to be established. In making such a determination, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses." Id.

[1] In this case, the trial judge was presented with clear and convincing evidence of meaningful efforts by DHS. Over the course of the fifteen-month investigation, DHS offered numerous services, therapy options, and classes to Mr. Flores. Mr. Flores had counseling options by Dr. Church, parenting classes, anger management classes, drug and alcohol assessments, and a housing referral offer by DHS. While Mr. Flores did complete the parenting classes and attended some of the counseling sessions, he was a very reluctant participant throughout the entire ordeal. While his first scheduled counseling session was in February, he waited until May to attend a session, and that was only after Dr. Church refused to schedule another appointment until he came in. He was "not enthusiastic about being there but he was not completely unwilling to be there," and he repeatedly complained that it was "too inconvenient for him to be there because of his job situation, work hours, and transportation." Though he could have continued therapy after his wife was incarcerated, he stopped going to counseling sessions entirely after two more visits. During one session with Mr. Flores, Dr. Church suggested Mr. Flores needed to secure suitable housing to get the children back, which he still had not done at the time of the termination hearing. Dr. Church further testified that Mr. Flores's alcohol consumption was "a huge issue and something [the children] were very concerned about." Despite this concern, Dr. Church was unable to make much progress in this area because Mr. and Mrs. Flores minimized his problems with alcohol or anger management.

Mr. Flores argues the evidence that he did not meaningfully participate in the therapy is "beside the point." However, as he maintains that DHS did not provide him with services and that DHS should have considered him individually for placement of the