dissenting. I dissent from the I /majority’s affirmance of the chancery court’s termination of Lisa Cassidy’s parental rights. Like all termination of parental rights cases, this one is difficult and the results are likely to be tragic whatever decision is reached. The majority sets forth the pertinent facts and holdings of the trial court in its opinion and it is not necessary to repeat those here. However, I am convinced that the chancellor clearly erred in finding that the Arkansas Department of Human Services (ADHS) provided adequate reunification services as required by Ark. Code Ann. § 9-27-341 (b) (3) (B)(vii) (a) (Supp. 2001), and that appellant failed to take advantage of those services. The court also erred in relying on appellant’s refusal to believe that her brother had sexually abused one of the children, when ADHS found the charge unsubstantiated.
This case, in its simplest form, is about whether a person suffering from mental illness has a right to demonstrate the ability to raise her children. Ms. Cassidy has shown a history of failure, lying, and denial when not on her medication. But, she has also shown that she can comply with almost all of the required directives when she is following the prescribed medication. Whether she would stay on the program indefinitely and be successful as a parent, no one knows, but the law requires that she be given a reasonable time to demonstrate her compliance, and I believe that she was denied that time in this case.
The termination of parental rights statute, section 9-27-341(b)(3)(B)(i), sets a benchmark of twelve months for a parent to respond to tbe programs offered by ADHS. However, this is in no way a limit requiring immediate termination at its completion. In the instant case, the precipitating act that set this case in motion occurred in August of 1999. The appellant was psychologically examined in September 1999 and March, June, and August 2000. However, it was not until the June 2000 examination that appellant was discovered to be suffering from paranoid schizophrenia. It was also established that she had a history of this mental illness for a long period of time. Nonetheless, on October 10, 2000, a termination hearing was held. Appellant had only been on her medication for a couple of months at that time (since August or September 2000), but the ADHS (and eventually the trial court) relied on the previous twelve-month period to examine appellant’s behavior.
If you examine appellant’s progress the months prior to August 2000, and the months after August, there is a marked difference in the level of her compliance with parenting requirements. The testimony of Carolyn Williams, a DHS caseworker, at the termination hearing in October 2000, is especially illuminating. Although she supported the contention that appellant had gone for twelve months without complying with directives, she stated (with regard to the status at the time of the hearing) that “[t]he environmental concerns have been remedied. The [appellant’s] home is now clean. ...” Later she testified that appellant had complied with attendance at parenting classes and had generally complied with the court’s orders. Ms. Williams testified that appellant’s mental illness was responding well to medication, but she did not believe that appellant was honest because she had not alerted the court or ADHS to her prior mental problems. However, Ms. Williams admitted that denial and lying were common symptoms of paranoid schizophrenia.
The chancellor, in her termination order, found that the appellant had not, over a twelve-month period, shown that she was a fit mother for the children. However, with regard to the status of appellant at the time of the October 10, 2000, hearing, the chancellor found:
The court notes that the testimony presented at this hearing indicates that Ms. Cassidy is now taking her medications for her mental illness, is still in therapy, and has complied with the court orders. Ms. Cassidy testified that she loves her children, had taken another parenting class, and would take another more intensive parenting class if ordered by the court.
In other words, appellant had finally, in only two months of medication, reached the level of compliance set by the court.
Since termination of parental rights is an extreme remedy and is in derogation of the natural rights of parents, Anderson v. Douglas, 310 Ark 633, 839 S.W.2d 196 (1988), a heavy burden is placed upon the party seeking to terminate the relationship of parent and child. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). If appellant had claimed disability pursuant to 42 U.S.C. § 12132, the Americans with Disabilities Act, she would have been entided to a reasonable accommodation to allow her to complete reunification services. See Ark. Code Ann.§ 9-27-341(b)(3)(B)(vii)(b). It only stands to reason that fundamental fairness requires ADHS to allow a reasonable time for appellant to show her compliance while on medication. I would reverse the court’s finding that appellant was unfit.
Ms. Williams also testified that there was an allegation of sexual abuse by appellant’s brother toward one of the children. Although the allegation was investigated, Ms. Williams stated that it was unsubstantiated. Appellant never believed the allegation and refused to acknowledge it. Ms. Williams testified that “[t]he main reason for my contention that parental rights should be terminated is that the family is not wilting to even consider that Mark may have abused [L.C.].” The chancellor, in her termination order, retied on Ms. Williams’s testimony and found that appellant’s unwillingness to acknowledge the alleged abuse was evidence of unfitness because she would not provide security for the children. The court, in making this finding, acknowledged that the allegation was unsubstantiated and further acknowledged that appellant was cooperative in seeking therapy for the child allegedly abused. I believe that it is clear error for a court to rely on an unsubstantiated allegation to make a finding of unfitness, and I would reverse.
The twelve-month provision of the parental termination statutes should be interpreted to mean a reasonable amount of time for a parent to show her ability to take parental responsibilities. When a mentally ill person is diagnosed and put on controlling medication, the reasonable time should begin to run anew. While Ms. Cassidy may ultimately prove to be unfit, I believe that she should be given a fair opportunity to demonstrate otherwise.
I would reverse and remand, and I am authorized to state that Judges Jennings and Bird join this dissenting opinion.