Volume 72 — Arkansas Appellate Reports

1. <bold>Parent child — termination of parental rights — burden</bold> <bold>of proof. —</bold> Any party seeking to terminate the parental relationship bears the heavy burden to prove by clear and convincing evidence that the parent has significantly and without just cause failed to communicate with or support the child as required by law or decree. 2. <bold>Adoption — proceedings are in derogation of parent's natural</bold> <bold>rights — construction of adoption statutes. —</bold> Adoption proceedings are in derogation of the natural rights of parents, and statutes permitting such are to be construed in a light favoring continuation of the rights of natural parents. 3. <bold>Appeal error — chancery cases — standard of review.</bold> <bold>—</bold> When the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the inquiry on appeal is whether the chancery court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous; clear and convincing evidence is defined as "that degree of proof which will produce in the fact finder a firm conviction as to the allegation sought to be established"; in making such determination, the appellate court must give due regard to the opportunity of the trial court to judge credibility of witnesses. 4. <bold>Parent child — termination of parental rights — mere</bold> <bold>existence of potential grounds for termination does not require</bold> <bold>chancellor to terminate parental rights. —</bold> Arkansas Code Annotated section <cross_reference>9-27-341</cross_reference> (Repl. 1999) expressly vests a chancellor with discretion to decide whether or not to terminate parental rights, and states that the court may consider a petition to terminate parental rights in certain circumstances; accordingly, the mere existence of potential grounds for termination does not require a chancellor to terminate parental rights; that decision must be guided by a determination of whether or not reunification can be accomplished within a reasonable time so as to provide permanency and stability in a child's life.<page_number>Page 291</page_number> 5. <bold>Parent child — termination of parental rights — at</bold> <bold>point when chancellor gave appellant final chance to comply with case</bold> <bold>plan permanency was not in issue. —</bold> Where the chancellor, in the exercise of his discretion, essentially gave appellant a final chance to comply with the case plan, and at that time, it was apparent that the child was going to be moved from her therapeutic foster home, there was not a permanency issue at that point. 6. <bold>Parent child — termination of parental rights —</bold> <bold>insufficient evidence to show appellant willfully failed to pay</bold> <bold>support. —</bold> There was no appreciable evidence that appellant had the ability to pay even a nominal amount of support even after she stopped abusing drugs and started working at regular employment; consequently, the appellate court could not conclude that appellant willfully refused to pay support; indeed, according to appellee, one of the reasons that it opposed returning the child to appellant was that it concluded that her indebtedness prevented her from achieving self-sufficiency. 7. <bold>Parent child — termination of parental rights —</bold> <bold>chancellor's conclusion that young child had not and was unlikely to</bold> <bold>bond with appellant was clearly erroneous.--</bold> The chancellor's requirement that there be a determination of whether or not appellant and the child had "bonded" was simply unreasonable given the circumstances; appellant was allowed only a single overnight visit; the child's foster mother acknowledged that the child required two or three weeks for "settling in," and appellee steadfastly opposed giving appellant that kind of time; moreover, the sparse anecdotal evidence offered by persons who confessed to having no expertise in determining the capacity of the child for bonding with her mother did not satisfy the clear and convincing evidence standard; consequently, the chancellor's ultimate conclusion that the child, still a toddler, had not and was unlikely to bond with appellant was clearly erroneous. 8. <bold>Appeal error — chancellor's decision clearly erroneous</bold> <bold>— decree terminating parental rights reversed. —</bold> Where the chancellor's ultimate conclusion was clearly erroneous, the chancery court decree terminating appellant's parental rights was reversed and the case remanded. [cme]

1. <bold>Appeal error — denial of motion to suppress — standard of</bold> <bold>review. —</bold> On review of a trial court's denial of a motion to suppress, the appellate court makes an independent examination based on the totality of circumstances, and will reverse only if the trial court's ruling was clearly against the preponderance of the evidence; in making that decision, the court reviews the evidence in the light most favorable to the State. 2. <bold>Criminal procedure — request for consent to search —</bold> <bold>neither probable cause or reasonable suspicion necessary. —</bold> Neither probable cause nor reasonable suspicion is necessary for an officer to request consent for a search. 3. <bold>Constitutional law — scope of search — how measured. —</bold> Generally, the scope of a search is limited by its expressed object; the standard for measuring the scope of a suspect's<page_number>Page 467</page_number> consent under the Fourth Amendment is that of "objective" reasonableness: what the typical reasonable person would have understood by the exchange between the officer and the suspect. 4. <bold>Criminal procedure — consent to search — scope limited to</bold> <bold>pat-down search for weapons. —</bold> Where, from the exchange between the officer and appellant, a reasonable person would have believed that appellant was consenting to a pat-down of his outer garments for guns, knives, or other items that could serve as instruments of harm, and the officer testified that he asked appellant for a search only out of his concern for his personal safety, the scope of the search was limited to a pat-down search for weapons. 5. <bold>Criminal procedure — pat-down search — "plain-feel</bold> <bold>doctrine." —</bold> The United States Supreme Court, in addressing what has been dubbed the "Plain Feel Doctrine," has stated that if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context. 6. <bold>Constitutional law — search contrary to permissible scope —</bold> <bold>trial court's determination that search did not violate</bold> <bold>Fourth Amendment was clearly against preponderance of</bold> <bold>evidence. —</bold> Where, based on consent, the officer was justified in patting appellant down for weapons and could have recovered any items whose incriminating nature was immediately apparent, but it was clear that the officer did not know the item's incriminating nature before removing it from appellant's pocket, the search was contrary to permissible scope, and the trial court's determination that the search did not the violate the Fourth Amendment was clearly against the preponderance of the evidence. 7. <bold>Constitutional law — vehicle improperly impounded — search</bold> <bold>of vehicle unconstitutional. —</bold> Where the applicable statute did not grant any authority to impound the vehicle of an operator who could not present proof of insurance, it only called for the officer to impound the vehicle's license plate, and the provision requiring the police officer to issue the operator a temporary ten-day sticker to use in lieu of an official license plate provided a strong implication that the operator of the vehicle should be allowed to keep the vehicle and has at least ten days to present proof of insurance, the officer improperly impounded appellant's vehicle for failure to present proof of insurance, and his subsequent search of the vehicle was unconstitutional.<page_number>Page 468</page_number>