Kloss v. Ark. Dep't of Human Servs.

2019 Ark. App. 389

585 S.W.3d 725

Clint KLOSS, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees

No. CV-18-709

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: September 18, 2019

Leah Lanford, Arkansas Public Defender Commission, for appellant.

One brief only.

PHILLIP T. WHITEAKER, Judge

Clint Kloss appeals a Pulaski County Circuit Court order terminating his parental rights to his daughters, K.K.1 and K.K.2.¹ Pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i) (2018), Kloss's counsel has filed a no-merit brief asserting that there are no issues of arguable merit to support an appeal and an accompanying motion to be relieved as counsel. Counsel's brief contains an abstract and addendum of the proceedings below and states that the only rulings adverse to Kloss were the termination decision and the denial of his request for additional time to achieve reunification. Counsel asserts that there was sufficient evidence to support the termination and that the trial court's denial of additional time did not constitute reversible error. After carefully reviewing the record and the no-merit brief, we conclude that counsel's brief adequately addresses all the adverse rulings and correctly posits that there are no issues of arguable merit on which to base an appeal.

As required by Rule 6-9(i)(3), the clerk of our court sent copies of the brief and the motion to withdraw to Kloss informing him of his right to file pro se points for reversal; he has done so. We have reviewed his claims and hold that they were not raised below; are not preserved for appeal; or present no meritorious basis for reversal. Therefore, we affirm.

We provide the following summary of facts and procedural history of the case. Sherrie Sinkey and Clint Kloss are the unmarried, biological parents of K.K.1 and K.K.2. Sinkey and Kloss were living together with the children in May 2017, when the Pulaski County Sheriff's office executed a search warrant on their home. During the execution of the warrant, the officers found illegal controlled substances,² drug paraphernalia, and stolen property. As a result, Kloss and Sinkey were arrested on two counts of endangering the welfare of a minor, maintaining a drug premises (enhanced), possession of paraphernalia, possession of a Schedule II substance, and felony theft by receiving. Following his arrest, Kloss overdosed in the back of the police vehicle and had to be rushed to the emergency room. The Arkansas Department of Human Services (DHS) responded to take a seventy-two-hour hold on the children. DHS found the home infested with roaches, and the children were dirty and covered in bug bites.

In July 2017, the circuit court adjudicated the children dependent-neglected as a result of parental unfitness, living in a drug premises, being the subject of a drug raid, exposure to toxic illegal drugs, and environmental neglect. The court also found, by clear and convincing evidence, that both Sinkey and Kloss had subjected the children to aggravated circumstances based on extreme and multiple risks of harm.³ Despite its finding of aggravated circumstances, the court declined to fast track the case.

Subsequent to the adjudication, DHS provided services to Kloss, and the court monitored the services through appropriate review hearings. Eventually, Kloss was adjudicated the father and obtained status as a parent at the permanency-planning hearing on March 27, 2018.

In May 2018, DHS filed a petition to terminate the parental rights of both Sinkey and Kloss. As to Kloss, DHS alleged three grounds for termination: (1) failure to remedy as a noncustodial parent, Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) ; (2) other factors or issues arising subsequent to adjudication, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) ; and (3) aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) . The court held a hearing on the petition, and ultimately the trial court terminated Kloss's parental rights based on all three grounds alleged in the petition. The court then found that termination was in the best interest of the children, considering potential harm and adoptability. Kloss appeals the termination decision.

Pursuant to Arkansas Code Annotated section 9-27-341(b)(3), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that (1) there are one or more statutory grounds and (2) it is in the best interest of the juvenile, including consideration of the likelihood that the juvenile will be adopted and the potential harm to the health and safety of the child if returned to the custody of the parent. We review termination-of-parental-rights orders de novo but will not reverse the trial court's findings of fact unless they are clearly erroneous. Harjo v. Ark. Dep't of Human Servs. , 2018 Ark. App. 268, 548 S.W.3d 865. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must defer to the superior position of the circuit court to weigh the credibility of the witnesses. Ewasiuk v. Ark. Dep't of Human Servs. , 2018 Ark. App. 59, 540 S.W.3d 318. On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.

Counsel states in her no-merit brief that any argument challenging the statutory grounds for termination would be wholly frivolous. Regarding the statutory grounds supporting termination, counsel argues that there was sufficient evidence to support the trial court's finding of aggravated circumstances. DHS pled, and the trial court found, that Kloss had subjected his children to aggravated circumstances, meaning there is little likelihood that services to Kloss will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B) .⁴ Counsel correctly asserts that Kloss was determined to be the father of K.K.1 and K.K.2 at the permanency-planning hearing; thus, he falls within the class of persons to whom this statutory ground applies. Counsel further argues that the evidence reflects that there is little likelihood that services would result in a successful reunification. Counsel is correct in this regard as well.

We agree that there was little likelihood of successful reunification and that there was sufficient evidence to support the trial court's finding of aggravated circumstances. Kloss has a persistent and unresolved addiction to drugs. Kloss admitted in his own testimony that he has a drug problem and admitted that his drug of choice is methamphetamine. While he denied having a problem with either cocaine or opiates, he admitted testing positive in a hair-follicle test to multiple drugs and admitted that he had overdosed on fentanyl. In response to Kloss's addiction, DHS provided rehabilitation services, including drug screens and a drug assessment. On the drug screens, Kloss tested positive for amphetamines, methamphetamine, opiates (hydrocodone and oxycodone ), cocaine, benzos, and BUP, which is a narcotic. He did complete his drug assessment but did not complete the recommended drug counseling. James Zachary Green, a substance-abuse counselor, testified that it had been recommended that Kloss attend nine individual sessions and eighteen group sessions over a nine-week period. Kloss did not attend any of the individual sessions and attended only eight group sessions. While Kloss testified that he believes the drug classes have been helpful, he admitted that he does not have a sponsor, could not recite what "step" of "12 step" recovery he was practicing, and continues his relationship with Sinkey, who admittedly could not maintain her own sobriety.⁵

In addition, DHS offered Kloss parenting classes and a psychological evaluation, both of which he completed. He was then referred for individual counseling. Lynn Hemphill, a clinical social worker, testified that Kloss was one of his clients and that he was scheduled for weekly individual therapy sessions to deal with generalized anxiety and situational depression. After the initial meeting, Hemphill considered referring him to a psychiatrist for a medication-management assessment to resolve some of Kloss's issues. In all, Hemphill saw Kloss on only one other occasion,⁶ and Kloss never saw a psychiatrist.

In completing a de novo review of the record, we hold that the trial court's determination that there was little likelihood of successful reunification was not clear error. See Ladd v. Ark. Dep't of Human Servs. , 2017 Ark. App. 419, 526 S.W.3d 883 (mother failed to remedy drug issues despite services directed at her addiction); Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, 489 S.W.3d...