McCullar v. Ark. Dep't of Hum. Serv.

683 S.W.3d 202

2024 Ark. App. 15

Kirstie MCCULLAR and Marsheon Nunn, Appellants

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

No. CV-23-382

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered January 17, 2024

APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT [NO. 56JV-21-117], HONORABLE CHARLES M. MOONEY, JR., JUDGE

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for separate appellant Kirstie McCullar.

James & Streit, by: Jonathan R. Streit, for separate appellant Marsheon Nunn.

BART F. VIRDEN, Judge

₁This is a combined no-merit appeal from the Poinsett County Circuit Court order terminating the parental rights of Kirstie McCullar and Marsheon Nunn to their children, MC1 and twins, MC2 and MC3. 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(j) (2021), appellants’ attorneys have filed separate motions to be relieved as counsel and separate no-merit briefs asserting that there are no issues of arguable merit to support an appeal. The clerk of our court sent copies of the briefs and the motions to withdraw to McCullar and Nunn, informing them of their right to file pro se points for reversal pursuant to Rule 6-9(j)(3); they have not done so. Having examined the record, we are satisfied that ₂there are no issues of arguable merit to support an appeal; therefore, we affirm the termination decision and grant counsel’s motions to be relieved.

I. Factual and Procedural History

On October 10, 2021, the Arkansas Department of Human Services (Department) removed MC1, who was eighteen months old, and MC2 and MC3, both nine months old, from McCullar and Nunn’s care and custody due to the parents’ arrest for third-degree domestic battery, public intoxication, and three counts of endangering the welfare of a minor.

On October 12, the circuit court entered an order for ex parte emergency custody, and subsequently the parents stipulated to probable cause. In the probable-cause order entered October 27, the court ordered the parents to comply with the case plan and court orders, cooperate and stay in contact with the Department, watch the video "The Clock is Ticking," abstain from drug use, provide the Department with prescription information, complete parenting classes, obtain appropriate housing and employment, and provide the Department with a budget.

The adjudication hearing was held on November 16. The parties stipulated and the court found that the children were dependent-neglected. The court also noted that its finding was due to neglect as the result of the parents’ alcohol use that led to domestic violence involving injuries to both parents and their subsequent arrest, which left the children without a caretaker. The parents were ordered to undergo drug-and-alcohol ₃assessment, psychological evaluation, anger-management and domestic-violence counseling, and follow all recommendations. The circuit court determined that the goal of the case was reunification.

The court conducted two review hearings. At the first hearing on March 1, 2022, the court heard evidence McCullar was "for the most part’’ not in compliance. She was incarcerated, failed to undergo the recommended treatment pursuant to the drug-and-alcohol assessment, tested positive for methamphetamine three times since November, and failed to complete anger-management or parenting classes. Additionally, McCullar had been arrested three times for violating the no-contact order regarding Nunn, charged with public intoxication twice, and charged with disorderly conduct and resisting arrest. She had attended only two out of nine visitations with her children, and both times she left early. Regarding Nunn, the court found that he had not complied with the case plan or orders of the court, and he had not demonstrated progress toward reunification. Specifically, he had not obtained a "regular residence" and was unavailable for home visits and random drug screens. He had not completed parenting or angermanagement classes, and he was arrested along with McCullar for violating the nocontact order and charged with public intoxication. Nunn had attended two out of six visitations, and he left early both times. The court retained reunification as the goal of the case.

At the second review hearing on June 14, the court heard evidence that McCullar was still incarcerated, and she was not attending treatment or counseling sessions recommended pursuant to the drug-and-alcohol assessment. The Department was ordered to attempt to ₄provide services to McCullar despite her incarceration, and the court noted that she would be released August 22. The court found that Nunn had not complied with the case plan, benefited from services, or demonstrated any progress toward reunification. Specifically, he had not obtained regular housing and was unavailable for home visits or random drug testing. He had not completed parenting or anger-management classes, and he had not undergone drug-and-alcohol assessment. He requested reduced visitation, from four hours a week to two hours a week. The goal of the case remained reunification.

A permanency-planning hearing was held on October 11. In the permanencyplanning order, the court found that McCullar had not complied with the case plan. Specifically, she had not completed parenting or anger-management classes and had not obtained stable housing, and after her release from her previous incarceration, she had incurred new charges for violating the no-contact order, public intoxication, and assaulting a police officer. The court found that Nunn had not complied with the case plan or the orders of the court by failing to obtain a regular residence, make himself available for home visits and random drug screens, and complete anger-management classes. Nunn missed several scheduled drug-and-alcohol assessments and did not complete the assessment until July. He had not resolved his legal issues. The goal was changed to adoption.

On January 9, 2023, the Department filed its petition to terminate parental rights alleging multiple statutory grounds: twelve months failure to remedy; subsequent factors; and aggravated circumstances with little likelihood that further services would lead to reunification. On February 28, the circuit court held a hearing on the petition at which time ₅it heard testimony from an adoption specialist, the Department caseworker, the foster mother, a paternal uncle, McCullar, and Nunn.

On March 10, the circuit court entered an order terminating McCullar and Nunn’s parental rights, finding that the Department had proved each of the statutory grounds it had alleged on the bases of the parents’ rearrests, housing and employment instability, lack of compliance with drug-and-alcohol treatment programs, and failure to attend counseling. Additionally, the court found that McCullar candidly admitted that she could not provide a home for the children that day. The court found that McCullar was more interested in her relationship with Nunn than with her children. There was evidence that MC1, MC2, and MC3 are adoptable, and the foster parent was interested in adopting all three children. The court determined that the children would be exposed to the potential for harm because of the parents’ housing instability, potential exposure to domestic violence, and parental drunkenness. Additionally, the court addressed the parents’ assertion that the Department failed to consider relative placement, finding that the "relatives were aware that this case was pending, and the mother admitted that the relatives were looked at and none have intervened." The court ordered that the parents were to receive further reunification services, including visitation, until the adoption was finalized.¹ McCullar and Nunn have filed timely ₆notices of appeal, and their attorneys have now filed separate no-merit briefs and motions to be relieved as counsel.

II. Standard of Review

[1] Arkansas Supreme Court Rule 6-9(j)(1) allows counsel for an appellant in a termination case to file a no-merit brief and motion to withdraw if, after studying the record and researching the law, counsel determines that the appellant has no meritorious basis for appeal. In the brief, counsel must include an argument section that lists all circuit court rulings that are adverse to the appellant on all objections, motions, and requests made by the party at the hearing from which the appeal arose and an explanation why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 6–9(j)(1)(A). In evaluating a no-merit brief, we determine whether the appeal is wholly frivolous or whether there are any issues of arguable merit for appeal. Linker-Flores, supra; Cullum v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 34, at 5–6, 2022 WL 221242.

[2, 3] We review termination-of-parental-rights cases de novo. Holmes v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 495, 505 S.W.3d 730. We will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Id.

III. Discussion

A. Statutory Grounds

To terminate parental rights, a court must find sufficient proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341 (b)(3)(B) (Supp. 2021). Here, the court terminated McCullar’s and Nunn’s parental rights after it found three statutory ₇grounds to exist: abandonment, subsequent other factors, and aggravated circumstances. Although the circuit court found three statutory grounds for termination, we may affirm a termination on only one ground. Cullum, supra. We hold that there was ample evidence submitted to support the court’s aggravated-circumstances finding.

[4, 5] A court of competent jurisdiction may terminate parental rights when the parent is found to have subjected any juvenile to aggravated circumstances. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A). As applied in this case, aggravated circumstances means that ...