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

2021 Ark. App. 208

625 S.W.3d 388

Tiffany Nicole ROBINSON, Appellant

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

No. CV-20-633

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: May 5, 2021

James & Streit, by: Jonathan R. Streit, for appellant.

Ellen K. Howard, Jonesboro, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Casey D. Copeland, attorney ad litem for minor children.

ROBERT J. GLADWIN, Judge

Tiffany Robinson appeals the Crawford County Circuit Court's August 7, 2020 order terminating her parental rights to her three children, F.R., J.R., and H.R. 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), Robinson's counsel has filed a motion to be relieved as counsel and a no-merit brief asserting that there are no issues of arguable merit to support an appeal. The clerk of our court sent copies of the brief and the motion to withdraw to Robinson, informing her of her right to file pro se points for reversal pursuant to Rule 6-9(i)(3), which she has done. The Arkansas Department of Human Services (ADHS) has responded to Robinson's pro se points pursuant to Rule 6-9(i)(5). We affirm the circuit court's decision to terminate Robinson's parental rights to F.R., J.R., and H.R. and grant counsel's motion to withdraw.

We review termination-of-parental-rights cases de novo. Howard v. Ark. Dep't of Hum. Servs. , 2019 Ark. App. 381, 2019 WL 4581457. An order terminating parental rights must be based on a finding by clear and convincing evidence that the termination is in the children's best interest. Id. The circuit court must consider the likelihood that the children will be adopted if the parent's rights are terminated and the potential harm that could be caused if the children are returned to a parent. Id. The circuit court must also find that one of the grounds stated in the termination statute is satisfied. Id. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction that the allegation has been established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, we ask whether the circuit court's finding on the disputed fact is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.

In dependency-neglect cases, if, after studying the record and researching the law, appellant's counsel determines that the appellant has no meritorious basis for appeal, then counsel may file a no-merit petition and move to withdraw. Ark. Sup. Ct. R. 6-9(i)(1). The petition must include an argument section that lists all adverse rulings that the parent received at the circuit court level and explain why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 6-9(i)(1)(A). The petition must also include an abstract and addendum containing all rulings adverse to the appealing parent that were made during the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-9(i)(1)(B).

Because there were no objections that were decided adversely to Robinson at the termination hearing other than the termination itself, the primary issue is whether the evidence was sufficient to support the circuit court's termination-of-parental-rights (TPR) order. Robinson's counsel argues that there would be no merit in challenging the sufficiency of the statutory grounds or the circuit court's best-interest finding. Counsel submits that the circuit court considered the following testimony, exhibits, and statements of the parties in deciding to terminate Robinson's parental rights.

I. Sufficiency of Evidence to Support the TPR Order

The purpose of terminating a parent's rights to a child is to provide permanency in a child's life. Ark. Code Ann. § 9-27-341(a)(3) (Repl. 2020). To this end, a court may order TPR if the court finds that there is an appropriate permanency-placement plan for the children. Ark. Code Ann. § 9-27-341(b)(1)(A). In addition, the court must find by clear and convincing evidence that TPR is in the best interest of the children, taking into consideration the likelihood of adoption and the potential harm to the health and safety of the children that would be caused by returning them to the custody of their parents. Ark. Code Ann. § 9-27-341(b)(3)(A). There also must be clear and convincing evidence to support one or more of the grounds for TPR set forth in section 9-27-341(b)(3)(B).

A. Permanency-Placement Plan for the Children

As addressed in the TPR order, the circuit court found that ADHS had an appropriate plan for permanent placement for the children—adoption. See Migues v. Ark. Dep't of Hum. Servs. , 2019 Ark. App. 439, at 9, 586 S.W.3d 221, 227 (finding that adoption was an appropriate plan for permanent placement).

B. Best-Interest Analysis

To determine the best interest of the children, courts are directed by statute to consider the likelihood that the children would be adopted and the potential harm to their health and safety that would be caused by returning them to their parents’ custody. Ark. Code Ann. § 9-27-341(b)(3)(A).

The question of a child's adoptability is but one consideration in the best-interest-of-the-child equation, and there is no requirement that this factor be established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that the termination is in the best interest of the child. McFarland v. Ark. Dep't of Hum. Servs. , 91 Ark. App. 323, 327, 210 S.W.3d 143, 147 (2005).

The permanency-placement plan for the children was adoption, as previously noted. ADH's witness, Department of Children and Family Services (DCFS) supervisor Whitney Lee, testified that all the children are adoptable despite some behavioral issues on account of the children's not being able to reunify with Robinson. No evidence was presented at the TPR hearing to contradict that evidence; accordingly, we hold there that was clear and convincing evidence to support the circuit court's finding that the children are adoptable.

We also hold that ADHS presented sufficient evidence for the circuit court to find by clear and convincing evidence that there was potential for harm should the children be returned to Robinson's custody. In assessing potential harm, it is not necessary to prove that actual harm will result or to identify a specific harm to the child.

Tovias v. Ark. Dep't of Hum. Servs. , 2020 Ark. App. 337, at 8, 601 S.W.3d 161, 167.

Lee testified as to the potential harm to the children's being returned to Robinson. It was noted that while Robinson was having unsupervised visits, Robinson had left the children with inappropriate caregivers, which was one of the issues that precipitated removal. There was also testimony from ADHS that Robinson would not allow access to her home despite her vehicle being in the driveway and sounds of someone inside the residence. Additionally, Lee testified that substance abuse became a subsequent issue that was not present at the inception of the case. While Robinson had done the substance-abuse-treatment assessment, she failed to attend any sessions of substance-abuse treatment. Lee indicated that there was a potential harm to the children should they be returned to Robinson when the subsequent factor of the substance-abuse issue had not been remedied because Robinson failed to secure any treatment therefor. The foregoing evidence establishes that Robinson's children faced potential harm to their health, safety, and well-being if they were returned to her. Because this factor does not have to be proved by clear and convincing evidence, Tovias , supra , the evidence presented was sufficient to support the circuit court's finding of potential harm, and that evidence, considered with the evidence that the children are adoptable, was sufficient to establish that TPR was in the children's best interest.

C. Proof of at Least One Statutory Ground

ADHS must prove one or more of the statutory grounds for TPR before the circuit court can terminate a parent's parental rights. Moreover, only one ground need be proved in order to terminate a parent's parental rights. Abraham v. Ark. Dep't. of Hum. Servs. , 2017 Ark. App. 491, at 4, 2017 WL 4274607. ADHS filed its termination petition on June 9, 2020. Therein, ADHS alleged and pled five grounds for termination: It alleged that Robinson's parental rights should be terminated because the children had been out of her custody, as a parent, for twelve months and, despite meaningful efforts by ADHS to remedy the reason for removal, Robinson had failed to remedy the reason for removal pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a ) ; that Robinson had failed for twelve months to provide significant material support or to maintain meaningful contact with the children pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(ii) ; that Robinson abandoned the children pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) ; that Robinson manifested an incapacity or indifference to remedy the subsequent factors that arose since the inception of the case pursuant to ...