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

2022 Ark. App. 417

654 S.W.3d 706

Anna ROGERS, Appellant

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

No. CV-22-206

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 26, 2022

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

One brief only.

ROBERT J. GLADWIN, Judge

Anna Rogers appeals the Garland County Circuit Court's order terminating her parental rights to her minor child. Pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004) ( Linker-Flores I ), and Arkansas Supreme Court Rule 6-9(j), Anna's counsel has filed a motion to be relieved as counsel and a no-merit brief setting forth all adverse rulings from the termination hearing and asserting there are no meritorious issues to support an appeal. Our clerk court mailed a copy of counsel's motion and brief to Anna, informing her of her right to file pro se points for reversal. She has filed none. We affirm the termination order and grant counsel's motion to withdraw.

I. Facts and Procedural History

On September 8, 2020, the Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on the minor child after it was notified that the minor child had been held hostage by his father during a stand-off with law enforcement officers. Anna had not been with the minor child leading up to that incident, but she admitted using drugs. Due to the parental drug use and instability, DHS exercised an emergency hold on the minor child. On September 11, DHS filed a petition for dependency-neglect alleging that the minor child was a dependent-neglected juvenile. A supplemental affidavit was filed, separate from any petition, detailing that the minor child has siblings who had been living with their maternal grandmother for several years, and DHS had no safety concerns over those children staying in that home. The minor child was placed in DHS's custody pursuant to an ex parte emergency order entered the same day the petition was filed. A probable-cause hearing was held on September 15, and the circuit court continued the minor child in DHS's custody.

A combined adjudication and disposition order was entered on October 23. The circuit court found that the minor child was a dependent-neglected juvenile due to neglect and parental unfitness. The goal of the case was set as reunification with concurrent plans of adoption or relative/fictive-kin placement. Anna was directed to comply with the circuit court's order and the requirements of the DHS case plan and was permitted visitation.

An agreed review order was entered January 22, 2021. The circuit court directed that the minor child would remain in DHS's custody but found that the case plan was "moving toward an appropriate permanency plan" for the minor child The circuit court determined that the primary goal of the case would remain reunification with the concurrent plans of adoption or relative/fictive-kin placement remaining unchanged. Anna was found to be in compliance with the case plan and circuit court orders. Anna had visited with the minor child and tested negative on drug screens, but she missed her intake appointment for drug treatment and was found to lack stable housing. Anna was ordered to submit to a drug-and-alcohol assessment and follow the resulting recommendations; participate in therapy; complete a psychological evaluation and follow any related recommendations; submit to random drug screens; attend visitation; complete parenting classes; maintain a stable home; refrain from using drugs; maintain sufficient income; make timely requests for transportation; cooperate with DHS; and participate in any service requested by DHS.

On March 26, a motion to intervene was file by the minor child's paternal grandmother, Katrina Ann Grider. The motion noted that Ms. Grider was an approved foster parent, but DHS declined to place the minor child in her home. The circuit court entered an order on April 13, holding the issue regarding intervention in abeyance "until or if the goal of reunification changes."

Another agreed review order was entered April 7 in which the court directed that the minor child would remain in DHS's custody with the primary goal of the case remaining reunification with a concurrent goal of relative or fictive-kin placement. Anna was found to have minimally complied with the circuit court orders and case-plan requirements. The circuit court continued its prior orders.

On August 16, the circuit court entered a permanency-planning order. The goal of the case was changed to adoption. This order noted that the circuit court concluded that Anna was not in compliance with either the case plan or circuit court orders. The prior orders were continued.

DHS filed a petition for termination of parental rights (TPR) on November 2. The agency alleged that TPR was warranted pursuant to multiple statutory grounds and also pled that TPR was in the minor child's best interest.

A hearing on the TPR petition was held on January 5, 2022. The first witness was Kathleen McDaniel, a DHS supervisor. Ms. McDaniel testified that the minor child is highly adoptable and that 196 families had been identified as potential matches for him.

The next witness to testify was Sydney Sexton, the DHS caseworker assigned to the family. She testified that Anna visited with her son and that the visits mostly went well. Ms. Sexton explained that Anna was currently in drug treatment after having entered treatment approximately fifteen months after the minor child entered foster care. Ms. Sexton testified that Anna had some negative drug screens but tested positive for drugs on October 5, 2021. That drug screen was introduced into evidence and detailed that Anna tested positive for drugs and had admitted drug use. Ms. Sexton also detailed that Anna never participated in therapy, failed to complete a psychological evaluation, did not complete parenting classes, failed to obtain stable housing, and never established a stable income. She stated that the only progress Anna made during the case was enrolling in treatment during the past month. Ms. Sexton did not believe there were additional services to offer Anna that had not been previously requested.

The report entered into evidence demonstrated that, although DHS made referrals for services, Anna did not participate in any service beyond visitation. The report also noted that Anna had an intake at Harbor House on October 20, 2021, but she was asked to leave that program "due to an altercation with another patient." Following her expulsion from that program, Anna enrolled at Hollow Creek, where she was at the time of the TPR hearing and was apparently sober.

Anna did not offer any testimony, introduce any evidence, or make a closing argument. At the conclusion of the TPR hearing, the circuit court ruled from the bench that it was granting DHS's TPR petition. The decision was memorialized within a written order filed on January 24, 2022. Anna filed a timely notice of appeal from that order on January 27. The day after the TPR order was entered, the attorney for the proposed intervenor, the paternal grandmother, filed a letter with the circuit clerk requesting that the circuit court reconsider her motion to intervene.

II. Standard of Review

Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Gilbert v. Ark. Dep't of Hum. Servs. , 2020 Ark. App. 256, at 2, 599 S.W.3d 725, 726–27. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Id. See Ark. Code Ann. § 9-27-341(b)(3)(B), (A) (Supp. 2021). Statutory grounds and a best-interest finding must be proved by clear and convincing evidence, which is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. We review termination-of-parental-rights cases de novo. Id. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep't of Hum. Servs. , 2015 Ark. 356, at 7, 2015 WL 5895440.

III. Potential Issues for Appeal

Linker-Flores I , supra , requires the discussion of any potential issues that might support an appeal and also a discussion of all rulings adverse to Anna. After a conscientious review of the record, counsel for Anna correctly asserts that there can be no meritorious challenge to the sufficiency of the evidence to support termination of Anna's parental rights. Counsel must also discuss any possible issues and adverse rulings as required by Linker-Flores I . There was only one objection that was arguably decided adversely to Anna at the TPR hearing other than the termination itself; accordingly, the analysis primarily focuses on whether the evidence was sufficient to support the circuit court's TPR order.

A. Sufficiency of Evidence to Support the TPR Order

This court must decide whether there was clear and convincing evidence to support the circuit court's decision to terminate Anna's parental rights. Linker-Flores v. Ark. Dep't of Hum. Servs. , 364 Ark. 224, 228, 217 S.W.3d 107, 111 (2005) ( Linker-Flores II ). The circuit court was required to consider not only Anna's situation but also the best interest of the child and how...