Opinion
No. CA12-811
02-13-2013
ANTONIUS COLLINS II & JASMINE EASON APPELLANTS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES & MINOR CHILDREN APPELLEES
Janet Lawrence, for appellant. Tabitha Baertels McNulty, for appellee.
APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [JV-2010-163]
HONORABLE RALPH WILSON, JR., JUDGE
AFFIRMED; MOTION GRANTED
DAVID M. GLOVER , Judge
Appellants Antonius Collins II and Jasmine Eason appeal from the termination of their parental rights to A.C.1 (d.o.b. 5-29-2008), A.C.2 (d.o.b. 9-9-2009), and A.E. (d.o.b. 10-10-2011). They are represented by separate counsel. Collins's counsel has filed a motion to withdraw and a brief pursuant to Linker-Flores v. Arkansas Department of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i)(2012), contending that his appeal is wholly without merit. Eason's counsel has filed a "merit brief," contending that the trial court erred in concluding that it was in the children's best interest to terminate her parental rights. We affirm the termination of Collins's parental rights to the children and grant his counsel's motion to withdraw. We also affirm the termination of Eason's parental rights.
Brief Background
Eason earlier appealed from the adjudication of dependency-neglect concerning one of the three children, A.E., and our opinion in that appeal sets out the background of abuse that has now resulted in the termination of both parents' rights to all three children. Eason v. Arkansas Dep't of Human Servs., 2012 Ark. App. 507, ___ S.W.3d ___. In our review of A.E.'s dependency-neglect adjudication in that earlier appeal, it was clear that A.C.2 had been seriously physically abused, resulting in the removal of both A.C.1 and A.C.2 and adjudications of dependency-neglect for both. Those adjudications were not appealed by either parent. It was not clear who had actually inflicted that abuse, but only three people were supervising the children during that time period: Eason, Collins, and Minnie Eason (Eason's mother). A.E., who was born in the midst of the proceedings that were addressing A.C.2's physical abuse, was also removed under emergency custody and adjudicated dependent-neglected. That adjudication resulted in Eason's earlier appeal, but Collins did not appeal. Our court affirmed the dependency-neglect adjudication concerning A.E. At some point, Collins was incarcerated; he was still incarcerated at the time of the termination hearing. Collins last visited the children on May 19, 2011; he never established paternity; and reunification was never a goal of the case for him. Adoption eventually replaced reunification as the goal concerning Eason, and the parental rights of both parents were subsequently terminated, resulting in the appeals that are currently before us.
Antonius Collins II
We first address the "no-merit" portion of the case concerning the putative father, Antonius Collins II. Collins's counsel has ordered the entire record and examined it for adverse rulings, explaining why none would support a meritorious argument for reversal. The clerk of our court attempted to provide Collins with a copy of his counsel's brief and motion, along with a letter informing Collins of his right to file pro se points for reversal. The clerk sent these items via certified mail to Collins's last known address, but the items were returned by the postal service, marked "REFUSED/UNABLE TO FORWARD." No additional contact information was available. Thus, Collins did not file pro se points for reversal. Neither the Department of Human Services nor the children's attorney filed a brief with respect to Collins.
After carefully examining the record and counsel's brief for Collins, we hold that his counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit appeals from terminations of parental rights and that the appeal is wholly without merit. Accordingly, by memorandum opinion we affirm the termination of Collins's putative parental rights to A.C.1, A.C.2, and A.E. See In re Memorandum Opinions, 16 Ark. App. 301, 700 S.W.2d 63 (1985); Ark. Sup. Ct. R. 5-2(e). We also grant his counsel's motion to be relieved from representation.
Jasmine Eason
We next address Jasmine Eason's appeal from the termination of her parental rights to the three children. She contends that the evidence does not support the conclusion that the termination of her parental rights to A.C.1, A.C.2, and A.E. was in the children's best interest. We disagree.
We review termination of parental rights cases de novo. Reed v. Arkansas Dep't of Human Servs., 2012 Ark. App. 369, ___ S.W.3d ___. 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 children. Id. Grounds for termination of parental rights must be proved by clear and convincing evidence. Id. It must also be proved that termination of parental rights is in the children's best interest. Id. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. We give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. Where there are inconsistences in the testimony presented at a termination hearing, the resolution of those inconsistencies is best left to the trial judge, who heard and observed those witnesses first-hand. 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.
The best-interest inquiry requires consideration of two factors: 1) the children's likelihood of adoption, and 2) the potential of harm to the children if returned to the parent's custody. Id. However, these two factors do not, themselves, have to be supported by clear and convincing evidence. Id. Potential harm must be viewed in a forward-looking manner and in broad terms. Id.
Here, the children's likelihood of adoption was undisputed and is not challenged on appeal. It is the potential for harm that defeats a conclusion that it would be in the children's best interest to return to Eason's care. A.C.2 suffered very serious injuries; a physician opined that the injuries were not accidental; the injuries occurred over a long period of time; and the abuse began at a very young age. The injuries included multiple rib fractures and multiple leg fractures. Eason refused to accept any responsibility for the injuries, and she failed to protect A.C.2 from the ongoing abuse that lasted from age three weeks to nine months. She contends that her parental rights to all three children should not be terminated simply because she could not identify who perpetrated the abuse on A.C.2. She also argues that she complied with the case plan and that she maintained contact with her three sons throughout the case. Her arguments are not convincing.
The abuse of A.C.2 in this case was so severe that A.C.1, and then A.E. when he was born, were also taken into emergency custody and found to be dependent-neglected. It was determined that, regardless of whether Eason was the actual abuser, she either knew or should have known that A.C.2 was being abused and yet she did nothing to prevent that abuse. Eason's compliance with the case plan and continued contact with her children does not entitle her, in and of itself, to retain her parental rights to these children. She continues to deny knowledge of who abused A.C.2. We have upheld the termination of parental rights in cases where there has been compliance with the case plan, but a refusal to accept responsibility for or to explain the abuse of a child. See, e.g., Corley v. Arkansas Dep't of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1994). The trial court had to assess, from all of the evidence before it, whether Eason's steps toward making a safe environment for her children had been successful. Our de novo review of the record in this case does not leave us with a definite and firm conviction that a mistake has been made. Accordingly, we find no clear error in the trial court's termination of Eason's parental rights to all three children.
Affirmed as to both parties; motion granted as to Antonius Collins II.
WHITEAKER and VAUGHT, JJ., agree.
Janet Lawrence, for appellant.
Tabitha Baertels McNulty, for appellee.