Opinion
CV-22-206
10-26-2022
ANNA ROGERS APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES
Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.
APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-20-229] HONORABLE LYNN WILLIAMS, JUDGE
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.
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 best to achieve permanency and stability in his life. See, e.g., J.T. v. Ark. Dep't of Hum. Servs., 329 Ark. 243, 248, 947 S.W.2d 761, 763 (1997).
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). To this end, a court may order TPR if the court finds that there is an appropriate permanency-placement plan for the child. 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 child, taking into consideration the likelihood of adoption and the potential harm to the health and safety of the child that would be caused by returning the child to the custody of the 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).
1. Permanency-placement plan for the child
As addressed in the TPR order, the circuit court found that DHS had an appropriate plan for permanent placement for the child-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).
2. Best-interest analysis
Counsel next submits that it would be frivolous to seek reversal under this prong of the TPR statute. The Juvenile Code requires that a best-interest finding be based on a consideration of at least two factors: the likelihood of adoption and the potential harm caused by "returning the child to the custody of the parent. . . ." Ark. Code Ann. § 9-27-341(b)(3)(A). Potential harm must be viewed in a forward-looking manner and considered in broad terms. Dowdy v. Ark. Dep't of Hum. Servs., 2009 Ark.App. 180, 314 S.W.3d 722. Each factor does not have to be proved by clear and convincing evidence; it is the overall evidence that must demonstrate clearly and convincingly that TPR is in the child's best interest. McFarland v. Ark. Dep't of Hum. Servs., 91 Ark.App. 323, 201 S.W.3d 143 (2005).
a. Likelihood of adoption
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, supra.
Anna's counsel submits that the evidence in this case supports the circuit court's best-interest finding. Ms. McDaniel, the case supervisor, testified that a data match had been run with regard to this child's criteria. DHS found that there were 196 families interested in adopting a child like him. Ms. McDaniel did not believe that DHS would have any difficulty finding an adoptive home for him. As such, she believed the minor child is "highly adoptable." This court has held that this type of testimony that the child is adoptable is sufficient to satisfy the adoptability prong of the best-interest analysis. See Reed v. Ark. Dep't of Hum. Servs., 2010 Ark.App. 416.
b. Potential harm to the child
In assessing the potential-harm factor, a court is not required to find that any actual harm will result or to identify a particular harm; instead, the potential-harm analysis is to be conducted in broad terms. Tovias v. Ark. Dep't Hum. Servs., 2020 Ark.App. 337, at 8, 601 S.W.3d 161, 167. The uncontroverted evidence indicated that Anna never established a stable home or income and that she tested positive for drugs more than a year into the case. At the time of the TPR hearing she had been in drug treatment for only a month and had not yet completed the program. This court has held that a parent's continued drug use and failure to provide a stable home both support a potential-harm finding in a termination matter. See Tillman v. Ark. Dep't of Hum. Servs., 2015 Ark.App. 119 (continued drug use demonstrates potential harm sufficient to support the circuit court's best-interest finding); Banks v. Ark. Dep't of Hum. Servs., 2010 Ark.App. 53 (lack of stable income is contrary to a child's best interest); Friend v. Ark. Dep't of Hum. Servs., 2009 Ark.App. 606, 344 S.W.3d 670 (failure to obtain stable income or housing is relevant to the best-interest analysis); Latham v. Ark. Dep't of Hum. Servs., 99 Ark.App. 25, 31, 256 S.W.3d 543, 547 (2007) (affirming TPR where a parent was unable to provide a child with a stable home).
Moreover, a court may consider a parent's past behavior as a predictor of likely potential harm. Furnish v. Ark. Dep't of Hum. Servs., 2017 Ark.App. 511, 529 S.W.3d 684. When this case began, Anna was positive for drugs and did not have stable housing. As previously discussed, she never fully complied with the circuit court's orders; was still testing positive for drugs thirteen months after the case had begun; had been kicked out of drug treatment; had been in treatment for only one month sixteen months after the case had begun; had not yet completed drug treatment; and never obtained stable housing or income.
We hold that the foregoing evidence supports the circuit court's decision that the minor child faced potential harm to his health, safety, and well-being if he were returned to Anna; and that evidence, considered with the evidence that the minor child is adoptable, was sufficient to establish that TPR was in his best interest.
3. Proof of statutory ground under Ark. Code Ann. § 9-27-341(b)(3)(B)
Counsel submits that any challenge to the circuit court's determination that statutory grounds to support TPR existed under Ark. Code Ann. § 9-27-341(b)(3)(B) would be frivolous. The circuit court relied on multiple grounds when terminating Anna's parental rights to her son; however, counsel need only address one ground since only one is necessary for TPR. See Draper v. Ark. Dep't of Hum. Servs., 2012 Ark.App. 112, 389 S.W.3d 58.
The strongest ground relied on by the circuit court when terminating Anna's parental rights was that Anna subjected her child to aggravated circumstances pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a) . Aggravated circumstances, as relevant to this case, is defined to include a determination that there is a little likelihood that continued services to Anna would result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a) . This court has noted that the aggravated circumstance that there is a little likelihood that continued services would result in successful reunification is proved when "a parent is not following through with offers of assistance, is not meeting basic goals of the case plan and there is a lack of significant progress on the parent's part." Aday v. Ark. Dep't of Hum. Servs., 2010 Ark.App. 677, at 4. In addition, this court has held that a parent's continued inability to protect and care for his or her child and the failure to benefit from the services provided supports a "little likelihood" finding. See Bentley v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 374, 554 S.W.3d 285. Finally, this court has affirmed TPR when there was a great amount of evidence that demonstrated "continued parental instability despite working with DHS." Chapman v. Ark. Dep't of Hum. Servs., 2014 Ark.App. 525, 443 S.W.3d 564.
Anna's counsel submits that this ground was clearly and convincingly proved at the TPR hearing. The pleadings demonstrated that when the minor child entered foster care, Anna was using drugs and did not have a stable home. The record indicated that two months following the permanency-planning hearing when the goal was changed to adoption-and just three months prior to the TPR hearing-Anna tested positive for drugs and admitted drug use. She was expelled from a drug-treatment program due to an altercation with another patient during the time period between the goal change and the TPR hearing. Ms. Sexton, the caseworker, stated she did not believe that Anna entered the current treatment program on her "own volition" but rather believed Anna entered treatment because of her pending criminal case. Anna never obtained stable housing or income during case, and there was no known plan for housing following the completion of her drug-treatment program.
Additionally, Anna failed to fully follow the circuit court's orders or the case-plan requirements. Ms. Sexton noted that but for the recent entry into a drug-treatment facility, Anna did not participate in any offered services other than visitation. She refused to complete a hair-follicle test and, in addition to testing positive for drugs months before the termination hearing, produced multiple invalid drug screens during the case. She had a drug-related arrest that resulted in multiple felony charges. She reiterated that Anna had been kicked out of a drug-treatment program following the permanency-planning hearing and had only just prior to the TPR hearing entered a program and was refraining from drug use.
This court has affirmed TPR on the little-likelihood ground where the parent failed to consistently participate in services, failed to complete drug treatment, and continued to use drugs but made some progress. See Yancy v. Ark. Dep't of Hum. Servs., 2022 Ark.App. 35 (affirming TPR in a no-merit appeal where the mother failed to consistently comply with the circuit court's orders, continued to use drugs, and had not yet completed drug treatment).
Moreover, we have held that "[a] parent's continued inability to protect and care for her child and failure to benefit from the services provided demonstrate little likelihood that further services will result in a successful reunification." Yancy, 2022 Ark.App. 35, at 8 (citing Jones v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 299, at 8, 578 S.W.3d 312, 317-18). Anna was never in full compliance with the circuit court's orders and failed to participate in, much less complete, even basic services. So although Anna had made progress by entering a drug-treatment treatment program a month before the TPR hearing, this progress did not occur until the case had been open for almost fifteen months. This court has repeatedly held that a child's need for permanency and stability will override a parent's eleventh-hour efforts. Id. (citing Wright v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 263, at 12, 576 S.W.3d 537, 545). Ms. Sexton testified that there were no additional services that could be offered that had not already been offered to the family. Anna's progress came fifteen months into the case, and she had not yet demonstrated that she could maintain the month of sobriety she gained during her month in treatment. In light of the lack of compliance and progress demonstrated by the evidence within the record, it cannot be argued that the circuit court's determination that there was a little likelihood that services would result in successful reunification was clearly erroneous.
With regard to the offer of services by DHS, the agency demonstrated that it offered services throughout the case. Moreover, DHS was found to have made reasonable efforts throughout the matter, and Anna never made any challenge regarding services. Regardless, this court has held that a finding of aggravated circumstances does not require DHS to prove that it provided "meaningful services towards reunification." Draper v. Ark. Dep't of Hum. Servs., 2012 Ark.App. 112, at 15, 389 S.W.3d 58, 66. Thus, any issue regarding services would not result in reversal under this ground. There simply is no meritorious argument to challenge the little-likelihood ground.
B. Objections Decided Adversely to Anna
Linker-Flores I requires that counsel list all objections decided adversely to an appellant and a discussion of why those adverse rulings do not constitute nonfrivolous grounds for appeal. In accordance with Ark. Sup. Ct. R. 6-9(i)(1)(A), Anna's counsel reviewed the record for all rulings adverse to her made by the circuit court on all objections, motions, and requests made by her at the TPR hearing. Other than the TPR order itself, there was only one arguably adverse ruling. Specifically, Anna made two objections during the TPR hearing. One objection was sustained and resolved in her favor, but the other was overruled. However, counsel submits that the one objection that was overruled does not offer a meritorious argument for reversal.
During Ms. Sexton's direct testimony, she was asked if she knew whether Anna had entered drug treatment on "her own volition or . . . as a condition of her bond in a criminal case." Anna objected to the question as being "[b]eyond her knowledge." The circuit court overruled the objection. When permitted to answer, Ms. Sexton simply replied yes, which is not an answer to the either/or question. Thus, counsel maintains that there was no harm when Ms. Sexton answered because she did not actually provide an answer. As such, there was no adverse information submitted to the circuit court.
Counsel also states that there also can be no error in overruling the objection because later during cross-examination, the ad litem noted that Ms. Sexton did not answer the question and asked it again. Yet Anna did not object the second time and permitted the evidence into the record. As such, even though Anna's objection was overruled, no evidence came in on that issue at that time. The evidence entered the record when Anna failed to object. Thus, there can be no issue of arguable merit on this point.
Beyond those two objections, Anna did not (1) make an opening argument; (2) call any witnesses; (3) testify; or (4) make a closing argument. She likewise did not file any motions in this matter. As such, there were no other issues argued by Anna at the TPR hearing and no additional issues preserved for appellate review. Without proper preservation, there can be no meritorious challenge on appeal. Lamontagne v. Ark. Dep't of Hum. Servs., 2010 Ark. 190, 366 S.W.3d 351 (making clear that appellate courts will not address issues raised for the first time on appeal). Counsel acknowledges the motion to intervene filed by the minor child's paternal grandmother and that the paternal grandmother was seeking movement on that issue. Anna, however, made neither mention nor argument regarding that issue, and nothing was preserved on that point. As such, it too cannot form the basis for a meritorious argument. See id.
Having examined the record and the brief presented to us, we have determined that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in TPR cases, and we hold that the appeal is wholly without merit. Accordingly, we affirm the termination order and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Gruber and Barrett, JJ., agree.