Opinion
CV-22-111
10-26-2022
BOBBIE VIELE APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES
Eden Law Firm, by: Kimberly Eden, for appellant. Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Dana McClain, attorney ad litem for minor children.
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TENTH DIVISION [NO. 60JV-19-816] HONORABLE SHANICE JOHNSON, JUDGE
Eden Law Firm, by: Kimberly Eden, for appellant.
Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor children.
MIKE MURPHY, JUDGE
This is an appeal from the order of the Pulaski County Circuit Court that terminated appellant Bobbie Viele's parental rights to her children, Minor Child 1 (MC1) (born April 22, 2016) and Minor Child 2 (MC2) (born November 17, 2017). Viele's counsel has filed a motion to withdraw and a no-merit brief 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), stating that there are no issues of arguable merit for appeal. Counsel lists the termination decision as the only adverse ruling by the circuit court and offers an explanation as to why that ruling does not present a meritorious grounds for reversal.
Viele was provided a copy of her counsel's brief and motion, and she was afforded an opportunity to file pro se points for reversal. She filed pro se points, and the Arkansas Department of Human Services (DHS) filed a response to the pro se points. None of her points present meritorious issues to support a nonfrivolous appeal. We affirm and grant counsel's motion to withdraw.
We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep't of Hum. Servs., 2012 Ark.App. 209, 396 S.W.3d 272. An order terminating parental rights must be based on a finding by clear and convincing evidence that the sought-after termination is in the children's best interest. 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. Harper v. Ark. Dep't of Hum. Servs., 2011 Ark.App. 280, 378 S.W.3d 884.
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. Pratt v. Ark. Dep't of Hum. Servs., 2012 Ark.App. 399, 413 S.W.3d 261. 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 brief and move to withdraw. Ark. Sup. Ct. R. 6-9(j)(1). The brief 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(j)(1)(A). The brief must also include a statement of the case and the facts 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(j)(1)(B); Ark. Sup. Ct. R. 4-2(a)(7).
The ground for termination found at Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Supp. 2021) requires the circuit court to find that "a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent." This section requires DHS to prove, among other things, that it made a meaningful effort to rehabilitate the parent and to correct the conditions that caused removal. Sutton v. Ark. Dep't of Hum. Servs., 2016 Ark.App. 459, at 5-6, 503 S.W.3d 842, 846.
MC1 and MC2 were removed from Viele's custody on June 25, 2019, due to allegations of parental unfitness. The parents stipulated to the children being dependent-neglected due to environmental neglect. Viele complied with the case plan and eventually, in September 2020, had her children placed with her for a trial home placement. They were removed from her custody a month later, however, upon a DHS visit to the home that revealed conditions posing a health and safety risk to the children. By January 15, 2021, the home was still unsuitable for children, and Viele had not progressed toward remedying or mitigating the children's removal despite receiving appropriate services. After the January review hearing, Viele moved in with the children's father, who was physically, verbally, and sexually abusive of Viele.
The father later consented to the termination of his parental rights. Viele was afforded, among other services, homemaker services.
At the termination hearing, the caseworker testified that Viele had not remedied the initial reasons that caused the children to be taken into care: the home was in poor condition, not safe, and not appropriate for the children to return. Viele had minimally participated in the homemaker services offered to her, and in fact she eventually decided to not participate. These facts support the twelve-month failure-to-remedy ground found at Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) .
Regarding the best-interest analysis, in its order, the court specifically found that it had considered adoptability and potential harm to the children. As to potential harm, the court found that Viele had a habit of making poor decisions regarding partners and was unable to provide a safe and stable home for her children. Concerning adoption, DHS offered the undisputed testimony of the adoption specialist, Elizabeth Oldridge, who testified that the children are adoptable and that there were ninety-seven possible matches in the DHS database of people willing to adopt children with similar characteristics. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. See, e.g., Cole v. Ark. Dep't of Hum. Servs., 2018 Ark. App, 121, 543 S.W.3d 540. The court found that the children are adoptable. Both best-interest factors are supported on this record.
Having examined the record and appellant's counsel's brief, we have determined that this appeal is wholly without merit. Accordingly, we affirm the order terminating appellant's parental rights and grant her counsel's motion to be relieved from representation.
At the termination hearing, counsel moved to dismiss the petition on the basis that the children are not adoptable. The children have documented oppositional defiant disorder, among other issues, and counsel contended that issues such as these lead to disrupted adoptions. In the brief to this court, appellate counsel not only failed to explain how this motion did not present any meritorious issue for appeal but also failed entirely to discuss the adoptability prong of the best-interest analysis. A counsel's failure to address adverse rulings does not always automatically require rebriefing. Sartin v. State, 2010 Ark. 16, at 1, 362 S.W.3d 877, 878 (holding that the failure to list and discuss all adverse rulings in a no-merit termination-of-parental-rights case does not automatically require rebriefing if the ruling would clearly not present a meritorious ground for reversal); see also Houseman v. Ark. Dep't of Hum. Servs., 2016 Ark.App. 227, 491 S.W.3d 153 (affirming termination of parental rights by addressing a statutory ground that was omitted from counsel's brief). But just because we have the authority to affirm without rebriefing, does not mean that we are required to do so in every case. See Bentley v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 125, at 3 (requiring rebriefing where counsel failed to address numerous adverse rulings); see also Kloss v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 121, at 5 (ordering rebriefing where counsel addressed the incorrect statutory grounds for termination). Like grounds, best interest is an essential element of a termination-of-parental-rights analysis, and adoption is one of only two factors required for consideration in the best-interest prong. It is of further significance in this case before us now because it was part of a specific argument presented to the court below. It is troubling, at best, for counsel to omit this discussion. The duty to review the record and provide this court with an argument as to why there is no merit to the appeal falls first and foremost squarely on parent counsel's shoulders, not this court. We warn counsel to be cognizant of this because a parent losing parental rights deserves a conscientious review by appellate counsel, especially when appellate counsel determines that a no-merit brief is in order. Houseman v. Ark. Dep't of Hum. Servs., 2016 Ark.App. 227, at 13, 491 S.W.3d 153, 161 (Glover, J., concurring).
Affirmed; motion to withdraw granted.
Harrison, C.J., and Barrett, J., agree.