Snow v. Ark. Dep't of Human Servs. ( 2017 )

Cite as 2017 Ark. App. 655
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-584
JONATHAN SNOW Opinion Delivered: November 29, 2017
APPELLANT APPEAL FROM THE BAXTER
COUNTY CIRCUIT COURT
V. [NO. 03JV-16-31]
ARKANSAS DEPARTMENT OF HONORABLE DEANNA SUE
HUMAN SERVICES AND MINOR LAYTON, JUDGE
CHILD
AFFIRMED; MOTION TO
APPELLEES WITHDRAW GRANTED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s termination of his parental rights to A.S.,
born 1/27/2016. 1 Appellant’s counsel has filed a motion to withdraw as counsel and a no-
merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 2 and Arkansas
Supreme Court Rule 6-9(i), 3 stating that there are no meritorious grounds to support an
appeal. The clerk mailed a certified copy of counsel’s motion and brief to appellant,
informing him of his right to file pro se points for reversal. Appellant has failed to file any
pro se points. We affirm and grant counsel’s motion to withdraw.
1
The parental rights of A.S.’s mother, Alyssia Kirby, were terminated in the same
order; she is not a party to this appeal.
2
359 Ark. 131, 194 S.W.3d 739 (2003).
3
(2016).
Cite as 2017 Ark. App. 655
A report was made to the Arkansas State Police Child Abuse Hotline on February
22, 2016, alleging abuse against A.S. by an unknown offender. A.S. had been seen by his
primary-care physician who had him rushed by ambulance to Baxter Regional emergency
room due to his loss of two pounds in the three weeks since his birth, and multiple bruises
on his head, neck, and chest, of which Kirby had an explanation for only one. A.S. had a
seizure while in the emergency room, requiring intubation; he was flown to Arkansas
Children’s Hospital. A CT scan revealed brain swelling and bleeding with a small midline
shift. A chest x-ray showed a fresh fracture to the clavicle that had not happened at birth.
Appellee Arkansas Department of Human Services (DHS) filed a petition for emergency
custody and dependency-neglect on February 25, 2016. 4 Appellant was named as the
putative father of A.S. An ex parte order granting the petition was entered on February 26,
2016.
A probable-cause order was entered on May 11, 2016, following a March 2, 2016
hearing, finding that probable cause existed and continued to exist for A.S.’s removal from
Kirby’s custody. Appellant was not present at the hearing, but the order noted Kirby’s
testimony that she and appellant lived together prior to A.S.’s removal from her custody and
that she had no doubt that appellant was the biological father of A.S.
On May 26, 2016, the circuit court entered its order adjudicating A.S. dependent
neglected, as defined in the Arkansas Juvenile Code, on account of being “subjected to
conduct that created a realistic and serious threat of death, permanent or temporary
4
A.S.’s two half-siblings were also taken into custody and were also subject of the
February 25, 2016 petition, but are not parties to this appeal because they are not appellant’s
biological or legal children.
2
Cite as 2017 Ark. App. 655
disfigurement or impairment of a bodily organ” and due to Kirby’s failure to prevent the
abuse or take reasonable steps to prevent the abuse. It noted A.S.’s many injuries and the
opinion of Dr. Karen Farst that A.S.’s injuries were not accidental, but inflicted. Kirby’s
explanation for A.S.’s injuries were “not plausible” for the type of injuries described;
therefore, the circuit court did not find her explanation credible. The goal of the case was
reunification with a concurrent goal of relative placement. Appellant was not present at this
hearing, nor was he present at the July 18, 2016 hearing from which the circuit court’s
August 8, 2016 review order came. The goal of the case remained the same.
DHS filed a petition to terminate appellant’s parental rights to A.S. on October 20,
2016, asserting that termination was in A.S.’s best interest. It cited as grounds in support of
the petition (1) that a court found that the juvenile is dependent-neglected as a result of
neglect or abuse that could endanger the life of the child perpetrated by the juvenile’s parent
or parents or stepparent or stepparents where appellant was present at the time of A.S.’s
injuries, 5 (2) that other factors arose subsequent to the petition where appellant “[had] not
complied with any” of the court’s order and asserting that his “lack of interest” was a “clear
indication” of his capacity or indifference to remedying the issues that caused A.S.’s
removal, 6 and (3) subjection of the child to aggravated circumstances where appellant and
Kirby had “refused to be truthful regarding how [A.S.] sustained his injuries” and both had
been arrested and faced criminal charges against them for the abuse of A.S. given that both
5
See Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a) (Repl. 2015).
6
See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
3
Cite as 2017 Ark. App. 655
were “at all times the persons responsible for the care, safety and welfare” of A.S. 7 With
regard to the last ground, DHS requested a finding that there was little likelihood that
services to the family would result in successful reunification.
A hearing on DHS’s petition was held on December 19, 2016; appellant was present
and testified. The circuit court entered its order terminating appellant’s parental rights to
A.S. on April 3, 2017. 8 The order detailed testimony from Dr. Farst, which it found credible
and which culminated in her opinion that “there could be no explanation for the injuries
of [A.S.] other than child abuse.” It noted testimony from Kirby that she and appellant were
the “primary caregivers and were not away from the juvenile for any significant periods of
time since his birth” and “that she would leave only to take her children back and forth to
school but Mr. Snow would still be at the home during this time with [A.S.]” It noted
testimony from appellant that “he shared the load of care for the children with the mother
each watching the children for one-half the time” and that “the children were never out of
his sight.” Appellant could not explain A.S.’s brain bleed or broken clavicle, only “the injury
from the seatbelt.” It found neither parent credible and noted Dr. Farst’s testimony that
“based on Ms. Kirby and Mr. Snow being the only caregivers for the child since birth one
of the two of them caused the injuries and knows what happened to [A.S.]” It found that
appellant and Kirby’s failure to provide any plausible explanation of A.S.’s injuries, given
7
See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A).
8
There are two file stamps on this document. One states “FILED BY THE COURT
st
this 31 day of March, 2017 By:” with an undecipherable signature designated as that of the
circuit judge. The other states “Filed 3:45 pm Baxter County, Arkansas APR 03, 2017,
Candy J. Reese, Clerk by D.C.”
4
Cite as 2017 Ark. App. 655
that medical testimony and records directly contradicted his explanation, “[was] a barrier to
reunification efforts necessary to protect the health safety and welfare of the juvenile upon
return to the home of the parents.”
Regarding appellant specifically6, the circuit court found as follows therein:
Mr. Snow, the father of [A.S.], was resistant to participating in services to reunify
until he was adjudicated the legal father in August of 2016, following the completion
of paternity testing. Mr. Snow has been in minimal compliance in this matter. In
August of 2016, he started attending visits, therefore, missing the first six months of
the juvenile’s life. He only visited one time prior to August of 2016. He has housing
at the present time in that he lives with the mother and his wife, Ms. Kirby. Mr.
Snow has employment, but does not have a vehicle, is still not engaged in mental
health counseling, has not completed a psychological evaluation, has not completed
parenting or anger management, still continues to have supervised sight and sound
visitation at the Department of Human Services, and he has pending criminal charges
related to this case for Battering in the First Degree, a Class Y Felony, and
Endangering the Welfare of a Minor in the First Degree, a Class D Felony.
The circuit court found that DHS had proven all three asserted grounds, that there was little
likelihood that services would result in successful reunification, and that termination of
appellant’s parental rights was in A.S.’s best interest. In its best-interest findings, it specifically
found potential harm in that it would be “illogical to expect the caregivers who severely
injured the child and failed to take steps to protect the child and who continue to deny their
role or the role of their child’s abuser to now protect the child from harm or from
themselves.” It found that A.S. was adoptable as his present foster home had been involved
with his medical and developmental care since he had come into care and had indicated a
desire to adopt A.S. This timely appeal followed.
In compliance with Linker-Flores and Rule 6-9(i), counsel ordered the entire record
and found that, after a conscientious review of the record, there are no issues of arguable
merit for appeal. Counsel’s brief adequately covered the sufficiency of the evidence in
5
Cite as 2017 Ark. App. 655
support of termination of appellant’s parental rights and all other adverse rulings. After
carefully examining the brief, as presented to us, we conclude that the appeal is wholly
without merit. Accordingly, we affirm the termination of appellant’s parental rights and
grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
ABRAMSON and MURPHY, JJ., agree.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
One brief only.
6