NICHOLAS ALLEN BURKS, SR. v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child ( 2023 )

Cite as 2023 Ark. App. 94ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-22-530
NICHOLAS ALLEN BURKS, SR. Opinion Delivered February 22, 2023
APPELLANT
APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT
V. [NO. 28JV-20-79]
ARKANSAS DEPARTMENT OF HONORABLE BARBARA HALSEY,
HUMAN SERVICES AND MINOR JUDGE
CHILD
APPELLEES AFFIRMED; MOTION TO
WITHDRAW GRANTED
BART F. VIRDEN, Judge
Counsel for Nicholas Burks, Sr., whose parental rights to Minor Child 1 (MC1) were
terminated by the Greene County Circuit Court, has filed a no-merit brief and a motion to
withdraw. We affirm and grant the motion to withdraw.
I. Factual History
The Greene County Circuit Court terminated the parental rights of Nicholas Burks,
Sr., to his two children, MC1 and Minor Child 2 (MC2). Burks appealed the termination,
and our court affirmed the termination of his parental rights to MC2 but reversed and
remanded as to MC1 because his legal status as MC1’s parent was not established before the
termination of his parental rights. Burks v. Ark. Dep’t Hum. Servs., 2021 Ark. App. 309, 634
S.W.3d 527. On remand, the circuit court held a review hearing on September 29, 2021, at
which Burks was present via Zoom from the Greene County Jail. In an order entered the
same day, the circuit court, relying on MC1’s birth certificate naming Burks as the father,
found that Burks is MC1’s parent and appointed him counsel. At the March 2, 2022,
permanency-planning hearing, a DNA report showing that Burks is MC1’s father was
introduced as evidence of his paternity, and in the subsequent order, the circuit court again
found that Burks is MC1’s parent. The goal of the case remained adoption. On March 7,
the Arkansas Department of Human Services (the Department) filed a petition to terminate
Burks’s parental rights, pleading the following four statutory grounds: twelve months failure
to remedy, subsequent factors, sentenced in a criminal proceeding for a substantial period
of the child’s life, and aggravated circumstances because there was little likelihood that
continued services would result in reunification.
At the June 1 termination hearing, Burks testified that he had been incarcerated in
the Arkansas Department of Correction (ADC) for approximately a year and a half, and his
total sentence was ten years. He had not visited with MC1 since August 2020, and he had
not been able to participate in any services at the ADC because they were ceased due to
COVID-19. Since he became involved with the case in 2021, he had not requested or been
offered any services, but he had participated in the staffings, submitted to a DNA test, and
expressed his desire to participate in services. Burks testified that he would not be able to
provide a home for MC1 that day because he is incarcerated.
Christy Kissee, the Department supervisor assigned to Burks’s case, recommended
that Burks’s parental rights to MC1 be terminated. She testified that contrary to Burks’s
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statement, she had offered services to him since she took the case in October 2021. Kissee
stated that she gave Burks addressed, stamped envelopes so that he could correspond with
the Department and that Burks had sent her a list of relatives he wanted considered for
placement, including his mother, his aunt, and his sister. Kissee testified that Burks’s mother
was not a viable placement because her parole had just ended. Burks’s aunt and his sister did
not express an interest in having MC1 placed with them after their initial contact with the
Department. Burks’s cousin appeared at a hearing to be considered as placement for MC1;
however, she had true findings in previous Department cases, previous foster-care placement
of her child, and a current protective-services case. Kissee clarified that she had not made
referrals for a psychological evaluation or a drug-and-alcohol assessment because Burks was
incarcerated, and his incarceration was a barrier to his participation services such as drug-
and-alcohol assessment, as well as AA/NA meetings, counseling, and parenting classes. His
incarceration also prevented him from being given custody of MC1 that day. Kissee stated
that the causes for the filing of the petition for dependency-neglect included environmental
neglect and illegal drug use, and these causes had not been remedied. Moreover, Kissee
opined that there were no other services that could be provided to Burks to achieve
reunification and recommended terminating Burks’s parental rights. She explained that
MC1 had spent over half her life in foster care and that she needed permanency. MC1 was
placed in foster care with her sibling, and Kissee testified that it was expected that the foster
parents would adopt MC1.
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The court entered the order the same day, granting the Department’s petition to
terminate Burks’s parental rights on each of the four statutory grounds pleaded. The court
found that it was in MC1’s best interest to terminate parental rights, that she is adoptable,
and there was potential harm in returning MC1 to Burks’s custody. Burks timely filed his
notice of appeal.
II. Discussion
Burks’s counsel has filed a no-merit brief pursuant to Linker-Flores v. Arkansas
Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 6-
9(i) (2022), asserting that there are no meritorious issues that could arguably support an
appeal and seeking permission to withdraw as counsel. The clerk of this court mailed a copy
of counsel’s brief and motion to withdraw to Burks, advising him of his right to file pro se
points for reversal pursuant to Ark. Sup. Ct. R. 6-9(i)(3), and Burks has not done so. We
grant counsel’s motion to withdraw and affirm the order terminating Burks’s parental rights.
A circuit court’s order terminating parental rights must be based on findings proved
by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2021); Dinkins v.
Ark. Dep’t of Hum. Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing
evidence is proof that will produce in the fact-finder a firm conviction on the allegation
sought to be established. Dinkins, supra. On appeal, we will not reverse the circuit court’s
ruling unless its findings are 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 determining whether
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a finding is clearly erroneous, an appellate court gives due deference to the opportunity of
the circuit court to assess the witnesses’ credibility. Id. Only one ground is necessary to
terminate parental rights. Lee v. Ark. Dep’t of Hum. Servs., 102 Ark. App. 337, 285 S.W.3d
277 (2008).
In her no-merit brief, counsel first asserts that any appeal of the statutory grounds for
termination would be frivolous. Arkansas Code Annotated § 9-27-341(b)(3)(B)(viii) provides
that termination of parental rights may be based on a finding by clear and convincing
evidence that the parent is sentenced in a criminal proceeding for a period of time that would
constitute a substantial period of the juvenile’s life. Counsel argues that the Department
proved this ground through Burks’s testimony that he had been incarcerated for about a year
and a half, and he was serving a ten-year sentence. MC1, who was four years old at the time
of the termination hearing, had spent more than half her life in foster care and would be
around twelve when Burks was set to be released. It is the prison sentence itself, not the
potential release date, that determines whether this statutory ground is satisfied. Edwards v.
Ark. Dep’t of Hum. Servs., 2016 Ark. App. 37, 480 S.W.3d 215. Counsel correctly states in
the argument portion of her brief that the Department need only prove one ground of
section 9-27-341(b)(3)(B) to support termination; therefore, we affirm the termination of
Burks’s parental rights on this statutory ground. Houseman v. Ark. Dep’t of Hum. Servs., 2016
Ark. App. 227, 491 S.W.3d 153.
Regarding the circuit court’s best-interest finding, counsel has adequately explained
that the circuit court found by clear and convincing evidence that it was in MC1’s best
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interest to terminate parental rights, addressing both the likelihood-of-adoption and
potential-harm prongs. See Ark. Code Ann. § 9-27-341(b)(3)(A). A caseworker’s testimony
that a child is adoptable is sufficient to support an adoptability finding. See Cole v. Ark. Dep’t
of Hum. Servs., 2018 Ark. App, 121, 543 S.W.3d 540. 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; rather, it is the overall evidence that must demonstrate
clearly and convincingly that termination 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).
Counsel notes that Department supervisor Christy Kissee testified that there are no
barriers to MC1’s adoption, and it is expected that her foster family will adopt her. Counsel
also adequately explains that the circuit court’s finding that MC1 would be at risk of
potential harm was based on clear and convincing evidence, noting that though Burks
testified that he had maintained sobriety for a substantial time, he had not been able to
complete a drug-and-alcohol assessment, attend counseling, or attend AA/NA meetings.
Counsel asserts that due to his incarceration and sentence of ten years’ imprisonment in the
ADC, MC1 could not be placed with him on the day of the termination hearing. As stated
above, it is the prison sentence itself, not the potential release date, that determines whether
this statutory ground is satisfied; thus, the circuit court’s potential-harm finding does not
present a basis for meritorious appeal. Edwards, supra.
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Counsel also addresses the adverse rulings, explaining that none constitute a
meritorious ground for appeal. Counsel addresses Burks’s objection regarding whether
Kissee had direct knowledge of the prior cases involving Burks. The court instructed the
Department to lay a foundation for Kissee’s knowledge and did not rule on the objection.
Kissee explained that she had reviewed the case and the records involving the family when it
was assigned to her. Counsel then objected to the same question as hearsay. The objection
was overruled, as was another hearsay objection to Kissee’s statement that services had been
offered to Burks since 2016. Counsel correctly states that Burks had already testified to the
same information, and neither ruling affected the termination of his parental rights.
Last, counsel asked the court to grant Burks more time to complete the case plan.
Counsel asserts that the circuit court did not err in denying this request because not only
were the statutory grounds and best-interest determinations based on clear and convincing
evidence but also because it was not possible for the court to place MC1 with Burks within
a reasonable time from the child’s perspective. We have recognized that a child’s need for
permanency and stability may override a parent’s request for additional time to improve his
or her circumstances. Dozier v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 17, 372 S.W.3d 849.
We agree that the circuit court was presented with ample evidence on which to find
that it was in the child’s best interest for Burks’s rights to be terminated and that statutory
grounds for termination existed; thus, we grant counsel’s motion to withdraw and affirm the
termination of Burks’s parental rights.
Affirmed; motion to withdraw granted.
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HIXSON and MURPHY, JJ., agree.
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.
One brief only.
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