Davis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 275 ( 2017 )

Cite as 2017 Ark. App. 275ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-17-32
Opinion Delivered May 3, 2017
STEPHANY D. DAVIS AND DANIEL APPEAL FROM THE PULASKI
LEE BROWN COUNTY CIRCUIT COURT,
APPELLANTS ELEVENTH DIVISION
V. [NO. 60JV-15-949]
ARKANSAS DEPARTMENT OF HONORABLE PATRICIA JAMES,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED; MOTIONS TO WITHDRAW
GRANTED
DAVID M. GLOVER, Judge
Stephany Davis and Daniel Brown 1 appealed separately from the termination of their
parental rights to two minor children, A.B. (DOB 8-24-2011) and D.B. (DOB 5-12-2015).
Stephany has another child, D.A.B. (DOB 5-7-2008), who is in the custody of Stephany’s
mother and is not part of this case. Stephany’s and Daniel’s attorneys have filed no-merit
briefs and motions to withdraw pursuant to Linker-Flores v. Arkansas Department of Human
Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6-9 of the Rules of the Arkansas
Supreme Court and Court of Appeals, setting forth the adverse rulings, explaining why each
ruling would not support a meritorious argument for reversal, and concluding that an appeal
1
As noted by the trial court in the termination order, “Mr. Brown never completed
DNA testing in this matter. However, he and mother cohabited before and at the time of
removal of the children. He is listed in the Putative Father Registry regarding both children,
and he is named on D.B.’s birth certificate. Therefore, this Court is treating him as though
parental rights have attached to both children.”
Cite as 2017 Ark. App. 275in this case would be wholly without merit. The clerk of our court sent copies of the
pertinent briefs and motions to withdraw to Stephany and Daniel, informing them of their
right to file pro se points for reversal pursuant to Rule 6-9(i)(3) of the Rules of the Arkansas
Supreme Court and Court of Appeals. Neither one filed points. We affirm the orders
terminating the parental rights of Stephany and Daniel, and we grant their attorneys’
motions to be relieved as counsel.
A petition for ex parte emergency custody was filed on July 2, 2015. The supporting
affidavit explained that the Arkansas Department of Human Services (DHS) had earlier
received a report of inadequate supervision in May 2015 based on Stephany’s positive test
results for opiates and morphine and her child, D.B., being in the hospital because of severe
morphine withdrawal. The hospital also reported concerns about the parents not visiting
the child, which continued, and when the parents did visit, they exhibited “sporadic
behavior,” raising concerns of drug use. When the family-service worker tried to contact
Stephany and Daniel at Daniel’s parents’ house (where Stephany and Daniel were living),
the grandparents expressed concern of renewed drug use. On June 30, 2015, DHS exercised
a seventy-two-hour hold on the two children. A.B. was placed in a foster home, and D.B.
remained in the hospital. The affidavit also noted a history of unsubstantiated findings
concerning this family.
On July 8, 2015, the trial court entered its probable-cause order based on the parties’
stipulations and ordered services, noting that DHS had not made reasonable efforts to
prevent removal of the children. On August 7, 2015, the paternal grandparents filed a
motion to intervene, asserting that their son, Daniel, had never been married to Stephany,
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Cite as 2017 Ark. App. 275but that he had acknowledged paternity through the Putative Father Registry. They further
stated A.B. had been under their physical care since her birth and sought appointment as
guardians of both children. The trial court denied the motion on August 27, 2015,
explaining that all of the requested relief could be accomplished without granting intervenor
status.
The adjudication order was entered on September 2, 2015, with the parents
stipulating to dependency-neglect based on parental unfitness due to drug use and the trial
court finding the same. The trial court found that DHS had made reasonable efforts and set
reunification as the goal of the case.
On October 21, 2015, the trial court entered an order relieving the court-appointed
counsel for Stephany, finding the parents were “playing games” and not providing complete
financial information as ordered.
On December 9, 2015, the trial court entered a review order, finding the parents
were not in compliance, setting concurrent goals of reunification and adoption, suspending
Daniel’s visitation, and finding that, “[b]ased on the information in the psychological
evaluation, [Daniel’s] parents are not considered for placement, nor are his aunt and uncle.”
A contempt order against Daniel was also entered on December 9, 2015, arising from events
that took place during the review hearing when Daniel “was given a chance to settle down
– he did not, but escalated & became hostile & disruptive to the Court.” He was ordered
to spend three days in jail.
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Cite as 2017 Ark. App. 275On June 1, 2016, the trial court entered a permanency-planning order. The trial
court found Stephany was “barely” in compliance and Daniel was not in compliance. The
goal of the case was changed to termination and adoption.
On July 19, 2016, DHS filed a petition for termination of parental rights. In an
August 1, 2016 status-report order, the trial court noted DHS had not been able to obtain
personal service on the parents and “preliminarily appointed” counsel for each parent.
Following the termination hearing, the trial court entered its termination order on October
21, 2016, and specifically noted Stephany and Daniel were present at the hearing with
counsel and no service issues were raised. The order also found the Indian Child Welfare
Act (ICWA) did not apply because the father’s application, completed two days before the
hearing, was not adequate; the three alleged statutory grounds for termination had been
proved ((1) twelve months/failure to remedy, (2) subsequent factors, and (3) aggravated
circumstances); and it was in the children’s best interests to terminate, finding they were
adoptable and that continuing contact with either parent “would result in harm to the
children.” The parents’ separate notices of appeal followed.
We review cases terminating parental rights de novo. Ford v. Arkansas Dep’t of Human
Servs., 2017 Ark. App. 211. At least one statutory ground for termination must be proved
by clear and convincing evidence, and in addition, it must be established that it is in the
children’s best interest to terminate parental rights. 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. Our inquiry on appeal is whether the trial court’s finding that
the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A
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Cite as 2017 Ark. App. 275finding 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 dependency-neglect cases, if, after studying the record and researching the law,
appellant’s counsel determines the appellant has no meritorious basis for appeal then counsel
may file a no-merit petition and move to withdraw. Poss v. Arkansas Dep’t. of Human Servs.,
2014 Ark. App. 514, 443 S.W.3d 594. The petition must include an argument section that
lists all adverse rulings the parent received at the circuit court level and explain why each
adverse ruling is not a meritorious ground for reversal. Id. The petition must also include an
abstract and addendum containing all rulings adverse to the appealing parent that were made
during the hearing from which the order on appeal arose. Id. Stephany’s and Daniel’s
counsel have each determined there are no meritorious bases for appeals in this case. We
agree.
Stephany
Stephany’s counsel explains she made no objections during the termination hearing,
so the primary adverse ruling is the trial court’s termination of Stephany’s parental rights.
She further explains why a challenge to the sufficiency of the evidence supporting the
termination would not provide a meritorious argument for reversal.
The trial court found DHS had proved the three statutory grounds for termination
alleged in its petition: 1) twelve-month/failure to remedy, 2) subsequent factors, and 3)
aggravated circumstances. Aggravated circumstances include a situation in which the trial
court determines there is little likelihood that services to the family would result in successful
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Cite as 2017 Ark. App. 275reunification. Counsel explains why this ground for termination would not provide a
meritorious basis for reversal, and our review of the record convinces us she is correct.
This case originated when DHS received a hotline call reporting Stephany had tested
positive for benzos and opiates, and her newborn child, D.B., had tested positive for opiates
and morphine and was experiencing withdrawal from the morphine. When efforts to handle
the matter as a protective-services case failed for lack of parental compliance, D.B. and A.B.
were removed from the parents’ custody on June 30, 2015. Both Stephany and Daniel
stipulated to dependency-neglect based on parental unfitness and drug use (positive for
opiates) at the adjudication hearing. The DHS supervisor further testified that the parents’
lack of compliance throughout the course of the case had prevented any trial placements for
the children. She listed the services that had been offered to the parents during the course
of the case, including psychological evaluations, parenting classes, transportation, drug and
alcohol assessment, random drug screens, inpatient drug treatment, referral to the Child
Study Center for counseling; and to the children, including a PACE evaluation, medical
services, counseling, day care, transportation, foster homes, caseworkers, and board
payment.
With respect to Stephany specifically, the supervisor testified Stephany had been
cooperative with DHS at times; she completed her psychological evaluation; she went to
the Child Study Center and participated in the intake with A.B., but that service was
discontinued because the parents were not visiting. She also testified Stephany completed
her drug-and-alcohol assessment, was ordered into inpatient treatment, went there on
September 21 but left on September 28, 2015, because Daniel thought she was cheating on
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Cite as 2017 Ark. App. 275him; she re-entered on October 19 but was discharged on October 29 because she tested
positive for methamphetamine; she next went to drug treatment at Wilbur D. Mills on
February 24, 2016, completed the treatment on March 22, 2016, and also had mental-health
counseling. She said the last time Stephany visited with the children was August 4, 2015,
and A.B. was upset by Stephany not showing up for visits. DHS drug screens for Stephany
showed positive test results were obtained on 7/2/2015, 9/1/2015, 9/2/2015, 9/11/2015,
10/9/2015, 10/29/2015, 2/24/2016; the last time she submitted to a drug screen at DHS
was in April 2016; and she had acknowledged using heroin; and family members had
reported seeing needle marks on her arm.
The DHS supervisor also testified DHS was not sure about the stability of housing;
the parents’ relationship is very volatile, and Stephany had admitted to her that Daniel had
been abusive; and the parents have a chaotic lifestyle and are not able to provide the stability
the children need. When the trial court asked what the parents had done since the last
hearing on June 1, 2016, to try to avoid having a termination hearing, she responded she
had not gotten anything from the parents; she had reached out to them first in hope they
would take the responsibility as parents to make contact with her so things could be taken
care of; she was not going to chase them down because by that point, it was time for them
to chase her down; and they had the contact information but they never made an effort to
contact DHS.
In short, Stephany was never fully compliant with the case plan. Her efforts to
remedy her drug and mental-health problems so she could reunite with her children were
sporadic and halfhearted, as demonstrated by her failure to maintain consistent contact with
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Cite as 2017 Ark. App. 275DHS, her failure to undergo therapy for herself and to attend counseling with A.B., and her
failure to submit to random drug screening so she could visit her children. She had not
visited the children since August 2015; she did not submit sign-in sheets from AA/NA
meetings; and her relationship with Daniel was admittedly toxic, but her attempt to live
independently from him was short-lived. After fifteen months of services, the trial court’s
conclusion that there was little likelihood additional services would result in successful
reunification was not clearly erroneous; therefore, on the record before us, there is no
meritorious basis for concluding the trial court clearly erred in finding DHS had proved the
statutory ground of “aggravated circumstances.” Because the establishment of one statutory
ground for termination is sufficient, it is unnecessary to address the other two grounds also
found by the trial court. Ford, supra.
In addition to finding a statutory ground for termination, an order terminating
parental rights must also be based on clear and convincing evidence that the termination is
in the children’s best interest. Id. When making a best-interest determination, the trial court
must consider the likelihood the children will be adopted and the potential harm they would
face if returned to the parents. Id.
Here, the adoption specialist testified there were no unusual factors in this case that
would make adoption difficult and that in her opinion these children were adoptable. With
respect to potential harm, the same facts supporting the aggravated-circumstances ground
for termination support the trial court’s conclusion that return of the children to Stephany
would result in harm to them. Consequently, the trial court’s best-interest finding provides
no meritorious basis for reversal.
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Cite as 2017 Ark. App. 275In an abundance of caution, Stephany’s counsel also addresses the following rulings,
which provide no basis for reversal:
1) The entry of the termination order effectively denied Stephany’s request for more
time to reunite with the children, which was made at the conclusion of the termination
hearing. For all of the reasons previously discussed, the denial of this request for more time
does not provide a meritorious basis for reversal.
2) The trial court’s finding that ICWA did not apply in this case. This issue will be
discussed with respect to Daniel, but it provides no meritorious basis for reversal with respect
to either parent.
3) The trial court’s initial finding that DHS failed to provide reasonable efforts to
prevent the removal of the children from Stephany and Daniel. This finding was made at
the beginning of the case and related only to the removal of the children—not efforts to
reunite the family; in all subsequent orders, the trial court found that DHS made reasonable
efforts; and no argument was ever made below to preserve or develop a position that this
finding constituted reversible error or that DHS should have done more to help the parents.
It provides no meritorious basis for reversal with respect to either parent.
4) The trial court’s order relieving Stephany’s court-appointed counsel after the
adjudication hearing. Both Stephany and Daniel were represented by court-appointed
counsel at the termination hearing, and no arguments were ever raised below concerning
lack of representation. Consequently, an argument based on lack of representation would
not be properly preserved and could not serve as a meritorious basis for reversal.
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Cite as 2017 Ark. App. 2755) Relative placement. As explained by counsel, DHS considered relatives during the
course of this case, but found that placement with them was not acceptable; the denial of
the paternal grandparents’ request to intervene to seek guardianship was not appealed; and
no arguments regarding relative placement were raised at the termination hearing. Any
argument regarding relative placement was therefore not properly preserved and cannot
provide a meritorious basis for reversal.
Daniel
All of the previously recounted facts and discussions that also pertain to Daniel are
incorporated herein by reference. As with Stephany, the primary adverse ruling concerning
Daniel was the termination of his parental rights.
The trial court found DHS had proved the three statutory grounds for termination
alleged in its petition for terminating Daniel’s parental rights: 1) twelve-month/failure to
remedy, 2) subsequent factors, and 3) aggravated circumstances. As previously discussed,
aggravated circumstances include a situation in which the trial court determines there is little
likelihood services to the family would result in successful reunification. Daniel’s counsel
explains why this ground for termination would not provide a meritorious basis for reversal,
and as with Stephany, our review of the record convinces us he is correct.
At the termination hearing, the DHS supervisor testified with respect to Daniel
specifically that at times he was cooperative with DHS, and he had completed his
psychological evaluation (even though he missed the first one), the Child Study Center
intake, parenting classes, and a drug-and-alcohol assessment. However, she also testified he
had not submitted to a DNA test and had not provided a copy of the acknowledgment of
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Cite as 2017 Ark. App. 275paternity; there was no proof he completed outpatient treatment; when inpatient treatment
was recommended on September 18, 2015, he finally went to Recovery Centers of Arkansas
on March 2, 2016, but was there only about a week because he had been discharged for
bringing someone else’s prescription medication to the facility; to her knowledge, he had
not completed rehab anywhere; he had not provided AA/NA sign-in sheets or copies of
medication prescriptions; and he had not yet provided her with information regarding
mental-health treatment or counseling that he was allegedly receiving. 2 She stated the last
time Daniel visited with the children was the same as Stephany, August 4, 2015; his visits
were suspended until he submitted to a hair-follicle test, continued drug screens, and
provided proof of attendance in mental-health counseling and medication management, but
he had never supplied her with any of that information. Daniel’s drug screens revealed
positive results on 7/2/2015, 9/1/2015, and 10/9/2015. He tested negative on 1/6/2016
and refused testing on 4/22/2016; in addition, she said there were several times the
caseworker called him in for drug screens but he did not show up for them.
As we previously concluded with respect to Stephany, after fifteen months of
services, the trial court’s conclusion that there was little likelihood additional services would
result in successful reunification was not clearly erroneous. Therefore, on the record before
us, there is no meritorious basis for concluding that the trial court clearly erred in finding
DHS had proved the statutory ground of “aggravated circumstances.” Because the
2
Addressing Daniel’s mental-health issues was critical because he had been diagnosed
with disorders that affected his ability to parent.
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Cite as 2017 Ark. App. 275establishment of one statutory ground for termination is sufficient, it is unnecessary to
address the other two grounds also found by the trial court. Ford, supra.
In addition, the best-interest finding by the trial court provides no meritorious basis
for reversal because DHS established the children are adoptable and, as with Stephany, the
facts supporting the aggravated-circumstances ground for termination with respect to Daniel
also support the trial court’s conclusion that returning the children to Daniel would be
harmful.
In addition to the termination of Daniel’s parental rights, the trial court found ICWA
did not apply. His counsel explains that this finding does not provide a meritorious basis for
reversal, and we agree. Daniel attempted to establish the applicability of ICWA at the outset
of the termination hearing—despite the fact the trial court had earlier determined that
ICWA did not apply in the probable-cause order dated July 8, 2015. The only
documentation he submitted in support of his assertion was a form application for
membership in the Cherokee Nation he filed only a couple of days prior to the hearing. In
order to establish the applicability of ICWA, a child who is the subject of a dependency-
neglect action must be an “Indian child,” which is defined as any unmarried person who is
under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. §
1903(4). Here, there was no evidence A.B. and D.B. satisfied these requirements. It is
undisputed the children are not members of an Indian tribe, and the only evidence submitted
was the form application prepared by Daniel two days before the hearing—there was no
evidence the application had been accepted or that the children were in any other way
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Cite as 2017 Ark. App. 275eligible for membership, and there was not even any evidence Daniel was their biological
father, although he did not dispute that fact. This issue provides no meritorious basis for
reversal.
Finally, Daniel’s counsel also discusses the fact his visitation had been suspended by
the trial court until he provided the court with a negative hair-follicle test and proof of
mental-health treatment, which he never did. Concerned that this issue might possibly be
regarded as an adverse ruling, counsel explains why it would not provide a meritorious basis
for reversal, and we agree. The issue was not raised or developed with the trial court, and
consequently was not preserved for our review. It provides no meritorious basis for reversal
of the termination of Daniel’s parental rights.
While Daniel’s counsel does not address some of the additional issues discussed by
Stephany’s counsel—in particular, the trial court’s early finding that DHS had failed to
provide reasonable efforts in preventing removal of the children, any issues related to lack
of representation, and any issues related to relative placement—we conclude they were
raised by Stephany’s counsel in an abundance of caution, were not preserved for our review,
and provide no meritorious basis for reversal.
Based on our examination of the record and the briefs before us, we grant both
counsels’ motions to withdraw, and we affirm the termination of both Stephany’s and
Daniel’s parental rights.
Affirmed; motions to withdraw granted.
VIRDEN and HARRISON, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Comm’n, for appellant Stephany Davis.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant Daniel Brown.
No response.
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