Freeman v. Ark. Dep't of Human Servs. , 2014 Ark. App. 366 ( 2014 )

Cite as 2014 Ark. App. 366
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-148
Opinion Delivered June 4, 2014
JEFF FREEMAN APPEAL FROM THE CRAIGHEAD
APPELLANT COUNTY CIRCUIT COURT,
WESTERN DISTRICT
V. [NO. JV-2013-159]
HONORABLE BARBARA HALSEY,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILD AFFIRMED; MOTION TO
APPELLEES WITHDRAW GRANTED
KENNETH S. HIXSON, Judge
Appellant Jeff Freeman appeals the November 2013 order of the Craighead County
Circuit Court terminating his parental rights to his one-year-old son TF, born in November
2012. Freeman’s attorney has filed a no-merit appeal based on Linker-Flores v. Arkansas
Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004) and Ark. Sup. Ct. R. 6-9
(2013), asserting that there is no issue of arguable merit to an appeal of this termination order.
The attorney also filed a motion seeking permission to be relieved as counsel.
Appellant’s attorney filed a brief that includes a discussion of the sufficiency of the
evidence to support termination of appellant’s parental rights as well as a discussion of adverse
rulings and why there could be no meritorious argument raised on appeal. The clerk of our
court provided notice by mail to Freeman of his attorney’s motion and brief at his last known
Cite as 2014 Ark. App. 366
address in Jonesboro, informing him of his opportunity to file pro se points for reversal for our
consideration. This attempted notification was returned as “undeliverable” by the postal
service. Freeman did not file any such points for our consideration. Neither the Department
of Human Services nor the child’s attorney ad litem filed a brief with our court. After
carefully examining the record and the no-merit brief, we hold that appellant’s counsel has
complied with the requirements for no-merit parental-rights-termination appeals and that the
appeal is wholly without merit. Green v. Ark. Dep’t of Human Servs., 2012 Ark. App. 684, __
S.W.3d __. Accordingly, we affirm the termination order and grant counsel’s motion to be
relieved. Id.
Appellant and the child’s biological mother, Amber Hellums, were not married.1
Appellant resided with Hellums in Jonesboro until mid-December 2012, shortly after their
son’s premature birth at thirty-three weeks. Medical testing at TF’s birth showed that he was
exposed to marijuana during gestation, and he was admitted to the neonatal intensive-care
unit at UAMS due to respiratory distress. TF was not taken into custody at birth. Instead,
a protective-services case was opened by DHS.2
A physical altercation between the two parents in December 2012 necessitated that
appellant acquire his own residence, which he did in January 2013, although he remained in
Jonesboro. The mother, who had legal custody of TF, left the baby with appellant beginning
1
According to appellant, he was still married to another woman, who was the mother
of three of his older children.
2
The mother’s parental rights were also terminated as to TF, but she does not appeal.
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in February 2013. DHS maintained contact and determined that appellant and the mother
had not ensured that TF was receiving immunizations or having appropriate follow-up
medical care.
DHS took emergency custody of TF in April 2013, and TF was adjudicated
dependent-neglected in May 2013. The parents were ordered to cooperate with DHS,
remain drug free, provide proof of any currently prescribed medications, maintain stable and
appropriate housing for their son, maintain stable employment to support their son, submit
to a drug-and-alcohol assessment if a parent tested positive for drugs, attend parenting classes,
and watch “The Clock is Ticking” video, among other things. Appellant was specifically
ordered to resolve all his criminal issues and to submit to a drug-and-alcohol assessment and
follow recommendations.
As a consequence of many positive drug screens, appellant was ordered to submit to
a hair-follicle test and a drug-and-alcohol assessment, which he did not do. Appellant’s visits
with his son were halted in June 2013 after he continued to test positive for illegal drugs, and
he did not take the steps to address those drug problems in order to have his visitation
reinstated. Notably, at one visit, appellant fell asleep and was seen slumped over the child.
A September 2013 report to the court informed the trial judge that appellant did
attend some parenting classes and watched “The Clock is Ticking” video, as well as visit
with his son in the beginning, but appellant did not remain drug free. This remained the
overriding problem throughout this case. He tested positive for benzodiazepines, for which
he failed to provide legitimate prescriptions, and he repeatedly tested positive for cocaine,
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methamphetamine, and marijuana. Appellant’s residence was admittedly unsuitable for a small
child because it was in a state of disrepair. There were construction materials and power tools
on the floor; there was construction material strewn about the exterior of the residence; there
were dirty dishes in the sink, debris scattered through the home, and ashtrays full of cigarettes.
Neither parent appeared at an October 2013 review hearing. Appellant later claimed
that he did not know about this hearing, although his address had not changed. In the order
that followed that hearing, appellant was noted to have failed to remain drug free, failed to
maintain a safe home, failed to maintain stable employment, failed to submit to assessments
scheduled for him or to take advantage of referrals for inpatient treatment, and had been
arrested during the pendency of the case.
DHS filed a petition to terminate appellant’s parental rights to TF in October 2013,
alleging two grounds, abandonment pursuant to Arkansas Code Annotated section 9-27-
341(b)(3)(B)(iv), and “other factors or issues” pursuant to Arkansas Code Annotated section
9-27-341(b)(3)(B)(vii)(a). The petition asserted specifically that appellant had not maintained
contact with DHS, had not visited with TF, had not attended drug-and-alcohol assessments
or a hair-follicle testing, had not resolved all criminal matters, and had not remained drug free.
At the termination hearing conducted in November 2013, testimony from DHS family
service worker Amanda Thompson established that TF was doing very well in his foster-home
placement, the foster family was “very interested in adoption” and had given a letter of intent
to adopt TF, he was on target developmentally for his age, and he was “a very adoptable
child.” She said that follow up medical appointments and tests were being handled by the
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foster parents. Thompson verified that appellant had been incarcerated at times during
the case, and he was noncompliant with drug-and-alcohol and hair-follicle assessment
appointments after consistently testing positive for drugs over the course of this case. She
listed the drug tests as positive for methamphetamine, the active metabolite of marijuana,
cocaine, and benzodiazepines. She stated that appellant expressed interest in inpatient
rehabilitation, but he never followed through with DHS’s referrals until the day prior to the
termination hearing. She added that appellant’s residence remained hazardous and not suitable
for a child.
Appellant testified that he was not in disagreement with Thompson’s testimony, with
one exception. He said he provided proof of a prescription for “benzos” to a prior case
worker. Appellant, a man in his mid-thirties, agreed that he had struggled with drug issues
over the years. He claimed to have entered a six-week inpatient drug-treatment program
the day prior to the termination hearing, offering a letter from that treatment center into
evidence. Appellant said he worked as a contract laborer for a construction company and that
his work schedule varied week to week, but he felt capable of paying off his criminal fines.
He explained that he experienced a problem with cocaine and that he used
methamphetamine around the time he and TF’s mother were in a confrontation in December
2012. Appellant was arrested for being a felon in possession of a firearm and was accused
of battery against the mother. He agreed he had “been in jail a few times” during 2013, but
he could not remember how many times. He thought it was “five or less.” Appellant
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admittedly used methamphetamine three days prior to the termination hearing, before he
entered rehabilitation.
Appellant agreed that the mother of his three older children had halted his visitation.
Appellant claimed that if he had his children, he could kick his drug addiction. He also said
that when he exited rehabilitation, he would find a new place to live that was better for
himself and his children.
The attorney ad litem recommended termination of appellant’s parental rights, noting
that appellant had not visited his son since June 2013 due to persistent positive drug screens
and his failure to address his drug problems. The attorney ad litem stated that appellant’s
inpatient treatment started only one day prior to this hearing and was too late to avoid
termination. Appellant’s attorney offered no closing argument.
The trial court ruled from the bench, terminating appellant’s parental rights, and a
subsequent formal order memorialized those findings. The trial court specifically found that
DHS proved by clear and convincing evidence that it was in TF’s best interest to terminate
parental rights, taking into consideration the likelihood that TF would be adopted and the
potential harm to his health and safety if returned to appellant, and further that DHS had
proved both the grounds it asserted against appellant. This appeal followed.
We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist,
in addition to a finding that it is in the child’s best interest to terminate parental rights; these
must be proved by clear and convincing evidence. M.T. v. Ark. Dep’t of Human Servs., 58
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Ark. App. 302, 952 S.W.2d 177 (1997). 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. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate
inquiry is whether the trial court’s finding that the disputed fact was proved by clear and
convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243,
947 S.W.2d 761 (1997). Credibility determinations are left to the fact finder, here the trial
court. Moiser v. Ark. Dep’t of Human Servs., 95 Ark. App. 32, 233 S.W.3d 172 (2006).
The purpose of the Juvenile Code is to provide permanency and stability in a child’s
life when it is not possible to return the child to the parent in a reasonable period of time, as
viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance
with the case plan is not determinative; the issue is whether the parent has become a stable,
safe parent able to care for his child. Cole v. Ark. Dep’t of Human Servs., 2012 Ark. App. 203,
394 S.W.3d 318; Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1.
A parent’s continuing drug use is evidence of potential harm to a child, and when the drug
use goes unremedied by the parent, it can support termination of parental rights. Long v. Ark.
Dep’t of Human Servs., 369 Ark. 74, 250 S.W.3d 560 (2007); Allen v. Ark. Dep’t of Human
Servs., 2011 Ark. App. 288, 384 S.W.3d 7. A parent’s past behavior is often a good indicator
of future behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, S.W.3d
. When presented as a no-merit appeal, our court must examine the findings to support the
termination and any adverse rulings to determine whether an appeal would be wholly
frivolous.
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Appellant’s attorney has provided our court with a compliant no-merit termination-of-
parental-rights brief, and the attorney sufficiently explains why an appeal would be wholly
without merit. Our examination of the record and brief satisfies us that an appeal of this
termination case would be wholly without merit.
Affirmed; motion to withdraw granted.
PITTMAN and WOOD, JJ., agree.
Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.
No response.
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