Dodge v. Ark. Dep't of Human Servs. ( 2014 )

Cite as 2014 Ark. App. 386ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-1097
Opinion Delivered June 18, 2014
AMBER DODGE APPEAL FROM THE JOHNSON
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-2011-87]
V.
HONORABLE KEN COKER, JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and J.H., K.F.,
and T.F., MINORS
APPELLEES AFFIRMED; MOTION TO
WITHDRAW GRANTED
BRANDON J. HARRISON, Judge
Amber Dodge appeals the Johnson County Circuit Court’s decision to terminate
her parental rights to her children J.H., K.F., and T.F. Amber’s counsel has filed a motion
to withdraw and a no-merit brief pursuant to our rules and caselaw, stating that there are
no meritorious grounds to support an appeal. Ark. Sup. Ct. R. 6-9 (2013); Linker-Flores v.
Ark. Dep’t Human Servs., 359 Ark. 131, 194 S.W. 739 (2004). Amber has filed pro se
points for reversal under Ark. Sup. Ct. R. 6-9(i)(3) (2013). We have reviewed her pro se
points, but none give us a legal basis to reverse the circuit court’s decision. We therefore
affirm the court’s decision to terminate Amber’s parental rights to J.H., K.F., and T.F. and
grant counsel’s motion to withdraw.
The Johnson County Circuit Court granted the Arkansas Department of Human
Services (DHS) emergency custody of J.H., K.F., and T.F. on 25 September 2011 after
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Cite as 2014 Ark. App. 386the children’s father figure and J.H.’s biological father, Billy Harris, almost died from a
drug overdose. The court adjudicated the children dependent-neglected in November
2011, “[s]pecifically due to inadequate supervision because of the father’s drug use.” For
over a year and a half the case plan’s goal was to reunite Amber with her children. In
April 2013, however, the court changed the case goal from reunification to adoption.
DHS petitioned to terminate Amber’s parental rights in June 2013. The petition alleged
that terminating Amber’s parental rights was in the children’s best interest and that two
statutory grounds for termination existed under Arkansas Code Annotated sections 9-27-
341(b)(3)(B)(i)(a) & (vii)(a) (Supp. 2011). In its September 2013 termination order the
court found that DHS had proved all the statutory grounds alleged in its petition by clear
and convincing evidence. The court also found that a termination of Amber’s parental
rights was in the children’s best interest, that the children were likely to be adopted, and
that they faced harm if returned to her. Amber appeals the court’s decision.
We review termination of parental rights cases de novo. Cheney v. Ark. Dep’t of
Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272. An order terminating parental rights
must be based upon 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 Human 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
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Cite as 2014 Ark. App. 386conviction that the allegation has been established. Pratt v. Ark. Dep’t of Human 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 petition and move to withdraw. Ark. Sup. Ct. R. 6-9(i)(1)
(2013). The petition 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(i)(1)(A). 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. Ark. Sup. Ct.
R. 6-9(i)(1)(B).
Amber’s attorney maintains here that there would be no merit in challenging the
sufficiency of the statutory grounds or the court’s best-interest finding. We agree.
The circuit court terminated Amber’s rights on two statutory grounds—the “failure
to remedy” ground and the “other factors arising” ground. Amber’s counsel argues that
clear and convincing evidence supports both grounds. We need not address both grounds
because DHS only had to prove one statutory ground to support a termination—and it
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Cite as 2014 Ark. App. 386did so. The statutory ground on which we affirm the termination order is the “other
factors” ground, which states:
[O]ther factors or issues arose subsequent to the filing of the original
petition for dependency-neglect that demonstrate that return of the juvenile
to the custody of the parent is contrary to the juvenile’s health, safety, or
welfare and that, despite the offer of appropriate family services, the parent
has manifested the incapacity or indifference to remedy the subsequent issues
or factors or rehabilitate the parent’s circumstances that prevent return of the
juvenile to the custody of the parent.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2011).
The circuit court decided to terminate Amber’s parental rights on this statutory
ground given Amber’s inability to make safe decisions for her children. Although Amber
had almost fully complied with the case plan, had a job at McDonald’s for over two years,
had a support group at church, and had adequate housing, the court still found that Amber
“simply does not have the ability to protect her children which is a basic requirement for
being a parent, and sadly, she is not going to be able to correct this problem within a
reasonable time.” DHS presented evidence showing that Amber let a man work on her
car despite knowing that he was not a mechanic. That decision was unwise because her
car’s brakes failed and a tire came off the car (at separate times). The court found that
Amber had lied to the caseworker about a man named Doug being at her house as he hid
in her bathroom, poured money into a house with a man named Landon but was kicked
out of it soon after, and failed to call the police when Chad Nichols tried to break into her
house. Perhaps most important was that the evidence at the hearing also showed that
Amber allowed her young daughter to be around Danny LeBlanc, a cousin who had
sexually abused Amber when she was a child, during her visitation times with the child.
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Cite as 2014 Ark. App. 386The court also noted that Amber had allowed LeBlanc to drive her car when he was
drunk, which resulted in a car crash and Amber going to the hospital.
DHS also provided evidence about Amber’s inability to remedy subsequent issues
after the original dependency-neglect petition was filed. Here is some testimony from the
children’s caseworker, Siobhan Ming:
If we [DHS] cannot cover every possible scenario, then there is a
likelihood that something is going to go wrong. That’s why I have to be
specific and tell her bathe the children every day, feed them breakfast, feed
them dinner, feed them, you know, lunch and hope that she can follow
through with it.
Ming also reported that Amber had allowed a virtual stranger to babysit the children
during Amber’s overnight visitation time with them and that Amber could not make good
parenting decisions even when Ming had given Amber very specific written instructions
to follow during visitation with her children.
The bottom line for this appeal is that the circuit court may terminate Amber’s
rights even though she has complied with the case plan. The legal tipping point is
whether the case plan resulted in Amber becoming a parent that could sufficiently care for
her children. Wright v. Ark. Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332(2003). The circuit court’s finding that Amber manifested an indifference to her children,
or lacked capacity to remedy the troublesome conduct that arose during the case’s
administration, is not clearly erroneous and is supported by the evidence.
The court’s finding that it was in the children’s best interest for Amber’s rights to
be terminated is also supported by the evidence. Caseworker Ming testified that the
children were “very likely” to be adopted, and the court credited her testimony. There is
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Cite as 2014 Ark. App. 386also sufficient evidence to support the court’s finding that a substantial risk of harm existed
if the children were returned to Amber’s care. For example, the court specifically credited
Dr. Nancy Powell’s testimony that Amber’s bipolar disorder, personality disorders, and
low-level intelligence required much more therapy before Amber was able to adequately
care for her children on her own. Dr. Powell did not recommend that the children be
returned to Amber’s custody, in part, because Amber “cannot see the ramifications of her
[poor] decisions.” Simply summarized, this case had been ongoing for more than two
years; the court did not have to delay permanency for the children to give Amber more
time to be able to care for the children on her own. Wright, supra. We therefore conclude
that an appeal from the termination decision would be wholly without merit.
To round out our review, we note that the record contains a number of minor
evidentiary objections. In the argument section of her brief, counsel has listed the adverse
rulings and explained why no ruling presents a meritorious ground for reversal. After
reviewing the record and counsel’s brief, we agree with counsel that an appeal from these
rulings would be wholly without merit.
Because Amber’s counsel has complied with the requirements of Linker-Flores and
the rules of this court, we affirm the court’s termination order and grant the motion to
withdraw.
Affirmed; motion to withdraw granted.
WYNNE and WALMSLEY, JJ., agree.
Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.
No response.
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