King v. Ark. Dep't of Human Servs. ( 2016 )

Cite as 2016 Ark. App. 368
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-288
Opinion Delivered AUGUST 31, 2016
HAILEY KING APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
APPELLANT [NO. J-2015-398]
V.
HONORABLE THOMAS E. SMITH, JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR AFFIRMED; MOTION TO WITHDRAW
CHILD GRANTED
APPELLEES
DAVID M. GLOVER, Judge
Hailey King appeals from the December 29, 2015 order terminating her parental
rights to D.K. (d.o.b. 7-15-2014). Her counsel has filed a brief and motion to withdraw
pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d
739 (2004), contending there are no meritorious issues that could arguably support the
appeal. The clerk of our court attempted to notify King of her counsel’s actions by sending
her a packet containing the motion, the brief, and a letter informing King she had the right
to file pro se points for reversal. The packet was sent to King’s last known address via
certified mail, but attempts to deliver the packet were not successful. No pro se points have
been filed.
Counsel’s brief contains an abstract and addendum of the trial-court proceedings,
discusses the adverse rulings and the evidence supporting the termination of King’s parental
Cite as 2016 Ark. App. 368
rights, and explains why there is no meritorious ground for reversal. We have reviewed the
brief and the record in this case and agree there is no basis upon which to advance a
meritorious argument for reversal.
We review termination-of-parental-rights cases de novo. Hune v. Arkansas Dep’t of
Human Servs., 2010 Ark. App. 543. Termination of parental rights is an extreme remedy
and in derogation of the natural rights of parents, but parental rights will not be enforced to
the detriment or destruction of the health and well-being of the child. Id. Grounds for
termination of parental rights must be proven by clear and convincing evidence. 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. The appellate inquiry is whether
the trial court’s finding that the disputed fact was proven by clear and convincing evidence
is 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. The goal of Arkansas Code Annotated section
9-27-341 is to provide permanency in a minor child’s life in circumstances in which
returning the child to the family home is contrary to the minor’s health, safety, or welfare,
and the evidence demonstrates that a return to the home cannot be accomplished in a
reasonable period of time as viewed from the minor child’s perspective. Id.; Ark. Code Ann.
§ 9-27-341(a)(3) (Repl. 2015). Parental rights may be terminated if clear and convincing
evidence shows (1) that it is in the child’s best interest, and (2) that statutory grounds have
been proved. Hune, supra.
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Cite as 2016 Ark. App. 368
Here, Hailey and her husband, Kelby, were arrested on June 25, 2015. They had
attempted to use a forged prescription to obtain drugs and were fleeing from a pharmacy
when they were arrested. They were also under the influence of drugs. The Arkansas
Department of Human Services (DHS) exercised a seventy-two-hour hold on D.K., who
was eleven months old at the time. At the time of these events, Hailey and Kelby were
homeless. The probable-cause hearing was held on June 30, 2015; Hailey did not appear at
the hearing; and the trial court found probable cause to remove D.K. from the parents’
custody.
D.K. was adjudicated dependent-neglected following a hearing on September 22,
2015, when the trial court found neglect and parental unfitness. The case goal was set as
reunification, and a case plan was established. DHS filed a petition for termination on
October 9, 2015. The petition alleged several grounds, including aggravated circumstances
based on assertions Hailey and Kelby had previously lost custody of another child in
Oklahoma, and they had made no efforts to adhere to the case plan in the four months since
D.K. had been out of their custody.
The termination hearing was held on December 22, 2015, approximately six months
after the case began. DHS presented evidence Hailey had not addressed her drug problems,
had not obtained stable housing, income, or transportation, and had attended only seven
visits with D.K., which were not meaningful. Hailey did not dispute most of the evidence,
other than to testify that she was living with her father-in-law and Kelby in Oklahoma,
earning $600 a month for taking care of her father-in-law. She acknowledged, however,
that the meth lab resulting in her loss of custody of another child had been located in her
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Cite as 2016 Ark. App. 368
father-in-law’s house. She also acknowledged not visiting with D.K. because of continued
drug use and lack of housing and transportation.
The paternal grandmother testified she wanted to adopt D.K.; that she had raised
D.K.’s brother, K.K., from the time Oklahoma officials had removed him from Hailey and
Kelby when he was five months old; and that she did not believe Hailey and her son, Kelby,
had made any progress in their stability.
Following the hearing, the trial court granted the petition to terminate, explaining
Hailey had been addicted to drugs for almost half her life, she continued to live with Kelby
(who wasn’t even trying to prevent termination of their parental rights), and both Hailey
and Kelby continued to have issues with drugs that they had not made any effort to correct.
The termination order from which Hailey brought this appeal found two grounds for
termination had been established with clear and convincing evidence: 1) that Hailey had
subjected D.K. to “aggravated circumstances, namely that there is little likelihood that
service to the family will result in reunification”; and 2) that “other factors or issues arose
subsequent to the filing of the original petition for dependency-neglect that demonstrate
that placement of the juvenile in the custody of the parents is contrary to the juvenile’s
health, safety or welfare and that despite the offer of appropriate family services, the parents
has/have manifested the incapacity or indifference to remedy the subsequent issues or factors
or rehabilitate the parents’ circumstances which prevent the placement of the juvenile in
the custody of the parents.” In addition, the trial court concluded termination of Hailey’s
parental rights was in D.K.’s best interest, finding D.K. was adoptable, and D.K. would be
at risk of potential harm if she were returned to Hailey.
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Cite as 2016 Ark. App. 368
The ultimate adverse ruling was the termination itself. Counsel explains why
challenging the termination would not provide a meritorious basis for reversal. We agree.
One ground is sufficient to support the termination of parental rights. Geatches v.
Arkansas Dep’t of Human Servs., 2016 Ark. App. 344, ____ S.W.3d ____. The trial court
found DHS had established two statutory grounds. One of the grounds found by the trial
court was that Hailey had subjected D.K. to aggravated circumstances. Aggravated
circumstances means, in pertinent part, “[a] juvenile has been abandoned, chronically
abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has
been or is made by a judge that there is little likelihood that services to the family will result
in successful reunification[.]” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B). Here, the
trial court determined there was little likelihood that services to the family would result in
successful reunification. Hailey had an admitted problem with drug addiction; she refused
rehabilitation services offered by DHS; and she would not commit to a time frame within
which she would undergo treatment—despite the fact that she requested additional time.
She also did not exhibit any meaningful efforts toward visitation with D.K. Because we
find no clear error with the trial court’s finding on this ground, it is unnecessary to address
the second ground.
With respect to the trial court’s determination that it was in D.K.’s best interest to
terminate Hailey’s parental rights, there was testimony from the case worker that there was
a substantial likelihood that D.K. would be adopted, and Hailey’s continued drug use,
instability in her life, and lack of participation in the case plan demonstrated the risk of
potential harm.
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All but one of the remaining adverse rulings involved evidentiary issues. Counsel has
adequately explained why an attempt to reverse on one of those bases would be wholly
without merit.
The remaining adverse ruling was the denial of Hailey’s motion for a continuance,
which was based on her assertion D.K. is an Indian child within the meaning of the Indian
Child Welfare Act, entitling the Kiowa Tribe to notice of the proceedings. As explained in
counsel’s brief, an Indian child is defined as “any unmarried person who is under age
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[.]” (Emphasis
added.) 25 U.S.C. section 1903(4). Counsel further explains D.K.’s paternal grandmother,
who was an enrolled member of the Kiowa tribe, testified that D.K.’s father, her son, was
not eligible for membership in the Kiowa tribe because she was the last generation to satisfy
the tribal requirement of at least one-quarter blood. Thus, her son could not be a member
of the tribe. She further explained that her son was not enrolled in the Cherokee tribe either,
even though he was allowed to receive medical treatment through the Cherokee Nation
because she is a registered Indian and is his mother. As noted by counsel, “even if the father
were eligible to be enrolled as a Cherokee, that fact is not relevant because the statute
requires that he actually be enrolled in order for D.K. to be considered an Indian child.”
We agree. D.K. is not an Indian child under the Act; consequently, it did not apply.
Therefore, the trial court did not err in denying the motion for continuance because notice
to an Indian tribe was not required.
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Cite as 2016 Ark. App. 368
We are satisfied counsel has complied with the requirements of Linker-Flores, supra,
and the Rules of the Arkansas Supreme Court and Court of Appeals, and none of the adverse
rulings provide a meritorious basis for reversal. We therefore affirm the termination of
Hailey’s parental rights, and we grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
HARRISON and VAUGHT, JJ., agree.
Leah Lanford, Ark. Pub. Defender Comm’n, for appellant,
No response.
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