Robinson v. Arkansas Department of Human Services , 2017 Ark. App. LEXIS 266 ( 2017 )

Cite as 2017 Ark. App. 262
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-1104
Opinion Delivered April 26, 2017
EUGENIA ANN MARIE ROBINSON APPEAL FROM THE UNION
APPELLANT COUNTY CIRCUIT COURT
[NO. 70JV-16-2]
V.
HONORABLE EDWIN KEATON,
JUDGE
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILDREN AFFIRMED; MOTION TO
APPELLEES WITHDRAW GRANTED
LARRY D. VAUGHT, Judge
Appellant Eugenia Robinson appeals the September 20, 2016 order of the Union
County Circuit Court terminating her parental rights to her two children, D.R. and J.R., ages
two and a half and ten months, respectively. 1 Pursuant to Linker-Flores v. Arkansas Department
of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-
9(i) (2016), Eugenia’s counsel has filed a no-merit brief and a motion to withdraw, alleging
that there are no meritorious grounds for appeal. 2 After a full examination under the proper
standards, we hold that counsel provided a compliant no-merit brief demonstrating that an
1The order also terminated the parental rights of Cantobie Robinson, the father of D.R.
and J.R. Cantobie is not a party to this appeal.
2As provided in Arkansas Supreme Court Rule 6-9(i)(3), the clerk of our court
attempted twice to mail Eugenia at her last known address a copy of her attorney’s brief and
motion and a letter advising her of her right to file pro se points. The first mailing was returned
by the postal service marked “Unclaimed/Max Hold Time Expired,” and the second mailing
was returned marked “Return to Sender-Unable to Forward.” Thus, Eugenia did not file pro
se points for reversal. The State elected not to file a brief with our court.
Cite as 2017 Ark. App. 262
appeal would be wholly without merit and that counsel’s motion to be relieved should be
granted.
The Department of Human Services (“DHS”) removed D.R. from the custody of her
father, Cantobie Robinson, on December 29, 2015, after learning that Cantobie went to the
local DHS office with D.R. and advised that he did not have housing or food for her. He
advised that they had been spending the night at the Salvation Army for the past ten days;
however, they were not permitted to stay there during the day. He reported that he had
nowhere to keep D.R. during the day. Cantobie tested positive for marijuana. He also reported
that Eugenia, who was three months pregnant, had left him and D.R. and was living with Mark
Eutsey. DHS also learned that Eugenia and Cantobie’s parental rights to A.R., an older sibling
of D.R.’s, were involuntarily terminated in April 2014 based on the grounds of abandonment
and aggravated circumstances along with a finding that termination was in A.R.’s best interest.
D.R. was adjudicated dependent-neglected on February 29, 2016, due to Eugenia and
Cantobie’s lack of suitable housing and their lack of a plan to secure suitable housing. The
adjudication order also provided that both Eugenia and Cantobie tested positive for THC.
The court set a goal of reunification and ordered the Robinsons to follow the case plan, obey
all court orders, and cooperate with DHS; obtain and maintain stable, clean, adequate, and
suitable housing and keep all utilities on; obtain and maintain stable employment or otherwise
provide adequate income to support D.R.; complete parenting classes; submit to random drug
screening and test negative; undergo a psychological evaluation; complete a drug assessment
and follow the recommendations; not use or possess any illegal drugs; and attend and
2
Cite as 2017 Ark. App. 262
participate in individual counseling. DHS had no further contact with Cantobie after February
29, 2016.
On June 21, 2016, Eugenia gave birth to J.R. The following day, DHS removed J.R.
from Eugenia’s custody after learning that Eugenia was still living with Eutsey, who was not
J.R.’s father and who would not permit DHS to enter his home for DHS visits in connection
with D.R.’s case. J.R. was adjudicated dependent-neglected on August 1, 2016, due to
Eugenia’s lack of suitable housing at J.R.’s birth and Cantobie’s lack of contact with DHS since
February 2016. The Robinsons were ordered to follow the same case plan established for D.R.
DHS filed a petition to terminate Eugenia and Cantobie’s parental rights on August 1,
2016. DHS alleged that termination was in the children’s best interest, and the grounds alleged
against Eugenia were: (1) Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A),
(B)(i) (Repl. 2016), which allows for termination if the parent has subjected the juveniles to
aggravated circumstances where a judge has made the determination that there is little
likelihood that services to the family will result in successful reunification; and (2) Arkansas
Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(4), which allows for termination if the parent
has previously had parental rights involuntarily terminated as to a sibling of the juveniles.
Following a termination hearing, the circuit court found that the statutory grounds
DHS alleged against Eugenia had been proved and that it was in the children’s best interest to
terminate parental rights, considering the likelihood that they would be adopted and the
potential harm caused by returning them to Eugenia’s custody. The circuit court entered its
order granting the petition to terminate parental rights on September 20, 2016. This no-merit
appeal followed.
3
Cite as 2017 Ark. App. 262
In compliance with Linker-Flores and Rule 6-9(i), Eugenia’s counsel has examined the
record for adverse rulings and has adequately discussed why there is no arguable merit to an
appeal of the decision to terminate Eugenia’s parental rights, noting that there were no other
adverse rulings or evidentiary objections. We agree that an appeal from the termination
decision would be wholly without merit.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A), an order terminating
parental rights must also be based on a finding that termination is in the child’s best interest,
which includes consideration of the likelihood that the juvenile will be adopted and the
potential harm caused by returning custody of the child to the parent. Vasquez v. Ark. Dep’t of
Human Servs., 2009 Ark. App. 575, at 5–6, 337 S.W.3d 552, 556. The harm referred to in the
termination statute is “potential” harm; the circuit court is not required to find that actual
harm would result or to affirmatively identify a potential harm. Id. at 6, 337 S.W.3d at 556. In
addition, the proof must establish at least one of several statutory grounds. Ark. Code Ann. §
9-27-341(b)(3)(B).
Here, DHS presented evidence that the children are likely to be adopted. Crystal
Williams, the DHS adoption specialist, testified that the children’s foster parents were
interested in adopting them and that more than 389 families were identified as interested in
adopting a sibling group of two children matching D.R.’s and J.R.’s characteristics. This court
has held such evidence sufficient to support this element of the best-interest analysis. Davis v.
Ark. Dep’t of Human Servs., 2009 Ark. App. 815, at 10, 370 S.W.3d 283, 288.
The evidence also supports a finding that returning the children to Eugenia presented
a risk of potential harm. DHS supervisor and acting caseworker Mydeana Bridges testified that
4
Cite as 2017 Ark. App. 262
Eugenia tested positive for drugs at the onset of the case and continued to test positive for
drugs. She admitted using marijuana during her pregnancy with J.R. and showed no remorse
for it. The most recent drug test was performed on August 30, 2016—just days before the
termination hearing—and Eugenia was positive for THC. We have held that continued drug
use demonstrates potential harm sufficient to support a best-interest finding in a termination-
of-parental-rights case. Tillman v. Ark. Dep’t of Human Servs., 2015 Ark. App. 119, at 9 (citing
Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7).
Further, Bridges testified that Eugenia failed to obtain and maintain stable housing. In
June 2016, soon after having J.R., Eutsey told Eugenia she had to move out. Eugenia moved
into the home of a friend, but Eugenia was asked to leave that home because she reportedly
stole some of the homeowner’s marijuana. Eugenia reported to Bridges thereafter that she had
been living in an abandoned house without the owner’s permission. Eugenia informed DHS
that she had to “time her entry and leaving of the home so that the owners [would not] see
her.” 3 Bridges testified that Eugenia was living in the abandoned home at the time of the
termination hearing and that she did not believe Eugenia would be able to secure stable
housing within the next four months. Potential harm must be viewed in a forward-looking
manner and in broad terms, including the harm the child suffers from the lack of stability of
a permanent home. Wallace v. Ark. Dep’t of Human Servs., 2015 Ark. App. 481, at 12, 470 S.W.3d
286, 293. Eugenia has been, and continues to be, unable to provide her children with a stable
home—a child’s basic need.
3Eugenia was present at the termination hearing but did not testify.
5
Cite as 2017 Ark. App. 262
There are other factors to support the circuit court’s potential-harm finding. Eugenia
remained married to Cantobie despite knowing that he used illegal drugs and suffered from
mental-health problems and despite her claims that he emotionally and physically abused her.
Eugenia also suffers from bipolar disorder, yet she reported that she had not taken her
medication for the disease since 2013. Eugenia’s drug use and overall instability demonstrated
the risk of potential harm to D.R. and J.R. if they were returned to her. Accordingly, we hold
that there is no merit to the appeal of the circuit court’s best-interest finding.
For grounds, the circuit court found that the children had been subjected to aggravated
circumstances and that Eugenia’s parental rights to a sibling of D.R. and J.R.’s had been
involuntarily terminated. Only one ground is necessary for termination to occur. Draper v. Ark.
Dep’t of Human Servs., 2012 Ark. App. 112, at 15, 389 S.W.3d 58, 66. Here, there is no merit to
a challenge to the circuit court’s conclusion that Eugenia’s parental rights to D.R.’s and J.R.’s
sibling had been involuntarily terminated. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4). DHS
introduced into evidence, without objection, the 2014 termination order concerning D.R.’s
and J.R.’s older sibling, A.R.
After carefully examining the record and the no-merit brief, we hold that Eugenia’s
counsel has complied with the requirements for a no-merit parental-rights-termination appeal
and that the appeal is wholly without merit. We therefore affirm the order terminating
Eugenia’s parental rights to D.R. and J.R. and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
GRUBER, C.J., and GLADWIN, J., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
No response.
6