Mercado v. Ark. Dep't of Human Servs. , 2017 Ark. App. 495 ( 2017 )

Cite as 2017 Ark. App. 495
ARKANSAS COURT OF APPEALS
DIVISION III
CV-17-251
No.
FRANCESCA MERCADO Opinion Delivered: October 4, 2017
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
ARKANSAS DEPARTMENT OF HUMAN [NO. 66FJV-16-284]
SERVICES AND MINOR CHILD
APPELLEES
HONORABLE JIM D. SPEARS,
JUDGE
AFFFIRMED; MOTION GRANTED
RITA W. GRUBER, Chief Judge
Counsel for Francesca Mercado brings this no-merit appeal from the circuit court’s
December 28, 2016 order terminating Mercado’s parental rights to A.M., who was born on
February 27, 2016. 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), counsel has
filed a no-merit brief setting forth all adverse rulings from the termination hearing and
asserting that there are no issues that would support a meritorious appeal. Counsel has also
filed a motion asking to be relieved. Mercado has filed pro se points. The Arkansas
Department of Human Services (DHS) and the minor child’s counsel have responded to
those pro se points. We grant counsel’s motion to withdraw and affirm the termination
order.
Termination of parental rights is a two-step process requiring a determination that
the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark.
Cite as 2017 Ark. App. 495
Dep’t of Human Servs., 2016 Ark. App. 227, at 2, 491 S.W.3d 153, 155. The first step requires
proof of one or more statutory grounds for termination; the second step requires
consideration of whether termination is in the juvenile’s best interest. Ark. Code Ann. §
9-27-341(b)(3)(B), (A) (Repl. 2015). Each of these requires proof by clear and convincing
evidence, which is the degree of proof that will produce in the fact-finder a firm conviction
regarding the allegation sought to be established. Id.
We review termination-of-parental-rights cases de novo. Norton v. Ark. Dep’t of
Human Servs., 2017 Ark. App. 285, at 2. Our inquiry is whether the circuit court’s finding
that the disputed fact was proved 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. Houseman, supra. In resolving the clearly erroneous question, the reviewing
court defers to the circuit court’s superior opportunity to observe the parties and to judge
the witnesses’ credibility. Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. 356, at 7.
In Mercado v. Arkansas Department of Human Services, 2017 Ark. App. 232, 519 S.W.3d
715 (Mercado I), we recounted earlier proceedings in this case:
On June 17, 2016, the Arkansas Department of Human Services (DHS)
exercised a 72-hour hold on three-month-old A.M. after a medical examination at
Arkansas Children’s Hospital revealed bone fractures, head trauma, brain damage,
and a subdural hematoma. A probable-cause order was entered on August 17, 2016,
continuing custody of A.M. with DHS. The court held a hearing on September 12,
2016, after DHS filed a motion to terminate reunification services. Dr. Karen Farst,
a specialist in child-abuse pediatrics who examined A.M. at Children’s, testified at
the hearing that A.M.’s head injury was a “near fatality” and that her injuries were
“indicative of physical abuse.” Following the hearing, the circuit court adjudicated
A.M. dependent-neglected with the stated goal of adoption, and granted DHSs’
motion to terminate reunification services. The court entered a separate order
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denying appellant’s petition for a second medical-expert opinion. The court attached
Rule 54(b) certificates to both orders.
Mercado I, 2017 Ark. App. 232, at 1–2, 519 S.W.3d at 715–16. Mercado filed her notice of
appeal in Mercado I from the circuit court’s orders adjudicating A.M. dependent-neglected,
relieving DHS from providing reunification services, and denying Mercado’s petition for a
second medical-expert opinion. However, her sole point on appeal was that the circuit
court erred in denying her petition for a separate medical expert. We affirmed. Id. at 3,
519 S.W.3d at 717.
In the order terminating Mercado’s parental rights, the circuit court found that the
State had proved two statutory grounds. The first ground states, as relevant to the present
case:
(vi) The court has found the juvenile . . . dependent-neglected as a result of neglect
or abuse that could endanger the life of the child, . . . which was perpetrated by the
juvenile’s parent or parents or stepparent or stepparents.
....
(b) Such findings by the juvenile division of circuit court shall constitute
grounds for immediate termination of the parental rights of one (1) or both
of the parents;
Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a) & (b). Under the second ground,
a court of competent jurisdiction has found the parent to have subjected any juvenile to
aggravated circumstances. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix) (Repl. 2015).
“Aggravated circumstances” means, in relevant part, that a juvenile has been “chronically
abused, subjected to extreme or repeated cruelty”; or that a determination has been 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)(i).
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In termination cases, a challenge to a finding of abuse or aggravated circumstances
must be made, if at all, in an appeal from the adjudication hearing. Hannah v. Ark. Dep’t of
Human Servs., 2013 Ark. App. 502, at 4 (citing Dowdy v. Ark. Dep’t of Human Servs., 2009
Ark. App. 180, 314 S.W.3d 722). Here, the two statutory grounds for termination were
based on previous findings in the adjudication order. Thus, counsel states in the present
no-merit appeal that there can be no challenge to the grounds for termination because they
were not challenged in the appeal of the adjudication order.
Counsel also states that the court’s best-interest finding does not provide a basis for
reversal. The best-interest analysis includes consideration of the likelihood that the juvenile
will be adopted and of the potential harm caused by returning custody of the child to the
parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Counsel concludes that, particularly in light
of our great deference to the circuit court’s superior ability to determine credibility of
witnesses, there was sufficient evidence to support the circuit court’s finding that
termination of Mercado’s parental rights was in A.M.’s best interest. Wafford v. Ark. Dep’t
of Human Servs., 2016 Ark. App. 299, at 5, 495 S.W.3d 96, 100.
In addition to the statutory grounds for termination and the court’s best-interest
analysis, the court made other rulings adverse to Mercado. Counsel’s brief includes a
discussion of each ruling that was preserved for review, along with an explanation of why
reversal is not warranted.
Pro Se Points
Mercado asserts in her pro se points that she did not neglect or abuse A.M. She raises
various arguments: (1) even after DHS had stopped providing services, she (Mercado)
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finished almost everything she had been asked to do but was given no chance to finish before
the case moved to termination; (2) the portion of the expert-witness doctor’s testimony
“that went along” with Mercado’s testimony was treated as a lie; (3) her attorney did not
try to get a second expert; (4) her version of events was not considered; (5) the CT scan did
not determine the time of injury; (6) the stepfather should not be blamed; and (7) the court
wasn’t sure about A.M.’s adoptability. DHS and A.M.’s attorney ad litem responded to the
pro-se points, incorporating the no-merit brief of Mercado’s counsel verbatim and resting
on those explanations as to why the detailed adverse decisions are not erroneous. They also
respond that Mercado’s new arguments cannot be made for the first time on appeal, Ark.
Dep’t of Health & Human Servs. v. Jones, 97 Ark. App. 267, 274, 248 S.W.3d 507, 512 (2007),
and that the weight of the evidence was a matter for the circuit court.
We agree with the response of DHS and the attorney ad litem to Mercado’s points.
Based on our examination of the record and the brief presented to us, we find that counsel
has complied with the requirements established by the Arkansas Supreme Court for no-
merit briefs in termination cases, and we hold that the appeal is without merit.
Affirmed; motion granted.
WHITEAKER and BROWN, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
One brief only.
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