Washington v. Ark. Dep't of Human Servs. , 2014 Ark. App. 13 ( 2014 )

Cite as 2014 Ark. App. 13
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-716
Opinion Delivered January 8, 2014
TERRY WASHINGTON
APPELLANT APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
V. WESTERN DISTRICT
[NO. JV-12-61]
ARKANSAS DEPARTMENT OF HONORABLE BARBARA HALSEY,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES MOTION TO WITHDRAW DENIED;
REBRIEFING ORDERED
KENNETH S. HIXSON, Judge
Appellant Terry Washington appeals the June 2013 order of the Craighead County
Circuit Court that terminated his parental rights to his three-year-old son, TW, born in
March 2010. TW’s biological mother Tassie Anthony had her parental rights terminated to
both TW and his younger half-sister, and Anthony’s merit-based appeal was affirmed in
Anthony v. Arkansas Department of Human Services, 2013 Ark. App. 556, handed down on
October 2, 2013.1 Washington’s attorney has submitted a no-merit brief and a motion to be
relieved from representation pursuant to Linker-Flores v. Arkansas Department of Human Services,
359 Ark. 131, 194 S.W.3d 739 (2004). Therein, Washington’s counsel asserts that after a
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In short, Ms. Anthony abused illegal drugs and was in and out of jail, with no steady
job, income, or stable housing. She was, by her own admission, unavailable for the first six
months, and she was uncooperative and partially unavailable for the last six months of the
year-long case with the Department of Human Services.
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thorough review of the record, there is no issue of arguable merit to raise on appeal and that
he should be permitted to withdraw as counsel. The no-merit brief purports to explain each
adverse ruling and why none would support a meritorious argument for reversal. Neither the
brief nor the motion cites to Ark. Sup. Ct. R. 6-9(i) (2013), which addresses the requirements
in no-merit appeals of termination-of-parental-rights cases. Washington was provided a copy
of his counsel’s brief and motion, and he was afforded an opportunity to file pro se points for
reversal. Washington filed a one-page handwritten letter. Neither the Department of Human
Services nor the child’s attorney ad litem filed a responsive brief. Having reviewed this appeal
under the proper standards, we hold that appellate counsel has not demonstrated that an
appeal of this termination order would be frivolous or wholly without merit. See Fredrick v.
Ark. Dep’t of Human Servs., 2009 Ark. App. 652. We therefore order rebriefing and deny
counsel’s motion.
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. Ark. Code Ann. § 9-27-341 (Supp. 2011);
M.T. v. Ark. Dep’t of Human Servs., 58 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.
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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 juvenile’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 or her child. Compare Camarillo-Cox v. Ark.
Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); 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 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 .
In early March 2012, the Craighead County Circuit Court entered an ex parte order
for emergency custody of TW, following his half-sibling’s birth in February 2012 and their
mother’s positive test for drugs. TW was ordered to be placed in DHS custody, but the
mother refused to relinquish custody of him. The children were adjudicated dependent-
neglected in April 2012 due to parental unfitness. DHS filed a motion to terminate both the
mother’s and Washington’s parental rights to the children in June 2012.
The June 2012 petition alleged two grounds regarding Washington: (1) that “other
issues or factors” arose after the case was filed showing that despite the provision of
appropriate services, Washington was incapable of, or indifferent to, remedying the
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subsequent issues or factors or rehabilitating his circumstances, preventing him from regaining
custody of TW under Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a); and (2) that Washington
had been sentenced in a criminal proceeding to a period of time that would constitute a
substantial period of TW’s life under Ark. Code Ann. § 9-27-341(b)(3)(B)(viii). In August
2012, the mother relinquished custody of her son to DHS. Her parental rights were
terminated after a hearing in January 2013. See Anthony, supra. Washington, who had been
in jail since October 2012, did not seek to formally establish paternity with regard to TW
until February 2013.
At the termination hearing in April 2013, Washington complained that DHS failed to
include him in the case plan and failed to offer him appropriate reunification services. He said
that he watched the “The Clock is Ticking” video, attended three parenting classes, passed
one drug screen, and attended visits with TW, although he was just a “tag along” with the
biological mother.
The trial judge found that TW was adoptable based on the testimony of DHS
caseworkers that TW and his half-sibling had been in the same foster home for months and
were likely to be adopted by the same family. The trial judge also made a best-interest
finding, addressing the potential harm of returning TW to appellant, who could not take
custody of his son at that time because he was in jail.
The trial judge took note of evidence that Washington was incarcerated from October
2011 to April 2012, was at liberty for a few months, and then incarcerated since October
2012. The trial judge also noted that Washington appeared at this hearing in “prison garb and
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shackles” with no verification of when he might be released, although he believed he would
be released in October 2013. The trial court was not impressed with Washington’s asserted
plan to live with his mother upon release from jail; Washington’s mother did not corroborate
that plan. The trial court found that Washington lacked any income, lacked any suitable
home, and had not resolved his criminal issues. The trial court found that DHS had proved
both grounds it alleged. Proof of only one ground is required to support termination of
parental rights. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526.
Counsel addresses two evidentiary rulings that were adverse to Washington, both of
them concerning relevance. Counsel does not address the “other factors” ground in his
appellate brief, which would include an analysis of the services DHS provided to Washington.
He addresses only the substantial-period-of-incarceration ground in a most cursory and
unsatisfactory fashion. Counsel’s discussion does not meet the requirements of no-merit
appeals in termination-of-parental-rights cases. See Rodgers v. Ark. Dep’t of Human Servs.,
2010 Ark. App. 172.
Because counsel fails to adequately explain why there was clear and convincing
evidence of at least one ground to support termination of his parental rights, we must require
counsel to rebrief this appeal. See Blakes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 108.
We do not direct that the substituted brief be on a merit or no-merit basis but rather leave
that to counsel’s professional judgment.
We deny counsel’s motion to withdraw and order rebriefing.
WYNNE and BROWN, JJ., agree.
Thomas Wilson, for appellant.
No response.
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