Brown v. Arkansas Department of Human Services ( 2017 )

Cite as 2017 Ark. App. 303
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-1046
Opinion Delivered: May 10, 2017
KHALEELAH BROWN
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. ELEVENTH DIVISION
[NO. 60JV-15-720]
ARKANSAS DEPARTMENT OF HONORABLE PATRICIA JAMES,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES
AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
Appellant Khaleelah Brown appeals from the termination of her parental rights to
her four children A.B., K.B., B.B., and R.B. 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), Khaleelah’s counsel has filed a no-merit brief and motion to withdraw,
asserting that there are no issues of arguable merit to support an appeal and that he should
be relieved as counsel. A copy of Khaleelah’s counsel’s brief and motion was mailed to
Khaleelah, and after being informed of her right to file pro se points, Khaleelah declined to
file any points. We affirm and grant appellant’s counsel’s motion to be relieved.
1
The children’s father had little participation in the case, and his parental rights were
also terminated. The father is not a party to this appeal.
Cite as 2017 Ark. App. 303
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(b)(3)
(Repl. 2015); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851.
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. Gray v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 24. 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.
Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark.
Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
This case began on May 19, 2015, when appellee Arkansas Department of Human
Services (DHS) filed a petition for emergency custody of all four children. Attached to the
petition were the affidavits of a DHS caseworker and criminal investigator stating that
Khaleelah’s youngest child, nine-month-old R.B., had been transported by ambulance to
the hospital with serious injuries. Upon arriving at the hospital, R.B. had to be revived
after he had stopped breathing and was unresponsive. R.B. was diagnosed with a subdural
hematoma, a skull fracture, and retinal hemorrhaging consistent with shaken-baby
syndrome. R.B. underwent emergency surgery to relieve pressure in his brain, and a blood
clot was noted that was subacute, meaning it was 2−3 days old and could not have happened
2
Cite as 2017 Ark. App. 303
that day. When asked how the injuries occurred, Khaleelah stated that, while the children’s
father was outside the house and she was using the restroom, R.B. fell out of Khaleelah’s
bed. R.B.’s doctor determined that R.B.’s injuries were too extensive to have been
sustained from falling off a bed. On the same day the petition was filed, the trial court
entered an ex parte order for emergency DHS custody of all four children.
On May 27, 2015, the trial court entered a probable-cause order. In that order, the
trial court stated that R.B. was still in the hospital and that the other three children were in
foster care. R.B. was on a ventilator, and both parents were suspected of child maltreatment.
The father had been jailed for a probation violation, and he would remain in jail during
most of these proceedings. In the probable-cause order, the trial court ordered no contact
between the children and either parent.
On July 20, 2015, the trial court entered an adjudication order finding all four
children to be dependent-neglected and setting the case goal as reunification. In the
adjudication order, the trial court noted that a criminal investigator had attempted to inspect
the bed and floor surface where R.B. had allegedly fallen, but that Khaleelah did not allow
the inspector in her home. The trial court further noted the testimony of Dr. Maria
Esquivel, who testified at the adjudication hearing that R.B. had to be revived twice during
surgery and could have died. Dr. Esquivel also testified that R.B.’s injuries were consistent
with a vehicle accident, a fall from a significant height, or being shaken. The trial court
made the following specific findings in the adjudication order:
[T]he Court finds by clear and convincing evidence that the children were subjected
to abuse, parental unfitness, and aggravated circumstances by the mother. Regarding
abuse, the Court finds that R.B.’s injuries are at variance with the history given by
mother. Based on medical testimony, R.B. suffered nonaccidental physical injury,
3
Cite as 2017 Ark. App. 303
specifically he is a child aged three or younger who was shaken. Regarding
aggravated circumstances, the Court finds by clear and convincing evidence that
R.B. was subjected to extreme cruelty, which is also defined as abuse, and this abuse
endangered his life. The totality of these circumstances also leads this Court to find
parental unfitness, and that the siblings are at risk of harm based on the extreme and
cruel abuse to their brother. R.B.’s injuries would have been caused by a fall from
a great height or motor vehicle accident, not falling off a bed. Dr. Esquivel testified
that the child’s injuries are consistent with “shaken baby syndrome.” Further, the
child had to be resuscitated three times during the time of the EMT arrival and the
conclusion of his surgery. The Court finds Dr. Esquivel’s testimony to be credible
and compelling. Mother identified herself as the only adult [present] at the time the
injuries occurred to R.B., based on her own prior statements. The Court finds that
the other three children would not be safe in mother’s care, based on this Court’s
findings today.
On November 4, 2015, the trial court entered a review order stating that Khaleelah
had been arrested and charged with first-degree battery committed against R.B. In the
criminal case, there was a no-contact order prohibiting any contact between Khaleelah and
all her children. On May 2, 2016, the trial court entered a permanency-planning order
finding that neither parent had made measurable progress in the case and that Khaleelah was
awaiting a jury trial on the criminal charges. In the permanency-planning order, the trial
court changed the case goal to termination of parental rights and adoption.
DHS filed a petition to terminate Khaleelah’s parental rights on June 3, 2016. The
termination hearing was held on July 27, 2016.
On August 30, 2016, the trial court entered an order terminating Khaleelah’s parental
rights as to all four children. The trial court found by clear and convincing evidence that
termination of parental rights was in the children’s best interest, and the court specifically
considered the likelihood of adoption, as well as the potential harm of returning the children
to Khaleelah’s custody as required by Arkansas Code Annotated section 9-27-341(b)(3)(A).
The trial court also found clear and convincing evidence of four statutory grounds under
4
Cite as 2017 Ark. App. 303
subsection (b)(3)(B). Pursuant to subsection (b)(3)(B)(i)(a), the trial court found that the
juveniles had been adjudicated by the court to be dependent-neglected and had continued
out of the custody of the parent for twelve months and, despite a meaningful effort by the
department to rehabilitate the parent and correct the conditions that caused removal, those
conditions had not been remedied by the parent. Under subsection (b)(3)(B)(vi)(a), the trial
court found R.B. and his siblings dependent-neglected as a result of neglect or abuse that
could endanger the life of the child, which was perpetrated by Khaleelah. Under subsection
(b)(3)(B)(vii)(a), the trial court found that other factors or issues arose subsequent to the
filing of the original petition for dependency-neglect that demonstrated that placement of
the juveniles in the custody of the parent was contrary to the juveniles’ health, safety, or
welfare and that, despite the offer of appropriate family services, the parent had manifested
the incapacity or indifference to remedy those issues or factors, or rehabilitate the parent’s
circumstances that prevent the placement of the juvenile in the custody of the parent.
Finally, under subsection (b)(3)(B)(ix)(a)(3)(B)(i), the trial court found that the parent had
subjected any juvenile to aggravated circumstances because R.B. had been subjected to
extreme cruelty, and also because there was little likelihood that services to the family would
result in successful reunification.
At the termination hearing, Dr. George DeRoeck, a psychologist, testified that
he conducted a psychological evaluation of Khaleelah. Based on his examination,
Dr. DeRoeck thought that Khaleelah had been under a good deal of stress for a number of
years and was woefully inadequately prepared to care for her children, which resulted in the
significant injuries to R.B. In his report, Dr. DeRoeck noted that the children’s father had
5
Cite as 2017 Ark. App. 303
in the past been violent toward Khaleelah and the children, and Khaleelah admitted that he
would leave marks on the children and she would cover them up. Dr. DeRoeck thought
that the children’s safety was at risk in Khaleelah’s custody.
DHS caseworker Rachel Nichols testified that R.B. was making progress with his
therapeutic services and that all four children were stable in their foster placements.
According to Ms. Nichols, Khaleelah had not substantially cooperated with DHS, and
Khaleelah had never provided an explanation for R.B.’s injuries that was consistent with
the medical evidence. Ms. Nichols believed that the children would be at great risk of harm
if returned to Khaleelah, and she thought that termination of Khaleelah’s parental rights was
in the best interest of the children. An adoption specialist, Jessica Warren, testified that all
four children were adoptable.
In the no-merit brief, appellant’s counsel correctly asserts that there can be no
meritorious challenge to the sufficiency of the evidence supporting termination of
Khaleelah’s parental rights. Although the trial court found four grounds for termination,
only one ground is necessary to support the termination. See Draper v. Ark. Dep’t of Human
Servs., 2012 Ark. App. 112, 389 S.W.3d 58. In both the adjudication order and the
termination order, the trial court found under Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a)
that R.B. and his siblings were dependent-neglected as a result of abuse perpetrated by
Khaleelah that could endanger the life of the child. In both the adjudication order and
the termination order, the trial court also found under Ark. Code Ann. § 9-27-
341(b)(3)(B)(ix)(a)(3)(B)(i) that there were aggravated circumstances because R.B. was
subjected to extreme cruelty.
6
Cite as 2017 Ark. App. 303
An adjudication order is an appealable order in a dependency-neglect proceeding.
Ark. Sup. Ct. R. 6-9(a)(1)(A). When a party fails to appeal from an adjudication order and
challenge the findings therein, she is precluded from asserting error with respect to those
findings on appeal from an order terminating parental rights. See Holloway v. Ark. Dep’t of
Human Servs., 2015 Ark. App. 458, 468 S.W.3d 805. Because Khaleelah did not appeal
from the adjudication order, which contained the trial court’s findings by clear and
convincing evidence that the children were dependent-neglected as a result of abuse that
could endanger the life of the child, and that R.B. had been subjected to extreme cruelty,
those grounds supporting termination cannot be challenged in this appeal. Moreover, on
this record we conclude that the trial court did not clearly err in finding these statutory
grounds based on the life-threatening injuries caused to R.B. while in Khaleelah’s care,
which were consistent with shaken-baby syndrome and inconsistent with Khaleelah’s
explanation for the injuries.
We also agree with appellant’s counsel’s assertion that there can be no meritorious
challenge to the trial court’s finding that termination was in the best interest of the children.
There had been no contact between Khaleelah and her children since the children were
removed from her custody. The psychological examiner and caseworker both testified that
the children would be at risk of harm if returned to Khaleelah’s custody, and there was
evidence that all of the children were adoptable. Based on the evidence presented, the trial
7
Cite as 2017 Ark. App. 303
court’s finding that termination of Khaleelah’s parental rights was in the best interest of the
children was not clearly erroneous.
We observe that, although appellant’s counsel has adequately explained why there
can be no meritorious challenge to the sufficiency of the evidence supporting termination,
there were two adverse rulings other than the termination itself that occurred during the
termination hearing. Although appellant’s counsel has abstracted these two adverse rulings
as required by Rule 6-9(i)(1)(B), counsel failed to explain in his brief why each adverse
ruling is not a meritorious ground for reversal as required by Rule 6-9(i)(1)(A). However,
as we explained in Houseman v. Arkansas Department of Human Services, 2016 Ark. App. 227,
491 S.W.3d 153, even if an adverse ruling is omitted from a no-merit brief in a termination
case, we may affirm if the ruling would clearly not constitute a meritorious ground for
appeal. Such is the case with regard to each of the omitted adverse rulings here.
The first adverse ruling occurred when the trial court, over appellant’s objection,
admitted into evidence a positive hair-follicle drug test of one of the children. The next
adverse ruling occurred during appellant’s cross-examination of the caseworker, when the
trial court sustained DHS’s relevancy objection to appellant’s question as to why the children
had not been placed with their maternal grandmother. We conclude that neither of these
evidentiary rulings amounted to an abuse of discretion and that any possible error did not
affect the outcome of the proceedings. Therefore, these adverse rulings would clearly not
constitute any meritorious ground for appeal.
8
Cite as 2017 Ark. App. 303
After examining the record and appellant’s counsel’s brief, we have determined that
this appeal is wholly without merit. Accordingly, we affirm the order terminating
appellant’s parental rights and grant her counsel’s motion to be relieved from representation.
Affirmed; motion granted.
ABRAMSON and MURPHY, JJ., agree.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.
No response.
9