Kilmer v. Ark. Dep't of Human Servs.

Cite as 2014 Ark. App. 694
ARKANSAS COURT OF APPEALS
DIVISION II
No.CV-14-665
Opinion Delivered December 3, 2014
KATHRYN KILMER APPEAL FROM THE GARLAND
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-13-375]
V.
HONORABLE VICKI SHAW COOK,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILD
APPELLEES AFFIRMED; MOTION TO
WITHDRAW GRANTED
WAYMOND M. BROWN, Judge
The Garland County Circuit Court terminated the parental rights of appellant Kathryn
Kilmer to her son, T.K. (dob 12-13-10).1 Kilmer’s counsel has filed a motion to withdraw
and a no-merit brief, pursuant to Linker-Flores v. Arkansas Department of Human Services,2 and
Arkansas Supreme Court Rule 6-9(i),3 contending that there are no meritorious grounds to
support an appeal. The clerk of our court mailed a certified copy of counsel’s motion and
brief to appellant, informing her of her right to file pro se points for reversal. Appellant has
filed pro se points for reversal. The Arkansas Department of Human Services (DHS) and the
1
The court also terminated the putative father’s parental rights. However, the father’s
termination is not the subject of this appeal.
2
359 Ark. 131, 194 S.W.3d 739 (2004).
3
(2013).
Cite as 2014 Ark. App. 694
ad litem chose not to file a brief. However, they did file a joint response to appellant’s pro
se points. We affirm the termination order and grant counsel’s motion to withdraw.
DHS took emergency custody of T.K. on May 10, 2013, after appellant was arrested
for contempt, and there was no other legal caretaker for T.K. DHS petitioned the court for
emergency custody on May 15, 2013. The court issued an ex parte order for emergency
custody on May 20, 2013. The child was adjudicated dependent in an order filed June 28,
2013, based on the lack of a caretaker.4 The adjudication order established a goal of
reunification and ordered appellant to do a number of things before T.K. could be successfully
returned to her custody. In a consent order filed September 17, 2013, the court placed T.K.
in the temporary custody of appellant while appellant attended an inpatient treatment
program.
DHS filed a motion for ex parte emergency change of custody on November 26, 2013.
According to the affidavit filed with the motion, DHS took a seventy-two hour hold on T.K.
on November 22, 2013, due to alleged harm and inappropriate care. More specifically, AR
Cares, the residential treatment facility where appellant was living with T.K., contacted DHS
due to its concerns that appellant could no longer parent T.K. in a safe manner. The facility
also informed DHS that it planned to discharge appellant due to appellant’s extreme mental
health issues.5 The court entered an order of emergency change of custody on December 2,
2013. T.K. was adjudicated dependent-neglected in an order filed January 31, 2014, based
4
He was not adjudicated neglected at this time.
5
This was the second residential treatment facility appellant had been discharged from
due to her mental problems.
2
Cite as 2014 Ark. App. 694
on neglect and abandonment. The court made a finding that appellant had subjected T.K.
to aggravated circumstances by abandoning him. A permanency-planning hearing took place
on March 5, 2014. The court entered an order that same day changing the case’s goal to
termination of parental rights.
DHS filed a petition for the termination of appellant’s parental rights on March 24,
2014. The petition listed three possible grounds for termination: (1) that appellant had
abandoned the child;6 (2) that subsequent to the filing of the original petition for dependency-
neglect, other factors or issues arose which demonstrate that return of the child to the family
home is contrary to his health, safety, or welfare and that, despite the offer of appropriate
family services, appellant had manifested the incapacity or indifference to remedy the
subsequent issues or factors or rehabilitate the circumstances which prevent return of the child
to appellant;7 and (3) that appellant had subjected the child to aggravated circumstances.8
The termination hearing took place on April 30, 2014.9 At the conclusion of the
hearing, the court granted DHS’s petition. The order terminating appellant’s parental rights
was entered on that same date. It stated in pertinent part:
C) that throughout this time, the mother . . . [has] not followed this Court’s orders or
the ADHS case plan, [has] failed to remain clean and sober, [has] failed to submit to
random drug screens, [has] failed to maintain regular contact with the DCFS
caseworker and CASA advocate, [has] failed to maintain stable housing and stable
6
Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) (Supp. 2013).
7
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2013).
8
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) (Supp. 2013).
9
Appellant was not present at this hearing, although she had notice of it.
3
Cite as 2014 Ark. App. 694
employment, [has] failed to complete a course of parenting instruction, and [has] failed
to demonstrate the ability to provide for the health, safety, and welfare of the juvenile;
D) that the mother . . . [has] abandoned the juvenile; specifically,. . . the mother has
not stayed in contact with the DCFS caseworker or the CASA volunteer and neither
the Department nor the CASA volunteer know where the mother is; and, the mother
has not had contact with the juvenile in the last several months; the Court made a
previous finding of abandonment by clear and convincing evidence at the adjudication
hearing of this matter on January 30, 2014, and said finding was not appealed and the
time for filing an appeal has run;
E) that the mother . . . [has] been found by the Court to have subjected the juvenile
to aggravated circumstances. “Aggravated circumstances” means: A juvenile had been
abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually
abused, sexually exploited, or a determination had been or is made by a judge that
there is little likelihood that services to the family will result in successful reunification;
or, a child or a sibling has been neglected or abused such that the abuse or neglect
could endanger the life of the child[.] [S]pecifically, at the Adjudication hearing of this
matter on January 30, 2014, the Court found by clear and convincing evidence that
the mother . . . [had] subjected the juvenile to aggravated circumstances in that the
mother . . . [had] abandoned the juvenile; and . . . the mother . . . [did not appeal] said
finding and the time for filing an appeal has run;
F) that subsequent to the filing of the original emergency petition, other factors or
issues arose which demonstrate that return of the juvenile to [the] mother[’s] . . . home
. . . is contrary to the juvenile’s health, safety and welfare; and that, despite the offer
of appropriate family services, the mother . . . [has] manifested the incapacity or
indifference to remedy the subsequent issues or factors or rehabilitate [her]
circumstances which prevent return of the juvenile to [the] mother[’s] . . . home[.]
[S]pecifically, the mother . . . [has] abandoned the juvenile and this case after being
properly served with process according to Arkansas law; that [her] abandonment of the
juvenile and this case demonstrates [her] incapacity or indifference to remedy the
circumstances that prevent return of the juvenile and achieve the goal of reunification.
In terminating appellant’s parental rights, the court found that T.K was adoptable and that
potential harm existed if he was returned to appellant. This timely appeal followed.
Counsel contends that this appeal is without merit. After carefully examining the
record, the brief, and Kilmer’s pro se points, we hold that counsel has complied with the
requirements established by the Arkansas Supreme Court for no-merit appeals in termination
4
Cite as 2014 Ark. App. 694
cases,10 and we conclude that the appeal is wholly without merit.11 Accordingly, we affirm
the order terminating appellant’s parental rights and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
WYNNE and GRUBER, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect Appellate
Division, for appellant.
No response.
10
In dependency-neglect cases, if, after studying the record and researching the law,
appellant’s counsel determines that the appellant has no meritorious basis for appeal, then
counsel may file a no-merit petition and move to withdraw. The petition must include an
argument section listing all adverse rulings to the appellant made by the circuit court on all
objections, motions, and requests made by the party at the hearing from which the appeal
arose and explaining why each adverse ruling is not a meritorious ground for reversal. The
petition must also include an abstract and addendum containing all rulings adverse to the
appellant made at the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-9(i)
(2013).
11
While appellant has filed pro se points, she points to no specific error by the trial
court and generally states that she wants to be given another chance.
5