Jones v. Ark. Dep't of Human Servs.2

Cite as 2014 Ark. App. 735
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-724
EUGENE JONES Opinion Delivered December 17, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
SIXTH DIVISION
ARKANSAS DEPARTMENT OF [NO. JN2013-356]
HUMAN SERVICES AND MINOR
CHILDREN HONORABLE JOYCE WILLIAMS
APPELLEES WARREN, JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s termination of his parental rights to K.J.1
and K.J.2. 1 Appellant’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 stating that there are no meritorious grounds to support an appeal.
The clerk mailed a certified copy of counsel’s motion and brief to appellant, informing
him of his right to file pro se points for reversal. Appellant failed to file pro se points for
1
The parental rights of the mother, Latasha Bankston, were terminated in the same
order, but she is not a party to this appeal.
2
359 Ark. 131, 194 S.W.3d 739 (2004).
3
(2011).
Cite as 2014 Ark. App. 735
reversal. We affirm the circuit court’s order terminating appellant’s parental rights and
grant counsel’s motion to withdraw.
K.J.2 was born to Latasha Bankston on July 5, 2012, weighing four pounds. Her
meconium tested positive for THC. Due to her gestational age of 32 weeks, K.J.2 was in a
neonatal intensive care unit with heart issues when a referral for investigation was made to
the Arkansas Department of Human Services (DHS). A family services worker made a true
finding of newborn illegal substance exposure as to K.J.2. A protective-services case was
opened on August 9, 2012, and appropriate services were provided. However, K.J.2 was
again admitted to Arkansas Children’s Hospital (ACH) on August 24, 2012, for severe acid
reflux and failure to gain weight; on September 5, 2012, for reflux; and on December 16,
2012, for a severe virus.
Throughout this time period, the hospital staff had had issues with the behavior of
Bankston and appellant, and DHS had had issues locating and communicating with both
parents. Accordingly, a medical staffing was held on January 17, 2013, following which
both parents were required to sign a behavior contract, the violation of which would
result in their restriction from the hospital.
Due to the appearance of mental instability on the part of Bankston, the controlling
nature of appellant, an inability to verify a home address for either parent to which K.J.2
could be released, and both parents’ lack of cooperation with ACH, Pulaski County
Home Health Unit and DHS, DHS took a 72-hour hold on K.J.2 on January 28, 2013. 4
4
DHS did not take a hold on K.J.1, believing that because he was not left in his
mother’s care alone, he could remain safe in the home.
2
Cite as 2014 Ark. App. 735
On January 31, 2013, DHS filed a petition for ex-parte emergency custody and
dependency-neglect as to K.J.2. The circuit court entered an ex-parte order for
emergency custody of K.J.2 on the same date; K.J.1 was permitted to remain in the
custody of Bankston and appellant.
Following a February 6, 2013 probable-cause hearing for K.J.2, the circuit court
entered a probable-cause order in which it took a 72-hour hold on K.J.1. Therein, it
found that probable cause existed, and still existed, to protect K.J.2. Also, because K.J.1
was in the home with Bankston and appellant, he was exposed to “the same dynamics of
the parent’s behaviors and interactions[,]” and because there was “[n]o credible evidence”
presented that K.J.1 was never left alone with Bankston, the court took a 72-hour hold on
K.J.1 at the hearing. 5 An order reflecting the same was entered February 6, 2013. 6
Following a February 20, 2013 probable-cause hearing as to K.J.1, the circuit court
entered an order on the same date finding that probable-cause existed, and still existed, to
protect K.J.1 and that it was in his best interest to continue in DHS’s legal custody.
5
We note that DHS filed an amended petition for ex parte emergency custody and
dependency-neglect, including K.J.1, on February 11, 2013. This document is not in the
addendum. However, we find that appellant’s failure to include the amended petition does
not prevent this court from addressing the merits of this appeal because the circuit court’s
February 6, 2013 order had already directed that K.J.1 be removed from the home.
Accordingly, DHS’s petition was an unnecessary, additional formality. However, the court
did enter an amended ex parte order for emergency custody granting DHS’s amended
petition, including both children, on February 12, 2013.
6
Following a February 14, 2013 hearing, the court entered an order on the same
date setting the date for the probable-cause hearing as to K.J.1 for February 20, 2013. The
court detailed the reasons for the delay in issuance of the amended ex parte order for
emergency custody and advised that, despite the delay, said order was still issued within
the five-business-day time frame set forth in Arkansas Code Annotated section 9-27-315.
3
Cite as 2014 Ark. App. 735
Therein, the circuit court adopted the parties’ stipulation that the same facts and
circumstances still existed that were in existence at the February 6, 2013 probable-cause
hearing and that probable cause existed for the issuance of the ex-parte order for
emergency custody and that probable cause still existed.
Also on February 20, 2013, the children’s attorney ad litem filed a cross-petition for
dependency-neglect of both children due to neglect and both parents being unfit.
Following a March 6, 2013 hearing, the circuit court entered an adjudication and
disposition order accepting the parties’ stipulation that both children were dependent-
neglected, finding the same to be due to neglect from their mother’s inability to care for
and protect them due to her unstable housing. Among other things, appellant was ordered
to cooperate with DHS; notify DHS, within 48 hours, of any change in his residence and
contact information; attend individual counseling; refrain from illegal drugs and alcohol
and any prescription medications not prescribed specifically for him; submit to random
drug screenings; and obtain and maintain safe, stable housing and stable income.
In a review order entered July 29, 2013, the court found that appellant had partially
complied with the case plan and court orders, specifically noting that while he had
completed parenting classes, he had only attended seven out of thirty-three visits with the
children and had not made himself available for court-ordered random drug screens. The
court specifically found that appellant had “very little credibility with the Court.”
Appellant was ordered to complete a psychological evaluation. The case plan, as to
appellant, was dependent on the outcome of his psychological evaluation, which the
circuit court deemed was needed to determine if he was an appropriate caregiver.
4
Cite as 2014 Ark. App. 735
Following a hearing on November 6, 2013, the court entered a review order on
November 26, 2013, finding that appellant was not in a position to properly take care of
and provide for the children’s needs. The circuit court instituted a concurrent goal of
adoption. The court found that appellant had again only partially complied with the case
plan as he had completed his psychological evaluation, participated and made progress in
therapy, and submitted to random drug screens. However, he still did not have
appropriate housing, was unemployed, had tested positive on one alcohol screening, and
had only attended twelve of twenty-seven visits since the last hearing. Furthermore, the
circuit court found that appellant had not made much progress towards alleviating or
mitigating the causes of the children’s removal from the home. It noted that it was “still
concerned with [appellant’s] thought processes[.]”
Following a January 23, 2014 hearing, the circuit court entered a permanency
planning order on February 5, 2014, authorizing a plan for adoption and authorizing DHS
to file a petition for termination of appellant’s parental rights. Again, the court found that
appellant had only partially complied with the case plan as he still did not have stable
housing, income, or employment; had attended only five of seventeen scheduled visits
with the children since the last hearing; had not demonstrated an ability to appropriately
care for K.J.2’s medical condition with the feeding tube; and had tested positive for
benzodiazepines and methadone. 7 A termination hearing was set for April 16, 2014. 8 On
7
Appellant was appointed separate counsel in a January 24, 2014 order.
8
The scheduled termination hearing was continued to May 1, 2014, by order
entered on April 17, 2014, due to Bankston’s hospitalization. The hearing was continued
5
Cite as 2014 Ark. App. 735
March 6, 2014, DHS filed a petition for termination of appellant’s parental rights pursuant
to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (twelve months out of the
home without remediation of the conditions causing removal); Arkansas Code Annotated
section 9-27-341(b)(3)(B)(vii)(a) (other factors arose subsequent to removal); and Arkansas
Code Annotated section 9-27-341(b)(3)(B)(ii)(a) (willful failure to provide material
support or to maintain meaningful contact with the children). 9
Following a hearing on May 21, 2014, the circuit court entered an order on May
28, 2014, terminating appellant’s parental rights and granting DHS the power to consent
to the children’s adoption. The circuit court found clear and convincing evidence that it
was in the children’s best interest to grant DHS’s petition to terminate appellant’s parental
rights and that only the “other factors” ground supported termination of appellant’s
parental rights. It made all other necessary findings. This timely appeal followed.
In compliance with Linker-Flores and Rule 6-9(i), counsel ordered the entire record
and found that after a conscientious review of the record, there are no issues of arguable
merit for appeal. Counsel’s brief adequately covered each action that was adverse to
appellant below. After carefully examining the record and the brief presented to us, which
included all adverse rulings, we conclude that the appeal is wholly without merit.
Accordingly, we affirm the termination of appellant’s parental rights and grant counsel’s
motion to withdraw.
again by order entered on May 1, 2014, to May 21, 2014, due to appellant’s scheduled
surgery on May 1, 2014.
9
(2013).
6
Cite as 2014 Ark. App. 735
Affirmed; motion to withdraw granted.
HARRISON and VAUGHT, JJ., agree.
Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.
No response.
7