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

Cite as 2016 Ark. App. 95
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-818
MELODY HUNTER Opinion Delivered February 10, 2016
APPELLANT
APPEAL FROM THE IZARD
V. COUNTY CIRCUIT COURT
[NO. JV-2014-12]
ARKANSAS DEPARTMENT OF HONORABLE LEE WISDOM
HUMAN SERVICES HARROD, JUDGE
APPELLEE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
CLIFF HOOFMAN, Judge
Appellant Melody Hunter appeals from the order of the Izard County Circuit Court
terminating her parental rights to her son, R.H.1 Hunter’s attorney has filed a no-merit brief
and a motion to withdraw as counsel pursuant to Rule 6-9(i) of the Rules of the Arkansas
Supreme Court and Court of Appeals and Linker-Flores v. Arkansas Department of Human
Services, 359 Ark. 131, 194 S.W.3d 739 (2004). The clerk of this court mailed a certified copy
of counsel’s motion and brief to Hunter’s last-known address informing her of her right to file
pro se points for reversal; however, she has not done so. We grant counsel’s motion to
withdraw and affirm the order of termination.
On December 12, 2013, the Arkansas Department of Human Services (DHS) opened
1
Hunter has three additional children who are not a part of this case. In addition, the
parental rights of R.H.’s putative father, David Brinkman, Jr., were not terminated in this
order, and he is not a party to this appeal.
Cite as 2016 Ark. App. 95
a protective-services case on the family when R.H. (DOB 11/03/2013) tested positive for
THC at birth. On March 27, 2014, DHS exercised a seventy-two-hour hold on R.H. after
Hunter had been arrested for interfering with governmental operations and criminal
trespassing. Hunter also tested positive for marijuana, opiates, and oxycodone at that time.
A petition for emergency custody of R.H. was filed on March 28, 2014, and the circuit court
granted the petition on April 2, 2014. Probable cause for removal was found in an order
entered on April 9, 2014.
The adjudication hearing was held on June 9, 2014. The circuit court found by a
preponderance of the evidence that R.H. was dependent-neglected based on inadequate
supervision by Hunter due to her drug use and participation in criminal activity. The court
set the goal of the case as reunification with Hunter, with a concurrent goal of guardianship
or adoption. Hunter was ordered to refrain from the use of controlled substances and to
comply with the case plan and court orders. She was allowed supervised visitation with R.H.
at the discretion of DHS.
At a review hearing held in July 2014, the circuit court found that Hunter was in partial
compliance with the case plan. She had obtained employment and housing but had not
completed her drug-and-alcohol assessment, participated in visitation, or remained drug free.
The court noted that DHS had filed a motion for termination of reunification services but
found that Hunter’s progress, although slow, was sufficient to deny the motion. The court
ordered Hunter to work diligently toward completion of the case plan, and she was further
ordered to appear at the DHS office at least two times per week to advise the caseworkers of
2
Cite as 2016 Ark. App. 95
her progress.
At the September 2014 review hearing, the circuit court found that Hunter had not
complied with the case plan in that she had not participated in visitation, she had failed to
remain in contact with DHS as ordered at the previous hearing, and she had not remained drug
free. Another review hearing was held in January 2015. The circuit court found that Hunter
was still not in compliance with the case plan and that she was not drug free, even though she
was currently pregnant. The court further noted that Hunter had not visited with R.H. for
several months.
The permanency-planning hearing was held in March 2015. The circuit court found
that Hunter had not complied with the case plan or court orders and changed the goal of the
case to termination of parental rights and adoption. DHS filed a petition to terminate Hunter’s
parental rights on April 30, 2015, and alleged three separate grounds for termination: (1) that
the juvenile had been adjudicated by the court to be dependent-neglected and had continued
out of the home for twelve months and, despite a meaningful effort by the department to
rehabilitate the home and correct the conditions which caused removal, those conditions had
not been remedied by the parent; (2) that the juvenile had lived outside of the home of the
parent for a period of twelve months and the parent had willfully failed to maintain meaningful
contact with the juvenile; and (3) that other factors or issues arose subsequent to the filing of
the original petition for dependency-neglect that demonstrate that return of the juvenile to the
custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the
offer of appropriate family services, the parent has manifested the incapacity or indifference to
3
Cite as 2016 Ark. App. 95
remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent
return of the juvenile to the custody of the parent. DHS further alleged that termination was
in the best interest of R.H.
The termination hearing was held on July 1, 2015. Wendy Hutchins, who was the
caseworker assigned to the family, testified that she had provided services to Hunter, such as
supervised visitation and referrals for a psychological evaluation, counseling, and drug
treatment. Hutchins stated that Hunter had completed parenting classes and the psychological
evaluation but had not completed her counseling sessions. In addition, although Hunter had
completed a drug-and-alcohol assessment, she had failed to complete either inpatient or
outpatient drug treatment despite Hutchins’s repeated offers to take her to treatment.
Hutchins indicated that Hunter had continued to use drugs throughout the case. At the time
of the termination hearing, Hunter was incarcerated for shoplifting, and she had tested positive
for methamphetamine and marijuana at the time of her arrest two weeks prior to the hearing.
Furthermore, Hutchins testified that Hunter had visited R.H. on only three occasions since
his removal, and she had not had any visits with the child since June 2014. Hutchins indicated
that Hunter had failed to visit R.H. or maintain contact with DHS as ordered by the circuit
court even though she resided within walking distance of the DHS office and, during part of
the case, lived only fifty steps from the office.
According to Hutchins, Hunter had failed to remedy either of the issues that caused
removal of R.H., which were Hunter’s drug use and her criminal activity. Hutchins testified
that R.H. was adoptable and that she had spoken with an adoptive parent who was interested
4
Cite as 2016 Ark. App. 95
in adopting him. She stated that there would be potential harm to R.H. if he were to be
returned to the custody of his mother based on Hunter’s drug addiction, her criminal behavior,
and her confrontational and threatening demeanor. Hutchins testified that two of Hunter’s
other children had to be hospitalized because they were addicted to illegal drugs at birth, and
she indicated that Hunter has a history of drug addiction and failure to protect her children.
Hutchins was also concerned about Hunter’s association with persons who were involved in
criminal activities.
Hunter admitted that R.H. had been out of her custody for more than one year and
that she had failed to complete the case plan. She indicated that she had not completed her
outpatient drug treatment because she did not have a vehicle; however, she could not explain
why she did not call Hutchins or another caseworker to request transportation. She admitted
that Hutchins had offered to take her to inpatient treatment and that she had refused. Hunter
further admitted that she had used marijuana throughout the case and indicated that the longest
period of time that she had been drug free was for two or three weeks. She testified that she
had also recently started using methamphetamine again. Hunter stated that she had visited
with R.H. for only approximately five hours total since his removal because she could not pass
a drug screen. Hunter agreed that R.H. could not be returned to her custody at that time due
to both her current incarceration and her drug addiction. However, she testified that she had
changed and that she was now ready to attend inpatient drug rehabilitation. She requested that
the circuit court not terminate her parental rights and that R.H. be placed with his grandfather
temporarily until she was able to complete the drug treatment that she needed.
5
Cite as 2016 Ark. App. 95
David Brinkman, Sr., R.H.’s grandfather, testified that he had visited with R.H.’s foster
parents and that he believed that it was in the child’s best interest to remain with his foster
parents. He therefore indicated that he was not attempting to seek custody of R.H.
Following the hearing, the circuit court entered an order on July 16, 2015, finding that
there was clear and convincing evidence to support termination of Hunter’s parental rights on
all three grounds alleged in the petition and that termination was in R.H.’s best interest.
Hunter filed a timely notice of appeal from the circuit court’s decision. Her counsel has filed
a no-merit brief, contending that there are no meritorious issues for appeal.
As counsel correctly asserts, the only ruling adverse to Hunter during the termination
proceeding was the circuit court’s decision to terminate her parental rights. A trial court’s
order terminating parental rights must be based on findings proved by clear and convincing
evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015); Dinkins v. Ark. Dep’t of Human
Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is defined as that
degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought
to be established. Dinkins, 344 Ark. 207, 40 S.W.3d 286. On appeal, the appellate court will
not reverse the trial court’s ruling unless its findings are 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. Id.
In determining whether a finding is clearly erroneous, an appellate court gives due deference
to the opportunity of the trial court to judge the credibility of witnesses. Id.
Pursuant to Ark. Code Ann. § 9-27-341(b)(3)(A), an order terminating parental rights
6
Cite as 2016 Ark. App. 95
shall be based on a finding by clear and convincing evidence that it is in the best interest of the
juvenile, including consideration of the likelihood of adoption and the potential harm,
specifically addressing the effect on the health and safety of the child, caused by continuing
contact with the parent. The order terminating parental rights must also be based on a
showing of clear and convincing evidence as to one or more of the grounds for termination
listed in section 9-27-341(b)(3)(B).
The circuit court’s order in this case found clear and convincing evidence to support
all three grounds alleged in the termination petition; however, only one ground must be
proved to support termination. Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 285
S.W.3d 277 (2008). In her brief, counsel focuses solely on the twelve-months ground found
in Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), which provides “[t]hat a juvenile has been
adjudicated by the court to be dependent-neglected and has continued to be out of the custody
of the parent for twelve (12) months and, despite a meaningful effort by the department to
rehabilitate the parent and correct the conditions that caused removal, those conditions have
not been remedied by the parent.”
R.H. was removed from Hunter’s custody when she was arrested on March 27, 2014,
and he was adjudicated dependent-neglected based on Hunter’s drug use and criminal activity.
At the termination hearing in July 2015, Hunter was again incarcerated and tested positive for
illegal drugs. She admitted that she had continued to use marijuana throughout the case and
that she needed inpatient drug treatment to combat her addiction. Based on this evidence, we
agree with counsel that there is no meritorious issue that could be raised on appeal with regard
7
Cite as 2016 Ark. App. 95
to the grounds for termination.
There is also no issue of arguable merit that could be raised regarding the circuit court’s
finding that termination was in R.H.’s best interest. The court found that R.H. was adoptable
based on Hutchins’s testimony that she had identified an adoptive family willing to adopt him.
The court also found that R.H. would be at risk of potential harm if he were returned to
Hunter’s custody based on her unresolved substance-abuse issues, her incarceration, the lack
of a residence or income to support the child, and her own admission that she had failed to
remedy the conditions causing R.H.’s removal. We have previously held that a parent’s
continued drug use demonstrates an indifference to remedying the conditions causing removal
and that this indifference is contrary to the children’s health, safety, and well-being. Carroll v.
Ark. Dep’t of Human Servs., 85 Ark. App. 255, 148 S.W.3d 780 (2004). Thus, we agree with
counsel that there would be no merit to an appeal challenging the termination of Hunter’s
parental rights.
Based on our review of the record and the brief submitted, we conclude that counsel
has complied with Ark. Sup. Ct. R. 6-9(i), and we agree that the appeal is without merit.
Therefore, we affirm the termination order and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
GRUBER and WHITEAKER, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
No response.
8