Tenny v. Arkansas Department of Human Services

CLIFF HOOFMAN, Judge.

| ¶ This is an appeal from an order terminating appellant’s parental rights to his daughter, A.T., born March 12, 2009. Michael Tenny’s counsel has filed a no-merit brief and a motion to withdraw as counsel 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), asserting that there are no issues of arguable merit to support an appeal. The clerk of this court attempted to mail a copy of counsel’s motion and brief to Tenny’s last known address informing him of his right to file pro se points for reversal. Tenny’s last known address was a Department of Correction facility where he is no longer incarcerated. We affirm the order terminating Tenny’s parental rights and grant counsel’s motion to withdraw.

Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of |2the health and well being of the child. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark.App. 526, 2010 WL 2522197. Grounds for termination of parental rights must be proven by clear and convincing evidence. Id. 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. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is 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.

We agree with counsel’s brief that there were no adverse rulings at the termination hearing other than the ultimate decision to terminate Tenny’s parental rights. Thus, the only issue for appeal is whether there was clear and convincing evidence to support the termination order.

The trial court determined that it was in the child’s best interest to terminate Ten-ny’s parental rights and found clear and convincing evidence of two grounds for termination, Ark.Code Ann. § 9-27-341(b)(3)(B)(i) and (ix)(a)(3)(B)(i) (Repl. 2009). The trial court determined that termination was in the child’s best interest considering the likelihood that she would be adopted and the potential harm caused by returning her to Tenny’s custody. Ark. Code Ann. § 9-27-341(b)(3)(A). The family service worker testified that he did not believe A.T. had any developmental or medical issues that would prohibit her from being adopted. |aHe testified that she was a friendly, easy baby who was favorable for adoption statistically because she was healthy, Caucasian, and under the age of two. He testified that the home she was in was a foster-to-adopt home, and the foster parents had expressed an interest in adopting A.T.

Regarding the potential harm of returning A.T. to Tenny, the DHS family service worker testified that Tenny had not been in compliance with the court orders and case plans because he had been incarcerated throughout the case. DHS did not know Tenny’s anticipated release date from incarceration, although Tenny testified that he hoped to be released within one month. DHS noted that Tenny had been incarcerated for 13 months of A.T.’s 17-month life. The family service worker testified that even if Tenny were released that day, he did not believe that Tenny would be in a position to take custody of A.T. We find that there is sufficient evidence to support the trial court’s finding that termination was in the child’s best interest.

There is also sufficient evidence to support the statutory ground for termination found by the trial court in Ark. Code Ann. § 9-27-341(b)(3)(B )(ix)fo) (3) (B) (i)— that the parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to have subjected the child to aggravated circumstances. Aggravated circumstances means “a juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification.” Ark.Code Ann. § 9-27-_^41(h)(3)(B)Qx)(a)(3)(B)(i).4 DHS exercised an emergency hold on A.T. on July 17, 2009, upon finding her in a home with a methamphetamine lab and arresting her parents. The circuit court granted a petition for emergency custody. The affidavit of the family service worker stated that the drug task-force officer reported that the methamphetamine lab was one of the largest he had seen. In an order filed September 28, 2009, the court adjudicated A.T. dependent-neglected due to abuse, neglect, and parental unfitness. The court found that A.T. was exposed to illegal drugs according to a hair follicle test that was positive for marijuana and that she was exposed to noxious chemicals as a result of her presence in a home that contained an operational methamphetamine lab. In termination cases, a challenge to the finding of abuse must be made, if at all, in an appeal from the adjudication hearing. Krass v. Ark. Dep’t of Human Servs., 2009 Ark. App. 245, 306 S.W.3d 14 (citing Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722). Tenny did not appeal from the adjudication order. In the termination order, the court found that exposure to drugs and chemicals constituted grounds for termination because the parents had subjected A.T. to aggravated circumstances. We agree that A.T. was subjected to aggravated circumstances in the form of “extreme or repeated cruelty.” Thus, there is sufficient evidence to support termination of Tenny’s parental rights upon this ground.

Proof of only one statutory ground is sufficient to terminate parental rights. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, 2010 WL 2522197. Therefore, the circuit court’s findings on the other ground for termination need not be discussed.

1 «¡Based on our review of the record and the brief submitted to us, we conclude that counsel has complied with Rule 6 — 9(i) and that the appeal is without merit. Accordingly, we affirm the termination order and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

VAUGHT, C.J., and ROBBINS, GRUBER, and BROWN, JJ., agree. HART, J., dissents.