Ware v. Arkansas Department of Human Services

2014 Ark. App. 467
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-372
Opinion Delivered September 17, 2014
MONIQUE WARE APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-2012-325-D/N]
V.
HONORABLE THOMAS E. SMITH,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILDREN AFFIRMED; MOTION TO
APPELLEES WITHDRAW GRANTED
BRANDON J. HARRISON, Judge
The Benton County Circuit Court terminated the parental rights of Monique
Ware to her children J.A., C.A., M.W., K.W., X.W., and G.W. Ware’s counsel has filed
a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359
Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 6-9(i) (2013), asserting that there
are no meritorious issues that could arguably support an appeal and seeking permission to
withdraw as counsel. The clerk of this court sent a copy of counsel’s brief and motion to
withdraw to Ware at her last known address, advising her of her right to file pro se points
for reversal pursuant to Ark. Sup. Ct. R. 6-9(i)(3), but the notification was returned
marked “insufficient address.” We grant counsel’s motion to withdraw and affirm the
order terminating Ware’s parental rights.
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2014 Ark. App. 467
On 14 May 2012, the Department of Human Services (DHS) filed a petition for
emergency custody of Ware’s six children. The attached affidavit described reports of
environmental neglect, inadequate supervision, failure to protect, cuts/bruises/welts, and
striking a child. When the children were taken into custody, Ware tested positive for
THC, “Benzos,” and admitted to smoking marijuana while her children were present in
the home. The affidavit also noted that DHS had a history with Ware starting in August
2011, when G.W. and X.W. were born at thirty weeks and both Ware and the babies
tested positive for THC. In January 2012, there was a report of medical neglect due to
Ware’s failure to take the twins to scheduled doctor’s appointments.
The court adjudicated the children dependent-neglected in August 2012 and
ordered Ware to complete parenting classes, attend counseling, obtain and maintain stable
housing and employment, obtain a drug and alcohol assessment, and refrain from the use
of alcohol or illegal substances. DHS provided a number of services to Ware, including
visitation, medical services, referral for drug and alcohol assessment, referral for
psychological evaluation, clothing purchases, tutoring referral, referral for counseling,
home visits, and transportation.
In a permanency-planning order filed 23 July 2013, the court found that Ware had
partially complied with the case plan by attending counseling and parenting classes but that
she had not obtained stable housing or income and had not submitted to hair-follicle
testing. The court again ordered her to comply with the requirements of the case plan
and to “submit to a hair follicle test forthwith.” In a review order filed 13 August 2013,
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2014 Ark. App. 467
the court noted that Ware’s hair-follicle test showed a positive result for
methamphetamine and THC.
DHS filed a petition to terminate Ware’s parental rights on 23 August 2013, citing
three statutory grounds for termination: (1) the juveniles have been adjudicated by the
court to be dependent-neglected and have continued to be out of the custody of the
parent for twelve months, and despite meaningful efforts by DHS to rehabilitate the parent
and correct the conditions that caused removal, those conditions have not been remedied;
(2) other factors or issues arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that return of the juveniles to the custody of the
parent is contrary to the juveniles’ health, safety, or welfare and that despite the offer of
appropriate family services, the parent has manifested the incapacity or indifference to
remedy the subsequent issues or factors; (3) the children have been subjected to aggravated
circumstances because there is little likelihood that services to the family will result in
successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), (vii)(a), & (ix)(a)(3)
(Supp. 2011).
After a hearing, the court terminated Ware’s parental rights to her six children.
The court found that the children were likely to be adopted, that the health and safety of
the children would be at risk if returned to the custody of their mother, and that DHS had
proved all three grounds alleged in the petition. Specifically, the court found that
[d]espite the services Monique Ware has tested positive for methamphetamines and
marijuana during the pendency of this action, has not accomplished her case plan
goals, does not consistently take her prescribed medication, has not provided proof
of therapy attendance or psychiatrist attendance, and has refused to tell the
Department or CASA where she is currently living.
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2014 Ark. App. 467
The court also found aggravated circumstances because Ware “has demonstrated a clear
incapacity or inability to remedy the conditions which caused removal.” Ware has timely
appealed from this order.
A circuit court’s order that terminates parental rights must be based on findings
proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2011);
Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and
convincing evidence is proof that will produce, in the fact-finder, a firm conviction on the
allegation sought to be established. Dinkins, supra. On appeal, we will not reverse the
circuit 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 circuit judge to assess the witnesses’ credibility. Id.
In her no-merit brief, Ware’s counsel contends that clear and convincing evidence
supports both the finding of grounds for termination and the finding that termination
would be in the children’s best interest. With regard to best interest, counsel notes
testimony that there were individuals who had expressed a desire to adopt five of the six
children, and the remaining child, M.W., was a fun and healthy seven-year-old who was
highly adoptable. Counsel also cites Ware’s continued drug use, her failure to comply
with the court’s orders, and her failure to address her mental-health issues as evidence of
potential harm to the children.
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2014 Ark. App. 467
Regarding the grounds for termination, Ware’s counsel explains that only one
ground is required to be proved and argues that, in this case, there was clear and
convincing evidence that Ware had manifested the incapacity or indifference to remedy
the subsequent issues or factors that prevented the children from returning to her care.
Counsel notes that Ware was threatened with eviction three times during the circuit-court
case and refused to disclose her current address to DHS; that Ware had been employed at
her current job for only three months; and that she failed to address her mental-health
issues and substance-abuse issues and continued to use illegal drugs. Counsel concludes
that Ware “clearly manifested an indifference to participate in treatment to ensure that her
issues would be addressed in a way to make her a safe and stable parent for her children.”
In addition, counsel has identified the adverse rulings against Ware and explained why
those rulings do not provide meritorious grounds for reversal.
We agree that the circuit court had ample evidence upon which to find that it was
in the children’s best interest for Ware’s rights to be terminated and that statutory grounds
for termination existed. Thus, we grant counsel’s motion to withdraw and affirm the
termination of Ware’s parental rights.
Affirmed; motion to withdraw granted.
WYNNE and GLOVER, JJ., agree.
Dusti Standridge, for appellant.
No response.
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