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

Cite as 2015 Ark. App. 227ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-1086
BILLY SHANNON Opinion Delivered: April 8, 2015
APPELLANT
APPEAL FROM THE SHARP
V. COUNTY CIRCUIT COURT
[NO. JV-2013-88]
ARKANSAS DEPARTMENT
OF HUMAN SERVICES HONORABLE KEVIN NEIL KING,
AND MINOR CHILD JUDGE
APPELLEES
AFFIRMED; MOTION TO BE
RELIEVED AS COUNSEL
GRANTED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s termination of his parental rights to K.S.,
born 8/6/2013.1 Appellant’s counsel has filed a motion to be relieved as counsel 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 has filed
1
The rights of K.S.’s mother, Briah Shannon, were terminated pursuant to the same
order; however, Briah has not appealed the termination of her rights and is not a party to
this appeal.
2
359 Ark. 131, 194 S.W.3d 739 (2003).
3
(2014).
Cite as 2015 Ark. App. 227pro se points, but none are meritorious. We affirm and grant counsel’s motion to be
relieved as counsel.
The Arkansas Child Abuse Hotline received a report on August 6, 2013, that Briah
Shannon, K.S.’s mother, was driving drunk with K.S. in the car; K.S. was not buckled in.
A family-services worker attempted a home visit at the address given on the report, but
did not find Briah or K.S. Briah’s mother, Judy Harbison, was uncooperative in helping
the worker locate Briah and K.S. After contacting Briah’s probation officer, Briah and
K.S. were located at another home where Briah failed a drug test for methamphetamines,
THC, and benzos. Briah was arrested for probation revocation, and a 72-hour hold was
taken on K.S. due to there being no appropriate caretaker for him at the time of Briah’s
arrest.
On August 7, 2013, DHS filed a petition for emergency custody and dependency-
neglect due to abuse, neglect, or parental unfitness. The circuit court entered an ex parte
order for emergency custody on the same date. The court entered a probable-cause order
on August 13, 2013, finding probable cause for K.S.’s removal. Appellant was listed
therein as K.S.’s father. He was appointed counsel. In an adjudication order dated October
1, 2013, the circuit court adjudicated K.S. dependent-neglected. A review order filed
February 11, 2014, states that “Mr. Shannon was provided with a case plan but has not
complied with any task set out in the plan[;] he has not contacted [DHS] and does not
visit.”
On March 17, 2014, DHS filed a motion to terminate reunification services to
both of K.S.’s parents, pursuant to Arkansas Code Annotated section 9-27-365, based on
2
Cite as 2015 Ark. App. 227the ground of “aggravated circumstances.” DHS alleged there was little likelihood that
reunification services provided to the parents would result in successful reunification of
K.S. with his parents. Specifically, K.S. had been placed in a 60-day trial placement with
Briah on February 11, 2014. During a random home visit on February 21, 2014, a family
services worker caught appellant playing with K.S., despite appellant having been
informed that he could not have any unsupervised contact with K.S. until he complied
with the case plan. Appellant had been uncooperative with DHS and refused drug tests.
He refused a drug test on the date of the random home visit. Appellant had been with
K.S. for “several days” according to Briah’s step-father, Frank Harbison. Appellant was
asked to leave the premises and have no contact with K.S. until he could submit a
negative drug screen. The family services worker was informed by Frank that he had not
had contact with Briah in “several days.” Though Briah returned,4 she left again on March
6, 2014, leaving K.S. with Frank and Judy and providing no contact information. K.S. was
brought back into care on March 6, 2014, due to the whereabouts of Briah being
unknown.
In a review order dated April 22, 2014, the circuit court granted DHS’s motion to
terminate reunification services to the parents, finding clear and convincing evidence that
both parents had subjected the child to aggravated circumstances. The court specifically
found that appellant “does not participate in the case plan.” Both parents were permitted
to obtain services on their own and provide documentation thereof. In a permanency-
planning order filed June 10, 2014, the circuit court changed the goal of the case to
4
It is not clear from the record when Briah returned.
3
Cite as 2015 Ark. App. 227adoption with termination of parental rights, noting that the no-reunification-services
order entered on April 22, 2014, had not been appealed.
DHS filed a petition for termination of both parents’ parental rights on July 24,
2014, pursuant to Arkansas Code Annotated 9-27-341, on the grounds that:
1. K.S. had been adjudicated by the court to be dependent-neglected and had
continued out of the home of the mother 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 mother;5
2. 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 appellant is contrary to the juvenile’s health, safety or welfare and that,
despite the offer of appropriate family services, the parents have manifested the
incapacity or indifference to remedy the subsequent issues or factors or
rehabilitate the appellants circumstances which prevent return of the juveniles
to the custody of the parents;6
3. Appellant had constructively abandoned K.S., 7 and
4. Appellant had been found by a court of competent jurisdiction to have
subjected K.S. to aggravated circumstances. 8
In its order terminating appellant’s parental rights and granting DHS authority to
consent to K.S.’s adoption, entered on September 16, 2014, the circuit court found that
termination of appellant’s parental rights was in K.S.’s best interest considering the
5
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2013).
6
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
7
Ark. Code Ann. § 9-27-341(b)(3)(B)(v)(a).
8
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B)(i).
4
Cite as 2015 Ark. App. 227likelihood of him being adopted if the termination petition was granted and the potential
harm to K.S. if returned to appellant’s custody.9 It found that DHS proved all four
grounds asserted in its petition. While present for the initial staffing, appellant only
appeared at the probable-cause hearing and did not appear at any other court hearings,
including the termination hearing.
An order finding appellant indigent was entered on October 7, 2014. 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 the only ruling adverse to appellant,
which was the termination of his parental rights. After carefully examining the record, the
brief, and appellant’s pro se points10 as presented to us, 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 be relieved as counsel.
9
See Ark. Code. Ann. § 9-27-341(b)(3)(A)(i) & (ii).
10
For his pro se points, beyond stating that he loves K.S., appellant denies refusing to
complete the case plan, asserts that he did not attend hearings due to being “[severely]
visually impaired,” and feels like he “was not represented like [he] was supposed to”
though he cited no specific error on his attorney’s part. Appellant admits that he was told
that he had an attorney and was informed who his attorney was. None of appellant’s
arguments were made by his attorney, and he made no argument of ineffective assistance
of counsel to the court below. We have held that even in termination cases, we will not
address issues raised for the first time on appeal. Tuck v. Ark. Dep’t of Human Servs., 2014
Ark. App. 468, at 7, 442 S.W.3d 20, 24 (citing McElroy v. Ark. Dep’t of Human Servs.,
2014 Ark. App. 117, 432 S.W.3d 109). Furthermore, Arkansas appellate courts will not
consider a claim of ineffective assistance of counsel as a point on appeal unless it was first
raised in the trial court. Calahan v. Ark. Dep’t of Human Servs., 2013 Ark. App. 508, at 9,
429 S.W.3d 372, 377 (citing Weaver v. Ark. Dep’t of Human Servs., 2011 Ark. App. 680).
5
Cite as 2015 Ark. App. 227Affirmed; motion to be relieved as counsel granted.
GRUBER and WHITEAKER, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect
Appellate Division, for appellant.
No response.
6