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

2015 Ark. App. 546

• Court: Court of Appeals of Arkansas
• Decided: October 7, 2015
• Docket: CV-15-461
• Status: Published

Opinion

Cite as 2015 Ark. App. 546

ARKANSAS COURT OF APPEALS DIVISION I No. CV-15-461

CAROLINE ADAMS Opinion Delivered October 7, 2015 APPELLANT APPEAL FROM THE WASHINGTON V. COUNTY CIRCUIT COURT [NO. J-13-749]

ARKANSAS DEPARTMENT OF HONORABLE STACEY HUMAN SERVICES AND E.F., ZIMMERMAN, JUDGE A MINOR APPELLEES MOTION TO WITHDRAW DENIED WITHOUT PREJUDICE; REBRIEFING ORDERED

RAYMOND R. ABRAMSON, Judge

Caroline Adams appeals from the March 6, 2015 order of the Washington County

Circuit Court terminating her parental rights to her two-year-old daughter, E.F.1 Adams’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 Arkansas Supreme Court Rule 6-9(i),

asserting that there are no issues of arguable merit to support the appeal and requesting to be

relieved as counsel. The motion is accompanied by an abstract and addendum of the lower

court’s proceedings and a brief which explains why none of the trial court’s rulings present

a meritorious ground for appeal.

1 Bobby Frakes is the child’s biological father, and his rights were also terminated on March 6, 2015; however, he is not a party to this appeal. Cite as 2015 Ark. App. 546

The clerk of this court notified Adams that she had the right to file pro se points for

reversal under Arkansas Supreme Court Rule 6-9(i)(3). Adams has filed pro se points, and the

Arkansas Department of Human Services (DHS) has filed a response to her pro se points on

appeal.

In the trial court’s probable cause order entered January 3, 2014, there is an “X” marked

next to the line “provide a copy of the petition, notice of the next scheduled hearing, and advice

of rights under Indian Child Welfare Act by registered mail, return receipt requested, as required

by ICWA to:” It is followed by a handwritten notation that reads “Choctaw Tribe (Mom) and

Cherokee Tribe (Put Father).” However, there is nothing else in the record that clearly indicates

whether the Indian Child Welfare Act was applicable in the instant case, and if so, whether its

heightened scrutiny of termination cases was applied.

In her brief, Adams’s counsel makes no reference to the higher standard that is required

in these types of cases, or if the ICWA guidelines govern here. We therefore deny the motion

to withdraw and order rebriefing to clarify this issue. Because counsel fails to adequately explain

if ICWA is applicable in the instant case, we must require counsel to rebrief this appeal. We do

not direct that the substituted brief be on a merit or no-merit basis, but rather leave that to

counsel’s professional judgment.

We deny counsel’s motion to withdraw and order rebriefing. Counsel shall have fifteen

days from the date of this opinion to file a substituted brief. See Ark. Sup. Ct. R. 4-2(c)(2).

Motion to withdraw denied without prejudice; rebriefing ordered.

2 Cite as 2015 Ark. App. 546

HARRISON and BROWN, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Mischa K. Martin, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.