Cite as 2022 Ark. App. 35 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION II 2023.08.21 09:30:41 -05'00' No. CV-21-342 2023.003.20269 Opinion Delivered January 26, 2022 AMANDA YANCY APPELLANT APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT V. [NO. 66FJV-18-450]
HONORABLE LEIGH ZUERKER, ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES AND MINOR CHILDREN AFFIRMED; MOTION TO APPELLEES WITHDRAW GRANTED
LARRY D. VAUGHT, Judge
Amanda Yancy appeals the Sebastian County Circuit Court’s order terminating her
parental rights to her three children. Yancy’s counsel has filed a motion to withdraw and a no-
merit brief pursuant to our rules and caselaw stating that there are no meritorious grounds to
support an appeal. Ark. Sup. Ct. R. 6-9(j) (2021); Linker-Flores v. Ark. Dep’t of Hum. Servs., 359
Ark. 131, 194 S.W.3d 739 (2004). Our court clerk mailed a certified copy of counsel’s motion
and brief to Amanda’s last-known address informing her of her right to file pro se points for
reversal. Amanda has not filed pro se points for reversal, and the Arkansas Department of
Human Services (DHS) has not filed a brief. We affirm the order terminating Amanda’s
parental rights and grant her counsel’s motion to withdraw.
On November 13, 2018, DHS filed a petition for dependency-neglect with regard to
Amanda’s children: JY (born October 8, 2005), BY (born March 24, 2007), and KY (born September 11, 2009). In the affidavit attached to the petition, DHS alleged that in May 2018,
it opened a protective-services case on the Yancy family after Amanda tested positive for
methamphetamine and marijuana, and the children’s co-guardian, their grandmother Mary
Grace Shelafoe, tested positive for methamphetamine. 1 The circuit court allowed Mary to
retain custody of the children and ordered DHS to provide parenting classes, a drug-and-
alcohol assessment, drug therapy, and random drug screens on Mary. The affidavit further
alleged that during a September protective-services-case hearing, the circuit court heard
testimony that Mary had tested positive for amphetamine and methamphetamine on May 17;
July 12, 24, and 31; and August 20 and 27. The court ordered the children into DHS custody.
The affidavit also alleged that the children would not be safe in the custody of their parents
on the bases of Amanda’s admitted drug use and Johnny Yancy, Jr.’s (the children’s father),
criminal history and prior reports of his neglect and inadequate supervision.
After an adjudication and review hearing, the court entered a March 12 order finding
JY, BY, and KY dependent-neglected due to the parental unfitness of Amanda and Johnny.
The court set the goal of the case as permanent custody with the Shelafoes and focused the
case plan on them by ordering a number of services for them.
Several review hearings followed, and orders were entered on July 2 and October 1,
2019; and January 3, 2020, wherein the court found that DHS was providing services to the
Shelafoes. At a March 12, 2020 review hearing, the circuit court heard testimony about Mary’s
continued drug use. The court thereafter entered an April 9 order finding that the children
1The children’s other co-guardian is their grandfather and Mary’s husband, Roger
Shelafoe.
2 could not return to the Shelafoes’ custody. The court changed the goal to adoption after
termination of the parents’ parental rights and dismissed the Shelafoes from the case.
On April 24, DHS filed a petition to terminate the parental rights of Amanda and
Johnny. Following a termination hearing, the circuit court entered an order on July 24 granting
the petition against Johnny. However, the court found that DHS had failed to provide
meaningful efforts to Amanda, that she did not fail to maintain contact with her children
because of her own actions, and that she had “essentially been ignored during this case.” The
court ordered DHS to make the necessary referrals for Amanda to complete services and
ordered her to obtain and maintain stable and appropriate housing, income, and
transportation; visit her children regularly; submit to a drug-and-alcohol assessment and
complete the recommended treatment; attend a medication-management appointment; submit
to random drug screens and hair-follicle testing as requested by DHS; and complete parenting
classes. The court set concurrent goals of the case: reunification with Amanda and adoption
following termination.
A permanency-planning order was entered on September 29 finding that Amanda had
housing, although it was not her own; she had transportation and a valid driver’s license; she
had employment but “not for a long period of time”; and she had visited her children. The
court also found that she had not completed drug treatment and that her credibility was
questionable because she testified that she had not used illegal drugs in five months, yet a drug
test in June 2020 was positive for methamphetamine and marijuana. The court ordered her to
submit to hair-follicle tests and maintained the goal of reunification.
3 On January 12, 2021, DHS filed a petition for termination of parental rights against
Amanda alleging three grounds: noncustodial failure to remedy, failure to provide significant
material support for the children or to maintain meaningful contact with them, and aggravated
circumstances because there was little likelihood that further services would result in
reunification. DHS also alleged that termination was in the children’s best interest because
they were likely to be adopted, and they would be subject to potential harm if placed with
Amanda.
At the termination hearing, five witnesses testified, including Amanda, and
documentary evidence was introduced. At the conclusion of the evidence, the circuit court
orally granted DHS’s petition, finding that DHS had proved the noncustodial failure-to-
remedy and aggravated-circumstances grounds and that termination was in the children’s best
interest. On May 7, the court entered a written order terminating Amanda’s parental rights,
and Amanda appealed. Her attorney has filed a motion to withdraw along with a no-merit
brief contending that there is no arguable merit for appeal.
In dependency-neglect cases, if after studying the record and researching the law,
appellant’s counsel determines that the appellant has no meritorious basis for appeal, then
counsel may file a no-merit brief and move to withdraw. Ark. Sup. Ct. R. 6-9(j)(1). The brief
must include an argument section that lists all adverse rulings that the parent received at the
circuit court level and explain why each adverse ruling is not a meritorious ground for reversal.
Ark. Sup. Ct. R. 6-9(j)(1)(A). The brief must also include a statement of the case and the facts
containing all rulings adverse to the appealing parent that were made during the hearing from
which the order on appeal arose. Ark. Sup. Ct. R. 6-9(j)(1)(B).
4 One of the adverse rulings in this case is the circuit court’s termination decision. We
review termination-of-parental-rights cases de novo. Williams v. Ark. Dep’t of Hum. Servs., 2021
Ark. App. 386, at 3. An order terminating parental rights must be based on a finding by clear
and convincing evidence that the sought-after termination is in the children’s best interest. Id.
The circuit court must consider the likelihood that the children will be adopted if the parent’s
rights are terminated and the potential harm that could be caused if the children are returned
to a parent. Id. The circuit court must also find that one of the grounds stated in the
termination statute is satisfied. Id. Clear and convincing evidence is that degree of proof that
will produce in the fact-finder a firm conviction that the allegation has been established. Id.
at 3–4. When the burden of proving a disputed fact is by clear and convincing evidence, we
ask whether the circuit court’s finding on the disputed fact is clearly erroneous. Id. at 4. A
finding is clearly erroneous when, although there is evidence to support it, we are left with a
definite and firm conviction that a mistake has been made. Id.
The circuit court found that Amanda had subjected her children to aggravated
circumstances pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A)
(Supp. 2021). Aggravated circumstances, as applied to the case at bar, is defined as a
determination made by a judge that there is little likelihood that services to the family will
result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i).
Amanda’s counsel explains that there is little likelihood that services to Amanda will
result in successful reunification because the evidence demonstrates that she has not complied
sufficiently with the court’s orders or the case plan. For example, Amanda testified that she
had been homeless for years and had secured housing just two months prior to the termination
5 hearing. She said that her landlord did not initially require her to pay the deposit or the full
amount of the rent and that her mother and sister had given her money to help her make the
payments Amanda later made.
Amanda testified that she had been working part time at Stonewall Jackson Inn since
November 2020, but she provided no proof of employment. She claimed that she had been
approved for disability benefits and that payment for that “was fixing to be released”; however,
she failed to present proof of this claim, too. Amanda testified about she owes $8,000 in court
fines and that she owes back child support. The record reflects that her child-support arrearage
is over $16,000. Amanda stated that she purchased a vehicle a month prior to the termination
hearing but did not have a driver’s license because of unpaid fines of $340.
The record also demonstrates that Amanda has not complied with court orders to
participate in drug treatment. While she submitted to drug-and-alcohol assessments on June
30, 2020, and March 10, 2021, she failed to complete the group and individual counseling
sessions recommended in those assessments. 2 And significantly, Amanda tested positive for
marijuana and methamphetamine in a June 25, 2020 drug screen, and she tested positive for
marijuana and methamphetamine in 90-day and 180-day hair-follicle tests administered in
October 2020. Despite evidence of these positive drug tests, Amanda testified at the hearing
that she last used methamphetamine in January 2020.
There was evidence that Amanda had a negative drug test in March 2021. However,
Amanda’s caseworker, Bailey Murray, testified that Amanda knew about the test in advance.
2Amanda also had a drug-and-alcohol assessment in June 2018 as part of the protective-
services case. She failed to attend any of the counseling classes recommended in that assessment.
6 And the circuit court further called this negative result into question because Amanda testified
that she had obtained her medical marijuana card and was smoking marijuana one to two times
a day, yet her March 2021 drug screen was negative for marijuana.
Finally, the evidence shows that Amanda’s relationship with her children is tenuous.
Elise Lundsford, a licensed professional counselor who treated BY and KY from June to
December 2020, testified that she facilitated visits between BY, KY, and Amanda. Elise
testified that early on, KY refused to participate in visitation with Amanda. KY reported that
he did not want to be with Amanda and that he wanted to return to his grandparents, and if
that was not possible, he wanted to be adopted by someone else. Elise testified that BY
participated in visits but was not engaged. BY also stated that she did not want to be with
Amanda; she preferred to be with her grandparents or be adopted. Elise testified that she
ultimately recommended that visitation be discontinued because the children were regressing.
Angela Peters, another counselor for BY and KY, testified that the children did not
want to visit Amanda. Angela testified that the children were attached to one of their foster
parents and to their grandmother.
DHS program assistant Michelle Tenny testified that she supervised the visitation
between BY, KY, and Amanda from October 2020 to January 2021. Michelle testified that BY
and KY were not engaged with Amanda during visits. BY showed no affection toward
Amanda. Michelle said that KY had one visit with Amanda and then refused future visits with
her.
Bailey, the caseworker, confirmed the lack of a bond between BY and KY and Amanda.
Bailey testified that BY and KY want Amanda’s parental rights terminated. Bailey testified that
7 the lack of bond between Amanda and her children, her failure to complete drug treatment,
and her children being in DHS custody for over two years serve as the bases for DHS’s
recommendation that her parental rights be terminated.
In sum, this evidence supports the circuit court’s finding that there is little likelihood
that services to Amanda will result in successful reunification because she has consistently
failed to follow the orders of the court and her case plan. She has refused to attend and
complete three drug-treatment programs: one in the protective-services case and two in the
dependency-neglect case. She has failed to remain drug-free. And she has failed to form a
bond with her children. The efforts Amanda has made in obtaining housing, employment, and
transportation were made at the last minute, required the assistance of her family, and fail to
demonstrate stability or progress. This court has repeatedly held that the children’s “need for
permanency and stability will override [a parent’s] eleventh-hour efforts.” Wright v. Ark. Dep’t
of Hum. Servs., 2019 Ark. App. 263, at 12, 576 S.W.3d 537, 545. A parent’s continued inability
to protect and care for her child and failure to benefit from the services provided demonstrate
little likelihood that further services will result in a successful reunification. Jones v. Ark. Dep’t
of Hum. Servs., 2019 Ark. App. 299, at 8, 578 S.W.3d 312, 317–18. In light of the evidence, we
hold that there is no merit to the appeal of the circuit court’s finding that there was little
likelihood that services to Amanda would result in successful reunification.
Counsel’s no-merit brief also recites facts sufficient to support the circuit court’s best-
interest finding. Caseworker Bailey testified that all three of Amanda’s children are adoptable.
With regard to BY and KY, Bailey stated that they were currently living with a foster family
that was interested in adopting them. Bailey also addressed JY’s intellectual disability and stated
8 that it would not be an obstacle to his adoption. This testimony is more than sufficient
evidence for adoptability under our court’s caselaw. Reed v. Ark. Dep’t of Hum. Servs., 2010 Ark.
App. 416, at 7, 375 S.W.3d 709, 711 (affirming the circuit court’s adoptability finding on the
basis of the caseworker’s testimony that the child was likely to be adopted if the termination
petition was granted); Cobbs v. Ark. Dep’t of Hum. Servs., 87 Ark. App. 188, 199, 189 S.W.3d
487, 493 (2004) (affirming the circuit court’s adoptability finding on the basis of the
caseworker’s testimony that although the children had issues to work through, they could be
adopted).
Amanda’s counsel also explains why returning the children to Amanda’s custody would
subject them to potential harm. As found by the court and demonstrated by the evidence,
Amanda’s children would be at risk of physical and psychological harm because she has
demonstrated no long-term stability despite the children having been in DHS custody over
two years. She was homeless for most of that time, leasing a house just two months prior to
the termination hearing. To secure housing, Amanda required financial help from her mother
and sister. One of a child’s most basic needs is a stable home. Williams, 2021 Ark. App. 386,
at 7.
The record also demonstrates that not only is Amanda’s housing unstable, but so is her
employment and transportation. She has not had either very long, and she relies on others to
pay her current expenses, like rent, and her outstanding fines and debts. Because she lacks a
driver’s license due to unpaid fines, she depends on others for transportation.
Finally, the evidence shows that Amanda’s children have little bond with her—two of
them reported to DHS that they did not want to live with her. She failed to provide any support
9 to her children despite being ordered to do so. She has not completed drug treatment and
failed to convince the circuit court that she worked diligently to try and do so. And she tested
positive for illegal drugs during the case.
In Guardado v. Arkansas Department of Human Services, 2019 Ark. App. 16, at 5–6, 568
S.W.3d 296, 299, this court affirmed the circuit court’s potential-harm finding on the basis of
evidence of the mother’s lack of income and inadequate housing, reliance on others for
financial and transportation support, and unwillingness to comply with the case plan. In
Guardado, we held that the mother’s decisions were clearly against the health, safety, and
welfare of her children. Id. at 6, 568 S.W.3d at 299. Likewise, the evidence in this case supports
the circuit court’s finding that Amanda’s decisions are clearly against the health, safety, and
welfare of her children. Her efforts at stability were insufficient to prevent termination, and
her progression in this case was too little, too late for her to achieve reunification with her
children within a reasonable time from their perspective. Accordingly, we conclude that
counsel has adequately explained why there is sufficient evidence to support the court’s finding
of adoptability and potential harm and why appealing its best-interest determination would be
wholly frivolous.
There is one other adverse ruling that counsel discusses. At the close of DHS’s case, it
offered exhibit 7: certified copies of a criminal information for two counts of theft by receiving
filed against Amanda in 2020 and the resulting sentencing order entered in that case. Amanda’s
counsel objected, asserting it was improper character evidence. The court overruled the
objection, stating that it would be admitted for the purpose of impeachment because “the
mother testified she had no other fines or costs, and then I think contradicted herself.”
10 This court reviews the admission of evidence by the circuit court using an abuse-of-
discretion standard. Ellis v. State, 2012 Ark. 65, at 10, 386 S.W.3d 485, 490. The decision to
admit or exclude evidence is within the sound discretion of the circuit court, and we will not
reverse a court’s decision regarding the admission of evidence absent a manifest abuse of
discretion. Id., 386 S.W.3d at 490.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he or she acted in conformity therewith; however, it may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b) (2021). Evidence
that is offered pursuant to Rule 404(b) must be independently relevant. Holt v. State, 85 Ark.
App. 308, 317, 151 S.W.3d 1, 7 (2004). Evidence is independently relevant if it tends to prove
a material point and is not introduced solely to prove that the defendant is a bad person. Id.,
151 S.W.3d at 7. However, even if independently relevant, evidence of other crimes may still
be excluded if the probative value of that evidence is substantially outweighed by the danger
of unfair prejudice to the defendant. Id., 151 S.W.3d at 7 (citing Ark. R. Evid. 403).
The circuit court expressly stated that it was admitting exhibit 7 not as character
evidence that Amanda had been convicted of two counts of theft by receiving but for
impeachment evidence. In other words, the court admitted exhibit 7 because it was
independently relevant on the issue of Amanda’s credibility, which was a central issue at the
termination hearing. Accordingly, there is no merit to the argument that the circuit court
abused its discretion in admitting exhibit 7.
11 In sum, we hold that Amanda’s counsel has adequately addressed the two adverse
rulings in this case and has complied with both the court rules and the Linker-Flores
requirements for no-merit briefs. Accordingly, we affirm the circuit court’s termination order
and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
GRUBER and MURPHY, JJ., agree.
Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.
One brief only.