B.M. v. Arkansas Dep't of Human Servs.

2015 Ark. App. 283

• Court: Court of Appeals of Arkansas
• Decided: April 29, 2015
• Docket: CV-14-1113
• Status: Published

Opinion

Cite as 2015 Ark. App. 283

ARKANSAS COURT OF APPEALS DIVISION I No. CV-14-1113

B.M. Opinion Delivered APRIL 29, 2015 APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV-13-827] ARKANSAS DEPARTMENT OF HUMAN SERVICES HONORABLE WILEY A. BRANTON, APPELLEE JR., JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

CLIFF HOOFMAN, Judge

Appellant B.M. appeals from the order of the Pulaski County Circuit Court

terminating her parental rights to her daughter, K.M. Appellant’s attorney has filed a no-

merit brief and a motion to withdraw as counsel pursuant to Rule 6-9(i) of the Rules of the

Arkansas Supreme Court and Linker-Flores v. Arkansas Department of Human Services, 359 Ark.

131, 194 S.W.3d 739 (2004). The clerk of this court mailed a certified copy of counsel’s

motion and brief to appellant, informing her of her right to file pro se points for reversal, but

no such points have been filed.1 We grant counsel’s motion to withdraw and affirm the

termination order.

Appellant was thirteen years old when she became pregnant with K.M. (DOB

1 When the first certified packet mailed to appellant was returned, her counsel obtained an updated address. A second packet mailed to this new address was also returned, marked “No Such Number.” Counsel has no additional contact information for appellant. Cite as 2015 Ark. App. 283

7/15/12). K.M.’s father, Vanoy Green, who was twenty-one years old at the time, was

convicted of statutory rape of appellant and sentenced to a twenty-year term of imprisonment

in Texas. The Arkansas Department of Human Services (DHS) became involved with

appellant’s family in November 2012 after appellant was adjudicated delinquent due to a

domestic battery against her mother, Kristil Mitchell. Appellant violated the conditions of her

probation in February 2013, and she was placed in juvenile detention, followed by a

residential-treatment program at Youth Home. K.M. initially remained in the custody of

appellant’s mother, Kristil; however, despite the fact that services were offered to the family

to prevent removal, DHS eventually exercised a seventy-two-hour hold of K.M. on April 25,

2013, due to Kristil’s unfitness and inadequate housing.

Both appellant and K.M. were adjudicated dependent-neglected on July 11, 2013, as

a result of parental unfitness. The circuit court found that appellant was an unfit parent, partly

based on her family history of instability, and noted that, although the court had previously

attempted to release her from detention, appellant did not comply with the court’s directives.

The court stated that appellant’s behavior was out of control, that she was sexually

promiscuous, and that she would not follow rules or directives; thus, the court ordered that

she remain in a residential facility. The circuit court set the goal of K.M.’s case as

reunification, ordered that appellant complete residential treatment and follow the

recommendations upon discharge, and ordered supervised visitation with K.M. The court

warned appellant that she had one year to work toward reunification with her daughter and

that after one year, the court would have to consider alternative means of achieving

2 Cite as 2015 Ark. App. 283

permanency for K.M. unless there were compelling reasons to continue with reunification

efforts. The court stated that for it to find such compelling reasons, appellant would have to

make significant, measurable progress, and there would have to be a likelihood that

reunification could occur within a time period of a few months.

A permanency-planning hearing was held on February 11, 2014. The circuit court

continued the goal of reunification, stating that it would give appellant the full statutory time

period of one year to make herself a fit and appropriate parent. The court found that the

toxicity of appellant’s parents was a concern because it had caused appellant to have

dysfunction of her own. The court noted that it was concerned about K.M. also being

negatively affected if she were to be returned to appellant’s custody. The court found that

appellant “still had a long way to go” and that she needed to show maturity and “step up to

the plate.” The court was disturbed by appellant’s desire to maintain a relationship with

Green, noting that she had been corresponding with Green’s sister via Facebook. The court

found that any relationship between the Green family and appellant or K.M. was

inappropriate and that appellant needed to demonstrate to the court that Green was out of the

picture.

Another permanency-planning hearing was held on April 29, 2014, after K.M. had

been out of appellant’s custody for one year. The circuit court found that there were issues

with appellant’s trustworthiness and credibility because she had been dishonest when she

initially testified at the hearing that she had not continued to have contact with Green’s family

and that she did not know where her mother was living. After considering her history and

3 Cite as 2015 Ark. App. 283

track record, the court found that there were no compelling reasons to give appellant more

time to pursue reunification and authorized DHS to file a petition for termination of parental

rights. The court noted that termination was not a foregone conclusion and continued

services to appellant; however, the court reiterated its concerns about appellant’s credibility

and her real intentions regarding Green. Thus, the court advised appellant that she needed

to address her issues and also achieve the highest level possible at Youth Home.

On May 20, 2014, DHS filed a petition to terminate appellant’s and Green’s parental

rights to K.M. As grounds for termination with regard to appellant, DHS alleged (1) that

K.M. had been adjudicated dependent-neglected and remained out of the home for more than

twelve months and that the parents had failed to remedy the conditions causing removal; (2)

that subsequent to the filing of the original petition for dependency-neglect, other factors or

issues arose that demonstrated that return of K.M. to the custody of the parents was contrary

to the child’s health, safety, or welfare and that, despite the offer of appropriate family services,

the parents had manifested the incapacity or indifference to remedy the subsequent issues or

factors or rehabilitate the parents’ circumstances that prevent return of the child to the custody

of the parents; and (3) that the parent is found by the court to have subjected the child to

aggravated circumstances.

The termination hearing was held on July 29, 2014. Deborah Penny, appellant’s

therapist at Youth Home, testified that she had worked with appellant since October 2013,

when appellant was admitted to the residential-treatment program. Penny stated that

appellant had made significant progress during treatment, that she had attained the highest

4 Cite as 2015 Ark. App. 283

level possible at Youth Home, and that she was ready to be discharged from the program.

Penny indicated that appellant had demonstrated increased maturity and consequential

thinking skills, including her understanding that contact with her family or with Green could

jeopardize her having custody of K.M. According to Penny, appellant had a good prognosis,

although she would continue to need structure in a step-down facility. Penny stated that she

had discussed the possibility of K.M.’s being placed with appellant in a therapeutic foster

home, although one had not yet been identified. Penny indicated that it could take

approximately thirty to ninety days for appellant to adapt to her new environment and for

K.M. to be gradually integrated into the home. In response to the court’s concerns about

appellant’s continued contact with Green, Penny agreed that this had been an issue as recently

as the last court hearing and that it was only since the goal had been changed to termination

that appellant had attempted to comply with the court’s directives in this regard. Although

Penny opined that, due to her progress, appellant’s parental rights should not be terminated,

Penny agreed that she was qualified to testify as to what was best only for appellant, not K.M.

Toni Hansberry, the DHS caseworker for the family, agreed with Penny that appellant

should be given more time to demonstrate that she can be an appropriate parent to K.M.

because she had not been given an opportunity to do so during the case. Hansberry indicated

that she was hoping to find a therapeutic foster home for appellant, where after a period of

transition and additional visitation, K.M. could be placed with her. According to Hansberry,

the supervised visits between appellant and K.M. had gone well, although she noted that

K.M.’s foster parent had expressed concern over how appellant was taking care of the child

5 Cite as 2015 Ark. App. 283

as recently as April. When the court asked Hansberry how much additional time appellant

would need for reunification to occur, Hansberry indicated that appellant, who was sixteen

years old at the time of the hearing, would have to be at least eighteen years old, have stable

employment and housing, and demonstrate appropriate parenting skills. Hansberry agreed

that it was appellant’s fault that she had been placed in a detention facility and had remained

there for twenty months. She further agreed that K.M. had not lived with appellant since she

was four or five months old. Hansberry testified that K.M. was adoptable and that DHS

would have no problem finding an adoptive home for her.

Appellant testified that she had purposely not had contact with Green or his family

since May 2014 because she did not want her parental rights terminated. She did testify,

however, that she did not think that what Green did to her was wrong because it was

consensual. She also indicated that it was not wrong for a twenty-one-year-old to have sex

with a thirteen-year-old, although she would not allow her daughter to do so. Appellant

further stated that she thought it would be good for K.M. to know Green’s family. She

requested that the court give her more time to work toward reunification with K.M. and

testified that she could learn how to be a parent if given the chance to live in the same home

with her child.

After extensively discussing the history of the case and all the evidence presented, the

circuit court found that there was clear and convincing evidence to support the termination

of appellant’s parental rights on all three grounds alleged with respect to appellant in the

petition. The court further found that termination was in K.M.’s best interest, specifically

6 Cite as 2015 Ark. App. 283

considering K.M.’s adoptability and the potential harm to her health and safety if custody

were to be returned to appellant. The termination order was entered on October 1, 2014,

and appellant timely appealed from this order.2 Appellant’s counsel has filed a no-merit brief

pursuant to Arkansas Supreme Court Rule 6-9(i) (2014), alleging that there are no issues of

arguable merit for appeal.

The first adverse ruling discussed by counsel is the order granting the petition for

termination. A trial court’s order terminating parental rights must be based upon findings

proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2013);

Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and

convincing evidence is defined as that degree of proof that will produce in the fact-finder a

firm conviction as to the allegation sought to be established. Dinkins, supra. On appeal, the

appellate court will not reverse the trial 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 trial court to judge the

credibility of witnesses. Id.

Pursuant to Arkansas Code Annotated section 9-27-341(b)(3), an order terminating

parental rights shall be based upon a finding by clear and convincing evidence that it is in the

2 The circuit court also terminated Green’s parental rights in this order; however, he is not a party to this appeal.

7 Cite as 2015 Ark. App. 283

best interest of the juvenile, including consideration of the likelihood of adoption and the

potential harm, specifically addressing the effect on the health and safety of the child, caused

by continuing contact with the parent. The order terminating parental rights also must be

based on a showing of clear and convincing evidence as to one or more of the grounds for

termination listed in section 9-27-341(b)(3)(B).

While the circuit court’s order in this case found clear and convincing evidence to

support all three grounds alleged in the termination petition that were pertinent to appellant,

only one ground must be proved to support termination. Lee v. Ark. Dep’t of Human Servs.,

102 Ark. App. 337, 285 S.W.3d 277 (2008). Counsel therefore discusses only the subsequent-

factors ground for termination, asserting that any argument as to this ground on appeal would

be wholly frivolous.

We agree with counsel that there was sufficient evidence presented to support the

termination of appellant’s parental rights based on the subsequent-factors ground found in

Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). As support for its finding on this

ground for termination, the circuit court noted appellant’s slow response to efforts at

treatment, her prior deceitfulness and lack of credibility with the court, and the fact that she

still wanted K.M. to have access to and know the Green family despite the fact that Green had

been convicted of raping her. The court found that, based on all of these factors, there were

no compelling reasons to delay permanency for K.M. The circuit court was not clearly

erroneous in finding that termination was warranted based on this evidence, which

demonstrated that appellant was incapable of remedying the issues that prevented the return

8 Cite as 2015 Ark. App. 283

of K.M. within a reasonable period of time as viewed from the child’s perspective. See Ark.

Code Ann. § 9-27-341(a)(3) (Supp. 2013). Thus, there would be no merit to an appeal on

this issue.

There was also clear and convincing evidence to support the circuit court’s finding that

it was in K.M.’s best interest for termination to occur. The court found that two-year-old

K.M. was adoptable based on the testimony of Hansberry that there would be no problem

finding an adoptive home for the child. The court also found that there would be potential

harm to K.M.’s health, safety, and welfare if she were to be returned to appellant’s custody

based on appellant’s lack of credibility and trustworthiness regarding whether she would

contact the Green family in the future. This finding was supported by appellant’s own

testimony at the termination hearing that she did not think that what Green did to her was

wrong and that she thought it would be good for K.M. to know the Green family. The court

thus found that it was highly probable that K.M. would be exposed to family dysfunction if

returned to appellant’s custody.

While the court was sympathetic to the fact that appellant is a young mother and

recognized that she had made recent progress in the case, the circuit court found that her

“eleventh-hour efforts” should not be given much weight, especially considering her

“significant and material credibility issues.” As the circuit court noted, a parent’s overtures

toward complying with the case plan and court orders following the permanency-planning

hearing and prior to the termination hearing are an insufficient reason not to terminate

parental rights. Ark. Code Ann. § 9-27-341(a)(4)(A) (Supp. 2013). The court also

9 Cite as 2015 Ark. App. 283

recognized that it might be in appellant’s best interest to have her daughter returned;

however, the court stated that it was charged with the responsibility to decide what was in

K.M.’s best interest, not appellant’s. Given the evidence presented in this case, the circuit

court’s finding that it was in K.M.’s best interest to terminate appellant’s parental rights was

not clearly erroneous, and there would be no merit to an appeal on this basis.

As counsel discusses in her brief, there were two additional rulings adverse to appellant

during the termination hearing, when the attorney ad litem objected to leading questions

asked of appellant by her trial counsel regarding whether (1) appellant’s mother was a good

role model and (2) appellant’s real motivation for her recent avoidance of the Green family.

Both of these objections were sustained by the circuit court. There would be no merit to an

appeal challenging either of these rulings, as the circuit court did not abuse its discretion in

not allowing leading questions during direct examination, and there was also no prejudice to

appellant based on the other evidence that was admitted regarding her family history and her

intentions toward the Green family. See Blakes v. Ark. Dep’t of Human Servs., 2010 Ark. App.

379, 374 S.W.3d 898.

Based on our review of the record and the brief submitted, we conclude that counsel

has complied with Ark. Sup. Ct. R. 6-9(i) and agree that the appeal is without merit.

Therefore, we affirm the termination order and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

VAUGHT and BROWN, JJ., agree.

Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect

Appellate Division, for appellant.

No response.