Brooklyn Holt v. Arkansas Department of Human Services and Minor Child

2020 Ark. App. 170

• Court: Court of Appeals of Arkansas
• Decided: March 11, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 170 Reason: I attest to the accuracy and integrity of this document Date: 2021-06-21 14:28:03 ARKANSAS COURT OF APPEALS Foxit PhantomPDF Version: DIVISION II 9.7.5 No. CV-19-773

BROOKLYN HOLT OPINION DELIVERED: MARCH 11, 2020 APPELLANT APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT V. [NO. 36JV-18-14]

HONORABLE KEN D. COKER, JR., ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES AND MINOR CHILD AFFIRMED; MOTION TO APPELLEES WITHDRAW GRANTED

ROBERT J. GLADWIN, Judge

In this no-merit appeal, Brooklyn Holt’s parental rights to her child, TM, born

February 11, 2018, were terminated in the Johnson County Circuit Court on July 1, 2019.

Holt filed a timely notice of appeal on July 22, and her appellate counsel filed a motion to

withdraw. 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) (2019), counsel has filed

a no-merit brief setting forth all adverse rulings from the termination hearing and asserting

that there are no issues that would support a meritorious appeal. The clerk of this court sent

a copy of the brief and motion to withdraw to Holt, informing her that she had the right to

file pro se points for reversal under Rule 6-9(i)(3), which she has filed. We grant counsel’s

motion to withdraw and affirm the termination-of-parental-rights (TPR) order. I. Facts

On February 15, 2018, a few days after TM’s birth, appellee Arkansas Department

of Human Services (DHS) filed a petition for emergency custody and dependency-neglect

with an attached affidavit that alleged Holt had tested positive for THC when TM was born

and that TM’s urine had tested positive for AMP and THC. Less than twenty-four hours

later, Holt tested positive for amphetamine, methamphetamine, OxyContin, and THC. 1

DHS interviewed Holt, who stated that she planned to return to her trailer with TM and

continue to live there with Tyler Marlow, TM’s father. 2 She said that the trailer did not

have running water. Holt claimed that Marlow had changed since his imprisonment for

severe domestic violence toward her. Holt stated that she had lost custody of her daughter,

KM, born July 1, 2015, due to severe domestic violence in the home.3 She said that Marlow

had broken both of her wrists, dislocated her shoulder, burned her with a soldering iron,

punched her in the face, and kicked her all over her body. She said Marlow had thrown a

hammer and hit her in the back of the head and attempted to throw a toaster in the bathtub

in an attempt to kill her. Despite describing Marlow as “crazy,” she felt it would be unfair

to keep him away from his son, TM.

1 The nursing staff stated that Holt was taking OxyContin for pain control after delivery. 2 Marlow’s parental rights to TM were also terminated in the July 1, 2019 order, but he is not included in this appeal. 3 Holt’s and Marlow’s parental rights to KM were terminated by order filed January 25, 2017.

2 A probable-cause order was filed on February 26, and it was found that TM should

remain in DHS custody. Holt was ordered to (1) submit to random drug screens; (2) attend

parenting classes; (3) obtain and maintain stable housing and employment; and (4) submit

to a psychological evaluation and a drug-and-alcohol assessment and follow any

recommendations. Holt was granted supervised visitation contingent on drug screening.

TM was adjudicated dependent-neglected by order filed April 17. The goal of the

case was reunification, and Holt’s orders remained unchanged. Holt did not attend the

review hearing held on June 5, and the court found that neither parent had complied with

the court’s orders or case plan. Holt’s living situation was unknown, and she was ordered

to complete inpatient/outpatient drug treatment.

A February 28, 2019 permanency-planning order states that Holt appeared at the

hearing on January 15, and the circuit court changed the goal of the case to adoption with

DHS to file a TPR petition. The court noted that Holt had made some progress and,

although incarcerated at that point, appeared to be making a renewed effort toward working

services available to her. However, she had not made significant and measurable progress

under the case plan, and she did not appear poised to achieve reunification in a time frame

consistent with TM’s best interest, viewed from TM’s perspective. Reunification services

were ordered to continue.

DHS filed a TPR petition on March 20, and DHS alleged the following grounds

against Holt: (1) “failure to remedy,” Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp.

2019); (2) “subsequent factors,” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii); and (3)

“aggravated circumstances,” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A)–(B)(i). DHS

3 amended its petition to include as grounds against both parents that their parental rights had

been involuntarily terminated as to TM’s sibling, KM. Ark. Code Ann. § 9-27-

341(b)(3)(B)(ix)(a).

Holt did not appear at the June 18 termination hearing. DHS caseworker Ashley

Elam testified that Holt was unemployed and had been throughout the case, had moved

sporadically, and had been incarcerated during the case. Elam said that Holt never

completed a psychological evaluation as ordered nor did she complete counseling as

recommended; however, when Holt was incarcerated, she completed her GED, parenting

classes, and outpatient drug treatment, and she was baptized. Elam testified that Holt was

released from prison on May 7, 2019, and she tested positive for amphetamines and

methamphetamine on June 13, 2019. Elam said that Holt did not attend visitation on a

regular basis and that Holt does not have a bond with TM. Elam testified that TM would

likely be adopted if parental rights were terminated and that his foster parents are interested

in adopting him. Elam said that DHS supported termination and that it was in TM’s best

interest because his parents could not provide him a safe, stable environment.

Lyndon Reece, executive director of Proving Grounds, testified that Holt had been

a client who attended classes on substance abuse. He said Holt was supposed to be inpatient

for ninety days, but she got to her thirty-day mark and left after having worked the assigned

job for one week. He said that she quit the program two weeks before the TPR hearing.

Holt told Reece that she had gone back to Marlow and that she had relapsed.

Lisa McDaniel, a supervisor for the Division of Children and Family Services,

testified that Holt disclosed to her the history of violence that she had with Marlow.

4 McDaniel said that despite this history, Holt felt like Marlow should be given the

opportunity to see his son. McDaniel was concerned to learn that Holt was having contact

with Marlow again.

Pursuant to the grounds alleged by DHS, the circuit court granted DHS’s petition

for TPR. Holt filed a notice of appeal, and her counsel filed a motion to withdraw and a

no-merit brief.

II. Standard of Review

We review termination-of-parental-rights cases de novo. Hune v. Ark. Dep’t of

Human Servs., 2010 Ark. App. 543. We will not reverse the circuit court’s ruling unless its

findings are clearly erroneous. Holmes v. Ark. Dep’t of Human Servs., 2016 Ark. App. 495,

505 S.W.3d 730.

In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). The order terminating parental rights must also 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). However, only one ground must be proved to support termination. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918.

The intent behind the termination-of-parental-rights statute is to provide permanency in a child’s life when it is not possible to return the child to the family home because it is contrary to the child’s health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Cobb v. Ark. Dep’t of Human Servs., 2017 Ark. App. 85, 512 S.W.3d 694. Moreover, a child’s need for permanency and stability may override a parent’s request for additional time to improve the parent’s circumstances. Id. Finally, a parent’s past behavior is often a good indicator of future behavior. Id.

5 Westbrook v. Ark. Dep’t of Human Servs., 2019 Ark. App. 504, at 6–8.

III. TPR

Pursuant to Rule 6-9, appellant’s counsel may file a no-merit petition and move to

withdraw in dependency-neglect cases if, after studying the record and researching the law,

counsel determines that the appellant has no meritorious basis for appeal. Ark. Sup. Ct. R.

6-9(i)(1). The argument section of the petition shall list all adverse rulings to the appellant

made by the circuit court on all objections, motions, and requests made by the party at the

hearing from which the appeal arose and explain why each adverse ruling is not a

meritorious ground for reversal. Ark. Sup. Ct. R. 6-9(i)(1)(A). The abstract and addendum

shall contain all rulings adverse to the appellant, made by the circuit court at the hearing

from which the order of appeal arose. Ark. Sup. Ct. R. 6-9(i)(1)(B).

In counsel’s no-merit brief, counsel correctly asserts that there can be no meritorious

challenge to the sufficiency of the evidence to support the termination of Holt’s parental

rights. Although the circuit court found several statutory grounds for termination, only one

ground is necessary to support TPR. See Reid, supra. It is indisputable that Arkansas Code

Annotated section 9-27-341(b)(3)(B)(ix)(a)(4)—aggravated circumstances due to a prior

involuntary termination—was demonstrated. The prior involuntary termination of Holt’s

parental rights was a specific finding by the circuit court in the current case supporting TPR

to TM, and the order of termination regarding TM’s sibling was introduced as evidence.

Counsel also claims that termination was in TM’s best interest. There was

uncontroverted evidence that TM was likely to be adopted if parental rights were

terminated—the caseworker testified that TM is adoptable and that the foster parents were

6 interested in adopting him. Reed v. Ark. Dep’t of Human Servs., 2010 Ark. App. 416, 375

S.W.3d 709. Likewise, DHS produced evidence of potential harm. Holt’s failure to

complete the case plan and follow the court’s orders, her continued drug use, her failure to

appear at the final hearing, and her resumption of the relationship with her abusive boyfriend

are good indicators of future behavior and demonstrate potential harm. See, e.g., Schaible v.

Ark. Dep’t of Human Servs., 2014 Ark. App. 541, 444 S.W.3d 366. Accordingly, the circuit

court’s finding that TPR was in TM’s best interest was not clearly erroneous.

IV. Pro Se Points for Reversal

Holt filed pro se points for reversal generally arguing that she is entitled to have her

son back. She claims that because she was incarcerated for nearly the entire time the case

was pending, she was prevented from bonding with her child. She states that she has made

mistakes but that no one is perfect. She claims that she thought she was doing what was

best by trying to reconcile with TM’s father, Marlow. She now sees that her history with

Marlow alone was enough to prevent the courts from wanting to “give her a chance.” She

asserts that she deserves to have her son, that she no longer has any contact with Marlow,

and that she has wanted only to be a mom her whole life. She does not blame the courts,

but she states that DHS “threw it in her face” that it was too late to get her child back. She

admits that she chose Marlow over KM but claims she will never do that again. She asserts

that the abusive relationship with Marlow caused her to make mistakes and that she loves

TM. Finally, she claims that she did not go to court “on the last day” because she was being

held hostage. She asserts that she is going to a halfway house in Pine Bluff and is allowed

to have her child there.

7 DHS argues that there is no merit to an appeal and rests on the no-merit brief. We

hold that Holt’s argument is a request for this court to reweigh the evidence. This court

does not act as a super fact-finder or second-guess the circuit court’s credibility

determinations. Lynch v. Ark. Dep’t of Human Servs., 2012 Ark. App. 149.

After having carefully examined the record, the brief, and Holt’s pro se points, we

hold that counsel has complied with the requirements established by the Arkansas Supreme

Court for no-merit appeals in TPR cases, and we conclude that the appeal is wholly without

merit. Accordingly, we affirm the order terminating Holt’s parental rights and grant

counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

ABRAMSON and BROWN, JJ., agree.

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

Kimberly Boling Bibb, attorney ad litem for minor child.