Cite as 2019 Ark. App. 446 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.08.03 14:10:13 DIVISION IV -05'00' No. CV-19-459 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 16, 2019 DANIELLE MARIE COGBURN APPELLANT APPEAL FROM THE CLARK V. COUNTY CIRCUIT COURT [NO. 10JV-18-1] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN HONORABLE BLAKE BATSON, APPELLEES JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED
RITA W. GRUBER, Chief Judge
Counsel for Danielle Marie Cogburn brings this no-merit appeal from the Clark
County Circuit Court’s order terminating her parental rights to KRC (born August 11,
2010); RRC (born August 11, 2010); and RD (born May 7, 2012). 1 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), her 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 sole adverse ruling was the termination. Counsel has also
filed a motion asking to be relieved. The clerk of this court sent a copy of the brief and
motion to be relieved to appellant, informing her that she had the right to file pro se points
1 The court’s order also terminated the parental rights of the children’s father, Roy Ray Cogburn, Jr., but he is not a party to this appeal. for reversal under Arkansas Supreme Court Rule 6-9(i)(3), which she has filed. We grant
counsel’s motion to withdraw and affirm the termination order.
Termination of parental rights is a two-step process requiring a determination that
the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark.
Dep’t of Human Servs., 2016 Ark. App. 227, at 2, 491 S.W.3d 153, 155. The first step requires
proof of one or more statutory grounds for termination; the second step, the best-interest
analysis, includes consideration of the likelihood that the child will be adopted and of the
potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-
27-341(b)(3)(B), (A) (Supp. 2017). Each step requires proof by clear and convincing
evidence, which is the degree of proof that will produce in the finder of fact a firm
conviction regarding the allegation sought to be established. Id. Our review is de
novo. Dunbar v. Ark. Dep’t of Human Servs., 2016 Ark. App. 472, at 9, 503 S.W.3d 821,
827. The appellate inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is 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. Norton v.
Ark. Dep’t of Human Servs., 2017 Ark. App. 285, at 2. In resolving the clearly erroneous
question, the reviewing court defers to the circuit court because of its superior opportunity
to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep’t of
Human Servs., 2015 Ark. 356, at 7.
Appellant’s children were taken into custody by the Arkansas Department of Human
Services (DHS) on December 27, 2017, after protective services failed to remedy the
2 situation. When the investigator first made contact with appellant, she stumbled up the stairs
and could not, or would not, follow instructions of law enforcement. She tested positive for
methamphetamine, amphetamines, benzos, and THC. The family did not have appropriate
housing, and there were no utilities turned on despite the freezing weather conditions. The
children were dirty, unfed, and did not have appropriate clothing.
On February 5, 2018, pursuant to stipulation, the circuit court adjudicated the
children dependent-neglected due to neglect and parental unfitness and set a goal of
reunification. Appellant did not attend either of the three-month or six-month review
hearings, and the court specifically found after both hearings that appellant had failed to
comply with the case plan, had not participated in parenting classes or counseling, had not
visited the children, had not submitted proof of employment, had not secured housing fit
for the children, and had continued to test positive for drugs. After a hearing on September
10, 2018, the court entered an order adopting a new permanency plan and terminating
reunification services, finding that there was little likelihood that services to the family would
result in successful reunification. The court found that appellant continued to use drugs; had
no housing, transportation, or employment; and had not proactively worked to remedy the
safety issues that prevented reunification. Appellant testified that she thought she had her
substance-abuse issues under control, so she had refused recommended inpatient treatment.
The court changed the goal of the case to termination and adoption.
After a termination hearing on February 4, 2019, the court entered an order
terminating appellant’s parental rights. Counsel adequately explains why there is sufficient
evidence to support the court’s termination decision. The circuit court found that appellant
3 had subjected the children to aggravated circumstances in that there was little likelihood that
further services to the family would result in reunification. Ark. Code Ann. § 9-27-
341(b)(3)(B)(ix)(a). Testimony at the hearing indicated that after the goal of the case was
changed to adoption at the September 2018 hearing, appellant moved to Mountain Home
and began making efforts to comply with the case plan. She began counseling, parenting
classes, babysitting, and going to church. She also testified that she had been off drugs since
the September hearing. She had lived with her boyfriend until a week before the
termination hearing, and neither of them had a valid driver’s license. Although the court
recognized her last-minute efforts, the court found that termination was still in the best
interest of the children. See Henderson v. Ark. Dep’t of Human Servs., 2010 Ark. App. 191, at
9, 377 S.W.3d 362, 367 (holding that eleventh-hour compliance does not have to be
credited by the circuit court and does not outweigh prior noncompliance). The court
specifically found that the children are adoptable, in part as a result of the adoption specialist’s
testimony about the number of potential matches. The court also found the children would
be subject to potential harm if returned to appellant due to her failure to acknowledge the
gravity of her mental-health and substance-abuse issues. The court found she had
demonstrated a persistent instability regarding housing and financial responsibility. We agree
with counsel that there is no meritorious basis upon which to argue that the circuit court’s
decision to terminate appellant’s parental rights was clearly erroneous.
Appellant argues in her pro se points that she has changed her life since moving to
Mountain Home. She argues that the DHS caseworker “lied” on the stand that she knew
anything about appellant’s new life. She also stated that her children were “being sold” for
Free access — add to your briefcase to read the full text and ask questions with AI
Cite as 2019 Ark. App. 446 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.08.03 14:10:13 DIVISION IV -05'00' No. CV-19-459 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 16, 2019 DANIELLE MARIE COGBURN APPELLANT APPEAL FROM THE CLARK V. COUNTY CIRCUIT COURT [NO. 10JV-18-1] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN HONORABLE BLAKE BATSON, APPELLEES JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED
RITA W. GRUBER, Chief Judge
Counsel for Danielle Marie Cogburn brings this no-merit appeal from the Clark
County Circuit Court’s order terminating her parental rights to KRC (born August 11,
2010); RRC (born August 11, 2010); and RD (born May 7, 2012). 1 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), her 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 sole adverse ruling was the termination. Counsel has also
filed a motion asking to be relieved. The clerk of this court sent a copy of the brief and
motion to be relieved to appellant, informing her that she had the right to file pro se points
1 The court’s order also terminated the parental rights of the children’s father, Roy Ray Cogburn, Jr., but he is not a party to this appeal. for reversal under Arkansas Supreme Court Rule 6-9(i)(3), which she has filed. We grant
counsel’s motion to withdraw and affirm the termination order.
Termination of parental rights is a two-step process requiring a determination that
the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark.
Dep’t of Human Servs., 2016 Ark. App. 227, at 2, 491 S.W.3d 153, 155. The first step requires
proof of one or more statutory grounds for termination; the second step, the best-interest
analysis, includes consideration of the likelihood that the child will be adopted and of the
potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-
27-341(b)(3)(B), (A) (Supp. 2017). Each step requires proof by clear and convincing
evidence, which is the degree of proof that will produce in the finder of fact a firm
conviction regarding the allegation sought to be established. Id. Our review is de
novo. Dunbar v. Ark. Dep’t of Human Servs., 2016 Ark. App. 472, at 9, 503 S.W.3d 821,
827. The appellate inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is 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. Norton v.
Ark. Dep’t of Human Servs., 2017 Ark. App. 285, at 2. In resolving the clearly erroneous
question, the reviewing court defers to the circuit court because of its superior opportunity
to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep’t of
Human Servs., 2015 Ark. 356, at 7.
Appellant’s children were taken into custody by the Arkansas Department of Human
Services (DHS) on December 27, 2017, after protective services failed to remedy the
2 situation. When the investigator first made contact with appellant, she stumbled up the stairs
and could not, or would not, follow instructions of law enforcement. She tested positive for
methamphetamine, amphetamines, benzos, and THC. The family did not have appropriate
housing, and there were no utilities turned on despite the freezing weather conditions. The
children were dirty, unfed, and did not have appropriate clothing.
On February 5, 2018, pursuant to stipulation, the circuit court adjudicated the
children dependent-neglected due to neglect and parental unfitness and set a goal of
reunification. Appellant did not attend either of the three-month or six-month review
hearings, and the court specifically found after both hearings that appellant had failed to
comply with the case plan, had not participated in parenting classes or counseling, had not
visited the children, had not submitted proof of employment, had not secured housing fit
for the children, and had continued to test positive for drugs. After a hearing on September
10, 2018, the court entered an order adopting a new permanency plan and terminating
reunification services, finding that there was little likelihood that services to the family would
result in successful reunification. The court found that appellant continued to use drugs; had
no housing, transportation, or employment; and had not proactively worked to remedy the
safety issues that prevented reunification. Appellant testified that she thought she had her
substance-abuse issues under control, so she had refused recommended inpatient treatment.
The court changed the goal of the case to termination and adoption.
After a termination hearing on February 4, 2019, the court entered an order
terminating appellant’s parental rights. Counsel adequately explains why there is sufficient
evidence to support the court’s termination decision. The circuit court found that appellant
3 had subjected the children to aggravated circumstances in that there was little likelihood that
further services to the family would result in reunification. Ark. Code Ann. § 9-27-
341(b)(3)(B)(ix)(a). Testimony at the hearing indicated that after the goal of the case was
changed to adoption at the September 2018 hearing, appellant moved to Mountain Home
and began making efforts to comply with the case plan. She began counseling, parenting
classes, babysitting, and going to church. She also testified that she had been off drugs since
the September hearing. She had lived with her boyfriend until a week before the
termination hearing, and neither of them had a valid driver’s license. Although the court
recognized her last-minute efforts, the court found that termination was still in the best
interest of the children. See Henderson v. Ark. Dep’t of Human Servs., 2010 Ark. App. 191, at
9, 377 S.W.3d 362, 367 (holding that eleventh-hour compliance does not have to be
credited by the circuit court and does not outweigh prior noncompliance). The court
specifically found that the children are adoptable, in part as a result of the adoption specialist’s
testimony about the number of potential matches. The court also found the children would
be subject to potential harm if returned to appellant due to her failure to acknowledge the
gravity of her mental-health and substance-abuse issues. The court found she had
demonstrated a persistent instability regarding housing and financial responsibility. We agree
with counsel that there is no meritorious basis upon which to argue that the circuit court’s
decision to terminate appellant’s parental rights was clearly erroneous.
Appellant argues in her pro se points that she has changed her life since moving to
Mountain Home. She argues that the DHS caseworker “lied” on the stand that she knew
anything about appellant’s new life. She also stated that her children were “being sold” for
4 human trafficking and that DHS did not want to lose her children or the money they were
making from them. Finally, she claimed that she had to beg DHS for help to complete her
case plan and that they had refused to help her. We agree with DHS and the attorney ad
litem that these are new arguments; thus, she is barred from raising them here. Westbrook v.
Ark. Dep’t of Human Servs., 2019 Ark. App. 352, at 5, 584 S.W.3d 258, 261. We also
recognize that appellant’s arguments ignore the order terminating reunification services in
September 2018 for her complete failure to comply with the case plan or orders of the court
despite the reasonable efforts of DHS to provide services. Moreover, we will not reweigh
the evidence on appeal or second-guess the circuit court’s credibility determinations. Id.
Based on our examination of the record and the brief presented to us, we have
determined that counsel has complied with the requirements established by the Arkansas
Supreme Court for no-merit appeals in termination cases, and we hold that the appeal is
wholly without merit. Accordingly, we affirm the termination order and grant counsel’s
motion to withdraw.
Affirmed; motion to withdraw granted.
HARRISON and MURPHY, JJ., agree.
Pamela Fisk, for appellant.
Anna Imbeau, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.