Emmert v. Arkansas Department of Human Services

374 S.W.3d 104, 2010 Ark. App. 128, 2010 Ark. App. LEXIS 124
CourtCourt of Appeals of Arkansas
DecidedFebruary 11, 2010
DocketNo. CA 09-944
StatusPublished
Cited by1 cases

This text of 374 S.W.3d 104 (Emmert v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emmert v. Arkansas Department of Human Services, 374 S.W.3d 104, 2010 Ark. App. 128, 2010 Ark. App. LEXIS 124 (Ark. Ct. App. 2010).

Opinion

JOHN B. ROBBINS, Judge.

[, The Fulton County Circuit Court terminated appellant Jennifer Emmert’s parental rights to her children A.N., J.N., Ke.E., and S.E., ages 8, 7, 6, and 5, respectively, on May 21, 2009. On June 9, 2009, the trial court terminated Mrs. Emmert’s parental rights to her six-month-old son, Ka.E. Mrs. Emmert has timely appealed from both termination orders.

Mrs. Emmert’s appellate counsel has filed a motion to withdraw and a no-merit brief pursuant to Linker-Flores v. Arkansas Dep’t of Human Sens., 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6 — 9(i) (2009). The brief explains why the termination decisions and the only other adverse ruling at the termination hearing cannot support a meritorious appeal. The clerk of this court mailed a copy of counsel’s motion and brief to Mrs. Emmert, informing her of her right to file pro se points for reversal. 12Mrs. Emmert has filed no pro se points. Because we agree that the appeal is wholly without merit, we affirm the termination orders and grant appellant’s counsel’s motion to withdraw.

This case originated on July 19, 2004, when appellee Arkansas Department of Human Services (DHS) took an emergency hold of S.E. due to medical neglect. The trial court subsequently entered an order of emergency custody placing S.E. with DHS, and on September 14, 2004, S.E. was found by the trial court to be dependent/neglected. Several months later, Mrs. Emmert and her husband, Gary Em-mert, regained custody of S.E. pursuant to an order of the trial court. The DHS case remained open, with orders that the Em-merts cooperate with DHS and comply with the case plan. Mr. Emmert is the father of appellant’s three youngest children, and while his parental rights were also ultimately terminated, he is not a party to this appeal.

On May 18, 2005, the trial court entered a review order finding that neither parent had substantially complied with the case plan. Throughout the next year, only partial compliance was obtained and the trial court entered progressively detailed orders, which included directions to maintain stable housing and employment. On April 26, 2006, the trial court entered an order of emergency custody removing A.N., J.N., Ke.E., and S.E. from Mrs. Emmert’s custody and placing the children with DHS. Emergency custody was awarded based on information that Mrs. Emmert had reported depression, frequent crying, and hearing voices that she could not quiet telling her, “can’t you make these kids shut up.” On May 16, 2006, the trial court entered an order adjudicating A.N., J.N., and Ke.E. | sdependent/neglected. In the adjudication order, the trial court found that neither parent had shown any willingness to be employed and provide income for the family, that the home environment had been unstable with the family moving from place to place, that Mrs. Emmert hears voices raising concerns that she might harm the children, and that the parents do not seem to be able to understand what is required of them to meet their children’s basic needs.

On December 1, 2006, the trial court permitted Mrs. Emmert to have visits with S.E. at her home at the discretion of DHS, with frequent DHS monitoring. Subsequent orders were entered wherein the trial court found that Mrs. Emmert was in noncompliance with the case plan and that the condition of the home was life-threatening to the children, citing examples such as knives and medications being left within reach of the children. The children remained in DHS custody, and on January 13, 2009, just seven weeks after Ka.E. was born, the trial court entered an order placing Ka.E. in emergency DHS custody. Emergency custody was premised on credible allegations that Mr. Emmert had sexually abused Mrs. Emmert’s five-year-old half-sister, and that Mrs. Emmert knew about the allegations but took no steps to protect her infant child. Ka.E. was adjudicated dependent/neglected on February 23, 2009.

On February 25, 2009, DHS filed a petition for termination of Mrs. Emmert’s rights to all five of her children. After a hearing held on March 20, 2009, the trial court issued its orders terminating Mrs. Emmert’s parental rights.

|4Adoption specialist Amanda Clark testified at the termination hearing. Ms. Clark gave the opinion that all five children are adoptable, and that thirteen families had been identified as candidates willing to adopt them. Mrs. Clark stated that there was a strong likelihood of successful placement.

Heather Robertson is a manager at a Bullseye store where Mrs. Emmert was briefly employed. Ms. Robertson indicated that Mrs. Emmert’s employment was terminated because she was caught stealing cigarettes from the store. Ms. Robertson further testified that Mrs. Emmert would cash a child-support check at the store every week, even when the children were not in her custody, and that the money was used for things such as liquor and lottery tickets.

Mrs. Emmert testified on her own behalf, and she admitted receiving child support when she was not entitled to it and to claiming her children as dependents on her tax return even though they had been in DHS custody the majority of the time. Mrs. Emmert indicated that she recently split with Mr. Emmert and has no plans to reunite with him because she wants to get her children back. Mrs. Emmert gave a sporadic history of employment at various places, and acknowledged difficulty keeping current on her utilities. She has lived in seven different homes since the DHS case was opened in 2004.

Ashley Johnson was the case worker assigned to Mrs. Emmert’s case. Ms. Johnson maintained that DHS had provided services and made reasonable efforts to return the children to their parents, and that she personally fought hard for the parents to keep their children. |fiHowever, she stated that Mrs. Emmert has not demonstrated a willingness to provide a stable home for the children on a consistent basis. Ms. Johnson stated that there were problems with the home containing dangerous objects, and that there was an ongoing problem with keeping utilities connected. Ms. Johnson testified that despite the efforts by DHS, Mrs. Emmert continues to make bad choices that put her children at risk. Ms. Johnson stated that she has nothing left to offer Mrs. Emmert, and thought that there are no services that are likely to reunify Mrs. Emmert with her children. She further stated that the children need permanency and that “enough is enough.” Ms. Johnson gave the opinion that the return of the children to Mrs. Emmert’s home would be contrary to their health, safety, and welfare, and she recommended termination of parental rights.

An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest. Ark.Code Ann. § 9-27-341(b)(3)(A) (Repl.2008). Factors to consider in determining best interest are the likelihood of adoption and potential harm caused by returning the child to the custody of the parent. Id. Additionally, DHS must prove at least one statutory ground for termination by clear and convincing evidence. Ark.Code Ann. § 9-27-341(b)(3)(B) (Repl.2008).

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Bluebook (online)
374 S.W.3d 104, 2010 Ark. App. 128, 2010 Ark. App. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emmert-v-arkansas-department-of-human-services-arkctapp-2010.