Gossett v. Arkansas Department of Human Services

374 S.W.3d 205, 2010 Ark. App. 240, 2010 Ark. App. LEXIS 228
CourtCourt of Appeals of Arkansas
DecidedMarch 10, 2010
DocketNo. CA 09-1224
StatusPublished
Cited by33 cases

This text of 374 S.W.3d 205 (Gossett 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
Gossett v. Arkansas Department of Human Services, 374 S.W.3d 205, 2010 Ark. App. 240, 2010 Ark. App. LEXIS 228 (Ark. Ct. App. 2010).

Opinion

DAVID M. GLOVER, Judge.

I iln an order entered August 25, 2009, the Craighead County Circuit Court terminated the parental rights of appellant, Tammy Gossett, to her son, D.M., whose date of birth is December 6, 2007. Ms. Gossett’s appellate counsel has moved to withdraw from this case and has filed a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004) and Supreme Court and Court of Appeals Rule 6 — 9(i), asserting that there are no issues that would support a meritorious appeal. Pursuant to Rule 6-9, the court clerk has mailed to appellant a copy of her counsel’s motion and brief, informing her of her right to file pro se points for reversal. She has not done so. |aWe affirm the termination of Ms. Gossett’s parental rights and grant counsel’s motion to withdraw.

Procedural Background

This case can probably best be summarized by the trial court’s conclusion that, although appellant’s love for her child is obvious, she is not able to take care of herself, much less her child. D.M. was born on December 6, 2007, and the petition for emergency custody was filed on December 11, 2007, based upon allegations that appellant was naked in her hospital room, with her stepfather and the newborn present, and that she yelled at the newborn to shut up because the baby would not stop crying, telling the nurse that she did not know what else to do. An order for emergency custody was filed on December 11, 2007, and the probable-cause order was filed on December 13, 2007. Following a hearing, the trial court entered its adjudication order, finding the child dependent-neglected, removing the child to DHS custody, and setting a goal of reunification. The order set forth the court’s expectations of the mother. On April 29, 2008, the child’s court-appointed attorney ad litem filed a motion for an order to terminate reunification services. A no-reunification hearing was held on September 22, 2008, but the trial court found partial compliance by appellant and continued the reunification goal. The court noted that appellant was not able to maintain contact with her caseworker because she was incarcerated at the time. Review hearings were held throughout this period.

A permanency-planning hearing was held on December 9, 2008, and the resulting order was filed on March 18, 2009. The goal of reunification was continued but a concurrent | ¡¡goal of termination was also set, with a decision on that goal deferred until the next hearing. The next hearing in this case was the fifteen-month review hearing; the resulting order determined that return of the child to appellant was contrary to his best interests and changed the goal to termination and adoption. The order contained typographical errors, which the trial court subsequently corrected to show that DHS had complied with the case plan, making reasonable efforts to deliver reunification services, and that appellant had not complied with the plan and the court’s orders.

On May 1, 2009, DHS filed a petition to terminate appellant’s parental rights, alleging that the child had been adjudicated dependent-neglected and had been out of appellant’s custody for twelve months or more, and that despite meaningful efforts to correct the conditions that caused removal, appellant had not remedied those circumstances. In addition, DHS alleged that appellant had failed to obtain stable housing, that she did not have adequate income to support the child, that she did not attend counseling regularly or take her medication, and that she did not have transportation and did not make use of available public transportation. Finally, DHS alleged that other factors had arisen since the original petition had been filed, which also demonstrated that return of the child was contrary to his best interests and that appellant had demonstrated an incapacity or indifference to remedying those subsequent conditions. On May 9, 2009, appellant filed a petition for permanent relative custody, seeking placement with the child’s maternal aunt if custody was not to be returned to appellant. In answering the petition for termination, appellant asserted a constitutional challenge to Arkansas Code Annotated section 9-27-341, as applied, on due-process grounds.

|4The termination hearing was held on July 21, 2009. DHS presented evidence of the services that had been provided to appellant under the case plan, and appellant testified in defense of no termination. In its resulting order, the trial court determined that, by clear and convincing evidence, DHS had proved that appellant’s parental rights should be terminated. The trial court also denied appellant’s petition for alternative relative custody. Appellant made no further constitutional argument at the hearing; no ruling was obtained. The termination order was entered on August 25, 2009, and the notice of appeal was filed on September 1, 2009.

Standard of Review

As explained in Smith v. Arkansas Department of Health & Human Services, 100 Ark. App. 74, 81, 264 S.W.3d 559, 564 (2007):

Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007). Grounds for termination of parental rights must be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was proven 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. Id.

In Emmert v. Arkansas Department of Human Services, 2010 Ark. App. 128, 374 S.W.3d 104, 106, we further explained:

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. |s§ 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). The purpose of terminating a parent’s rights to his or her child is to provide permanency in the child’s life where returning the juvenile to the family home is contrary to the child’s health, safety, or welfare, and it appears that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. Ark.Code Ann.

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Bluebook (online)
374 S.W.3d 205, 2010 Ark. App. 240, 2010 Ark. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gossett-v-arkansas-department-of-human-services-arkctapp-2010.