Jami Meyerpeter v. Arkansas Department of Human Services and Minor Child

2024 Ark. App. 462

• Court: Court of Appeals of Arkansas
• Decided: September 25, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 462 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-24-132

Opinion Delivered September 25, 2024 JAMI MEYERPETER APPELLANT APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT V. [NO. 26JV-22-263]

ARKANSAS DEPARTMENT OF HUMAN HONORABLE LYNN WILLIAMS, JUDGE SERVICES AND MINOR CHILD APPELLEES AFFIRMED; MOTION TO WITHDRAW GRANTED

WAYMOND M. BROWN, Judge

Counsel for appellant Jami Meyerpeter brings this no-merit appeal from the Garland County

Circuit Court’s order terminating Meyerpeter’s parental rights to her son, Minor Child (MC).1

Pursuant to Linker-Flores v. Arkansas Department of Human Services2 and Arkansas Supreme Court Rule

6-9(j), Meyerpeter’s counsel has filed a motion to withdraw and a no-merit brief contending that

there are no issues of arguable merit that would support an appeal. The clerk of this court mailed a

certified copy of counsel’s brief and motion to be relieved to Meyerpeter, informing her of her right

to file pro se points for reversal under Arkansas Supreme Court Rule 6–9(j)(2), which she has elected

1 Brandon “Nathaniel” Folsom’s parental rights to MC were also terminated; however, he is not a party to this appeal. 2 359 Ark. 131, 194 S.W.3d 739 (2004). to do. We affirm the termination of Meyerpeter’s parental rights and grant counsel’s motion to

withdraw.

The Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on

MC on September 12, 2022, shortly after his birth, following Meyerpeter’s positive test result for

amphetamines and MC’s exhibiting withdrawal symptoms. The affidavit attached to the petition for

dependency-neglect provided that DHS had a history with the family—Meyerpeter’s parental rights

to two other children had previously been terminated due to her drug use.

An ex parte order for emergency custody was entered on September 15 placing MC in DHS’s

custody and finding that removal from Meyerpeter’s custody was in MC’s best interest and necessary

to protect his health and safety. The circuit court found that DHS had been involved with the family

since October 10, 2019, and that, despite services provided to the family, the services did not prevent

removal because Meyerpeter continued to abuse illegal substances. The court further found that the

efforts made to prevent MC’s removal were reasonable in light of the family’s and the juvenile’s

needs.

An agreed probable-cause order was entered on September 26. Meyerpeter stipulated that

there was probable cause that the emergency conditions that existed at the time of removal continued

to exist such that it was in MC’s best interest to remain in DHS’s custody. On October 6, DHS filed

a motion to terminate reunification services, stating that MC was subjected to aggravated

circumstances, and there was little likelihood that services to the family would result in successful

reunification due to Meyerpeter’s history of noncompliance with DHS and the termination of her

parental rights to MC’s siblings.

2 An agreed adjudication order was entered on November 3. The circuit court found MC

dependent-neglected; he was at substantial risk of serious harm due to parental unfitness because of

Meyerpeter’s substance abuse. The case goal was set as reunification with a fit and proper parent

with a concurrent plan of adoption. Meyerpeter was ordered to follow the case plan; participate in

and attend all visitations; complete parenting classes; schedule and keep all appointments; obtain and

maintain a safe, suitable, and appropriate home; maintain an environment free from illegal substances

and other health and safety hazards; obtain and maintain adequate income; request transportation

assistance from DHS forty-eight hours in advance; participate in any service requested by DHS;

maintain consistent contact with MC; demonstrate stability and the ability to provide for the health,

safety, and welfare of MC; maintain consistent contact with DHS; and keep DHS informed of her

current address. DHS agreed to voluntarily dismiss the motion to terminate reunification services.

An agreed review order was entered on February 9, 2023. Meyerpeter was found partially

compliant with the case plan. She had completed parenting classes, and a hair-follicle test revealed

that she was negative for all illegal substances. However, Meyerpeter was not employed and failed

to attend counseling. MC was ordered to remain in the custody of DHS, noting safety concerns that

prevented placement with Meyerpeter—-specifically, her need to complete a psychological

evaluation and follow its recommendations, attend counseling, and complete additional parenting

classes. The goal of the case remained reunification with a fit and proper parent. The circuit court

found that DHS complied with the case plan and made reasonable efforts to provide family services

and to finalize a permanency plan.

Another review hearing was held on May 17. Meyerpeter was found to be not compliant

with the case plan. Although she was employed, she tested positive for methamphetamine on May 2

3 and admitted she had been using drugs off and on for the past few months. Meyerpeter was currently

not participating in a drug-treatment program.

The circuit court entered a permanency-planning order on September 5. Meyerpeter was

again found not to be compliant with the case plan because she continued to abuse illegal substances.

The court found that she had not made significant, measurable progress on the case plan. The goal

of the case was changed to adoption.

DHS filed a petition for termination of parental rights on September 19 alleging two statutory

grounds for termination: the failure-to-remedy ground and the involuntary-termination ground.

Following the November 29 termination-of-parental-rights hearing, Meyerpeter’s parental rights to

MC were terminated. The termination order was entered on December 11, 2023.

This court reviews termination-of-parental-rights cases de novo.3 Grounds for termination

of parental rights must be proved by clear and convincing evidence, which is that degree of proof that

will produce in the finder of fact a firm conviction of the allegation sought to be established. 4 The

appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and

convincing evidence is clearly erroneous.5 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

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

4 Tillman v. Ark. Dep’t of Hum. Servs., 2015 Ark. App. 119. 5 Id.

4 conviction that a mistake has been made. 6 In determining whether a finding is clearly erroneous, we

give due regard to the opportunity of the circuit court to judge the credibility of witnesses. 7

Arkansas Supreme Court Rule 6-9(j)(1) allows counsel for an appellant in a termination-of-

parental-rights case to file a no-merit petition and motion to withdraw if, after studying the record

and researching the law, counsel determines that the appellant has no meritorious basis for appeal.

The petition must include an argument section that lists 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.8 In

evaluating a no-merit brief, we determine whether the appeal is wholly frivolous or whether there

are any issues of arguable merit.9

To terminate parental rights, a circuit court must find by clear and convincing evidence that

one or more of the statutory grounds for termination exists.10 Proof of only one statutory ground is

sufficient to terminate parental rights.11 The circuit court must also 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

6 Id.

7 Id. 8 Ark. Sup. Ct. R. 6-9(j)(1)(A).

9 Cullum v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 34.

10 Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2023). 11 Tillman, supra.

5 harm, specifically addressing the effect on the health and safety of the child, caused by returning the

child to the custody of the parent.12

In her no-merit brief, counsel argues that any challenge to the statutory grounds for

termination of Meyerpeter’s parental rights would be wholly frivolous. Here, the circuit court

terminated Meyerpeter’s parental rights to MC on two grounds: the failure-to-remedy ground and

the involuntary-termination ground. Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(4)

permits the termination of parental rights if the court finds that the parent has had his or her parental

rights involuntarily terminated as to another child. Counsel explains and the record reflects that

Meyerpeter’s parental rights were previously terminated to two of MC’s siblings, thus meeting the

requirements of the involuntary-termination ground.

Counsel further explains that evidence presented at the termination hearing also supports the

circuit court’s best-interest finding. DHS adoption specialist, Susan Miller testified that there are

281 potential adoption matches for MC and that MC’s current foster care placement is interested in

adopting him. A caseworker’s testimony that a child is adoptable is sufficient to support an

adoptability finding.13

As for potential harm, the circuit court found there had been no substantial changes in

Meyerpeter’s situation since MC’s removal and that her behavior during the case is an indication that

she would not appropriately care for MC if he was placed back in her care. When considering

12 Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). 13 Cole v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 121, 543 S.W.3d 540.

6 potential harm, a court may treat past behavior as a predictor of future behavior. 14 Here, Meyerpeter

waited a year into the case before entering inpatient treatment; she testified at the hearing that she

was currently in a residential treatment program and could not provide an end date. Meyerpeter

also admitted that she was still using drugs less than three months before the termination hearing but

that she had been clean and sober “a little over two months.” At the termination hearing, the circuit

court also found there was no proof of employment or a proper home and no plan for how to care

for MC. We have held that continued drug use and instability demonstrate potential harm sufficient

to support a best-interest finding in a termination-of-parental-rights case.15 Thus, counsel contends,

and we agree, that there can be no meritorious challenge to the circuit court’s best-interest finding.

Counsel has reviewed the record for all rulings adverse to Meyerpeter made by the circuit

court on all objections, motions, and requests made by her at the termination hearing. Counsel states

that the only adverse ruling, other than the termination itself, was the circuit court’s denial of a final

visit between Meyerpeter and MC. Any decision to grant a final-visit request is within the circuit

court’s discretion.16 Further, in custody, visitation, or dependency-neglect matters, the State and

the circuit courts have a duty to protect the best interest of the child. 17 Here, Meyerpeter offered

no argument to support her request for a final visit. Further, the attorney ad litem objected to a last

visit, arguing that it would not be beneficial to fourteen-month-old MC since it had already been

14 Gonzalez v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 425, 555 S.W.3d 915. 15 Jordan v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 344, 652 S.W.3d 611. 16 See Best v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 485, 611 S.W.3d 690. 17 See Ark. Dep’t of Hum. Servs. v. Cole, 2011 Ark. 145, 380 S.W.3d 429.

7 three months since he last saw Meyerpeter. We cannot say that the circuit court abused its discretion

in denying Meyerpeter’s unsupported request for a final visit following the termination of her

parental rights to MC.

Meyerpeter submitted pro se points on appeal. In her argument for reversal, she contends

she is “a very good mother” and “did all the right things” to achieve reunification. She states that

much of what was presented in court were “flat out lies,” there were biased opinions against her

stemming from her prior case and the termination of her parental rights to two other children, and

MC was in no danger due to her drug use because she functions “normally in society.” Meyerpeter’s

attempt to minimize the detrimental effect of her long-term drug use is troubling. Additionally, her

arguments are essentially a request to reweigh the evidence, which we do not do. 18 Credibility

determinations are left to the circuit court. 19 To the extent that Meyerpeter disputes the evidence

and states that she can “provide proof” of her drug-test results and participation in rehabilitation and

counseling, we note that the time to present such evidence and proof is at the termination hearing.

As to her claim that she received ineffective assistance of counsel and that DHS mishandled her case,

she failed to raise the arguments below and is barred from raising those arguments for the first time

on appeal.20 Thus, Meyerpeter’s pro se points provide no meritorious grounds for reversal.

Having carefully examined the record and counsel’s brief, we conclude that counsel has

complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in

18 Newman v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 207, 489 S.W.3d 186. 19 Id. 20 Vasquez v. Ark. Dep’t of Hum. Servs., 2009 Ark. App. 575, 337 S.W.3d 552.

8 termination cases and that the appeal is wholly without merit. Accordingly, we affirm the

termination of Meyerpeter’s parental rights to MC and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

ABRAMSON and KLAPPENBACH, JJ., agree.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Demarcus D. Tave, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.