Cite as 2019 Ark. App. 415 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.26 10:41:22 -05'00' DIVISION II Adobe Acrobat version: No. CV-19-339 2022.001.20169 Opinion Delivered: September 25, 2019 JESSICA BEAIRD APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, TENTH DIVISION ARKANSAS DEPARTMENT OF [NO. 60JV-18-85] HUMAN SERVICES AND MINOR CHILD HONORABLE JOYCE WILLIAMS APPELLEES WARREN, JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED
PHILLIP T. WHITEAKER, Judge
Jessica Beaird appeals a Pulaski County Circuit Court order terminating her parental
rights to her infant son, D.B. 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)
(2018), Beaird’s counsel has filed a motion to be relieved as counsel and a no-merit brief
asserting that there are no issues of arguable merit to support an appeal. The clerk of our
court sent copies of the brief and the motion to withdraw to Beaird informing her of her
right to file pro se points for reversal pursuant to Rule 6-9(i)(3); she has not done so.
Counsel’s brief contains an abstract and addendum of the proceedings below and
states that the only ruling adverse to Beaird was the termination of her parental rights.
Counsel asserts that there was sufficient evidence to support the termination. See Linker-
1 In the initial petition for ex parte emergency custody and dependency-neglect, the child was identified as TB. Flores, supra; Ark. Sup. Ct. R. 6-9(i). We agree that there are no issues of arguable merit
on which to base an appeal. We provide the following summary of facts and procedural
history in support of our conclusion.
Beaird gave birth to D.B. in January 2018. At the time of delivery, Beaird tested
positive for amphetamines. D.B.’s urine was negative, but a subsequent meconium test was
positive for illegal substances. Beaird denied drug usage but had outbursts at the hospital
and would not cooperate with hospital staff. The hospital contacted the Arkansas
Department of Human Services (DHS). DHS attempted to set up a team decision-making
meeting with Beaird at the hospital, but she refused to cooperate. The DHS caseworker
also attempted several times to contact the child’s father, Clifton Beaird, 2 but was unable to
do so. DHS then exercised a seventy-two-hour hold on newborn D.B. and initiated a
dependency-neglect proceeding in the circuit court.
At the probable-cause hearing, the court was informed of Beaird’s previous contact
with DHS. Beaird had been involved with DHS on four separate occasions. Two of those
occurrences took place in 2007 and 2015 and involved allegations of newborns testing
positive for illegal substances. Both of those cases resulted in the termination of her parental
rights.
At the adjudication hearing, Beaird stipulated that D.B.’s dependency-neglect was
based on neglect (Garrett’s law) and parental unfitness by the mother, because the juvenile
2 Clifton Beaird consented to the termination of his parental rights; therefore, he is not a party to this appeal, and the facts as they relate to him have not been included except to the extent they relate to the termination of the mother’s rights.
2 tested positive for amphetamines and methamphetamine at the time of his birth. The trial
court adjudicated D.B. dependent-neglected on the basis of this stipulation and the results
of the child’s meconium test, which were positive for illegal substances. Of significance,
the court found, on the basis of the mother’s testimony at the hearing, that she was not
being honest with the court and was not credible when she testified about her previous drug
usage. Nevertheless, the court set the goal as reunification and directed DHS to provide
reunification services to Beaird.
Subsequently, the court conducted additional hearings and made findings concerning
Beaird’s compliance with the case plan and court orders. In particular, the court found that
DHS had provided appropriate services but found that Beaird had only partially complied.
Despite the provision of appropriate services, Beaird had tested positive on a drug screen,
had possibly tampered with the results of other drug screens, had not entered or completed
inpatient substance-abuse treatment, and had not submitted to a hair-shaft drug test or other
drug screens when directed by DHS. Additionally, the court noted that Beaird was no longer
employed and had stopped going to counseling for a time. While she had visited with the
juvenile, she exhibited inappropriate behavior during some of the visits. 3 The court found
that she had not demonstrated any progress toward the goals of the case plan and had made
minimal progress toward alleviating or mitigating the causes of the child’s removal.
3 The court heard testimony that Beaird had cursed and threatened DHS staff; that during some visits she had been aggressive, agitated, and angry; and that she had fallen asleep during others. She also gave three-month-old D.B. inappropriate food items during a visit.
3 In September 2018, DHS and the attorney ad litem (AAL) filed a joint petition for
termination of parental rights alleging three grounds for termination: (1) subsequent other
factors; (2) aggravated circumstances—little likelihood of successful reunification; and (3)
prior involuntary termination. The court conducted a termination hearing in January 2019.
After the hearing, the trial court entered an order terminating Beaird’s parental rights on
two statutory grounds for termination: subsequent other factors and prior involuntary
termination. 4 The court further found that it was in D.B.’s best interest to terminate Beaird’s
parental rights, noting that D.B. had been in DHS custody for all but two days of his life,
that Beaird had not done the things that would be necessary for her to be a fit parent and
have the child returned to her, and that D.B. is adoptable.
We review termination-of-parental-rights orders de novo but will not reverse the
trial court’s findings of fact unless they are clearly erroneous. Harjo v. Ark. Dep’t of Human
Servs., 2018 Ark. App. 268, 548 S.W.3d 865. A finding is clearly erroneous when, although
there is evidence to support it, the appellate court is left on the entire evidence with the
firm conviction that a mistake has been made. Id. We must defer to the superior position of
the trial court to weigh the credibility of the witnesses. Ewasiuk v. Ark. Dep’t of Human
Servs., 2018 Ark. App. 59, 540 S.W.3d 318. On appellate review, this court gives a high
degree of deference to the trial court, which is in a far superior position to observe the
parties before it. Id. Termination of parental rights is an extreme remedy and in derogation
4 The court erroneously identifies this ground as an “aggravated circumstances” ground. This ground is a separate ground, however, and does not fall under the purview of aggravated circumstances under the statute.
4 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. Id.
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Cite as 2019 Ark. App. 415 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.26 10:41:22 -05'00' DIVISION II Adobe Acrobat version: No. CV-19-339 2022.001.20169 Opinion Delivered: September 25, 2019 JESSICA BEAIRD APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, TENTH DIVISION ARKANSAS DEPARTMENT OF [NO. 60JV-18-85] HUMAN SERVICES AND MINOR CHILD HONORABLE JOYCE WILLIAMS APPELLEES WARREN, JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED
PHILLIP T. WHITEAKER, Judge
Jessica Beaird appeals a Pulaski County Circuit Court order terminating her parental
rights to her infant son, D.B. 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)
(2018), Beaird’s counsel has filed a motion to be relieved as counsel and a no-merit brief
asserting that there are no issues of arguable merit to support an appeal. The clerk of our
court sent copies of the brief and the motion to withdraw to Beaird informing her of her
right to file pro se points for reversal pursuant to Rule 6-9(i)(3); she has not done so.
Counsel’s brief contains an abstract and addendum of the proceedings below and
states that the only ruling adverse to Beaird was the termination of her parental rights.
Counsel asserts that there was sufficient evidence to support the termination. See Linker-
1 In the initial petition for ex parte emergency custody and dependency-neglect, the child was identified as TB. Flores, supra; Ark. Sup. Ct. R. 6-9(i). We agree that there are no issues of arguable merit
on which to base an appeal. We provide the following summary of facts and procedural
history in support of our conclusion.
Beaird gave birth to D.B. in January 2018. At the time of delivery, Beaird tested
positive for amphetamines. D.B.’s urine was negative, but a subsequent meconium test was
positive for illegal substances. Beaird denied drug usage but had outbursts at the hospital
and would not cooperate with hospital staff. The hospital contacted the Arkansas
Department of Human Services (DHS). DHS attempted to set up a team decision-making
meeting with Beaird at the hospital, but she refused to cooperate. The DHS caseworker
also attempted several times to contact the child’s father, Clifton Beaird, 2 but was unable to
do so. DHS then exercised a seventy-two-hour hold on newborn D.B. and initiated a
dependency-neglect proceeding in the circuit court.
At the probable-cause hearing, the court was informed of Beaird’s previous contact
with DHS. Beaird had been involved with DHS on four separate occasions. Two of those
occurrences took place in 2007 and 2015 and involved allegations of newborns testing
positive for illegal substances. Both of those cases resulted in the termination of her parental
rights.
At the adjudication hearing, Beaird stipulated that D.B.’s dependency-neglect was
based on neglect (Garrett’s law) and parental unfitness by the mother, because the juvenile
2 Clifton Beaird consented to the termination of his parental rights; therefore, he is not a party to this appeal, and the facts as they relate to him have not been included except to the extent they relate to the termination of the mother’s rights.
2 tested positive for amphetamines and methamphetamine at the time of his birth. The trial
court adjudicated D.B. dependent-neglected on the basis of this stipulation and the results
of the child’s meconium test, which were positive for illegal substances. Of significance,
the court found, on the basis of the mother’s testimony at the hearing, that she was not
being honest with the court and was not credible when she testified about her previous drug
usage. Nevertheless, the court set the goal as reunification and directed DHS to provide
reunification services to Beaird.
Subsequently, the court conducted additional hearings and made findings concerning
Beaird’s compliance with the case plan and court orders. In particular, the court found that
DHS had provided appropriate services but found that Beaird had only partially complied.
Despite the provision of appropriate services, Beaird had tested positive on a drug screen,
had possibly tampered with the results of other drug screens, had not entered or completed
inpatient substance-abuse treatment, and had not submitted to a hair-shaft drug test or other
drug screens when directed by DHS. Additionally, the court noted that Beaird was no longer
employed and had stopped going to counseling for a time. While she had visited with the
juvenile, she exhibited inappropriate behavior during some of the visits. 3 The court found
that she had not demonstrated any progress toward the goals of the case plan and had made
minimal progress toward alleviating or mitigating the causes of the child’s removal.
3 The court heard testimony that Beaird had cursed and threatened DHS staff; that during some visits she had been aggressive, agitated, and angry; and that she had fallen asleep during others. She also gave three-month-old D.B. inappropriate food items during a visit.
3 In September 2018, DHS and the attorney ad litem (AAL) filed a joint petition for
termination of parental rights alleging three grounds for termination: (1) subsequent other
factors; (2) aggravated circumstances—little likelihood of successful reunification; and (3)
prior involuntary termination. The court conducted a termination hearing in January 2019.
After the hearing, the trial court entered an order terminating Beaird’s parental rights on
two statutory grounds for termination: subsequent other factors and prior involuntary
termination. 4 The court further found that it was in D.B.’s best interest to terminate Beaird’s
parental rights, noting that D.B. had been in DHS custody for all but two days of his life,
that Beaird had not done the things that would be necessary for her to be a fit parent and
have the child returned to her, and that D.B. is adoptable.
We review termination-of-parental-rights orders de novo but will not reverse the
trial court’s findings of fact unless they are clearly erroneous. Harjo v. Ark. Dep’t of Human
Servs., 2018 Ark. App. 268, 548 S.W.3d 865. A finding is clearly erroneous when, although
there is evidence to support it, the appellate court is left on the entire evidence with the
firm conviction that a mistake has been made. Id. We must defer to the superior position of
the trial court to weigh the credibility of the witnesses. Ewasiuk v. Ark. Dep’t of Human
Servs., 2018 Ark. App. 59, 540 S.W.3d 318. On appellate review, this court gives a high
degree of deference to the trial court, which is in a far superior position to observe the
parties before it. Id. Termination of parental rights is an extreme remedy and in derogation
4 The court erroneously identifies this ground as an “aggravated circumstances” ground. This ground is a separate ground, however, and does not fall under the purview of aggravated circumstances under the statute.
4 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. Id.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2017), an order
forever terminating parental rights shall be based on a finding by clear and convincing
evidence that there are one or more statutory grounds. Counsel states in her no-merit brief
that any argument challenging the statutory grounds for termination would be wholly
frivolous because there was sufficient evidence to support the trial court’s finding of
aggravated circumstances—little likelihood for successful reunification. While that statutory
ground was pled in the petition, the trial court did not make a specific finding on the
aggravated-circumstances ground cited by counsel. Instead, the trial court made findings as
to the two other statutory grounds pled in the petition: subsequent other factors (Ark. Code
Ann. § 9-27-341(b)(3)(B)(vii)(a)) and previous involuntary termination (Ark. Code Ann. §
9-27-341(b)(3)(B)(ix)(a)(4)). We conclude, however, that counsel’s error is not fatal in this
case.
In termination-of-parental-rights cases, we must complete a de novo review of the
record, and a failure of counsel to list and discuss all adverse rulings will not necessarily result
in automatic rebriefing. See Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877; Houseman v.
Ark. Dep’t of Human Servs., 2016 Ark. App. 227, 491 S.W.3d 153 (affirming without
rebriefing). But see Kloss v. Ark. Dep’t of Human Servs., 2019 Ark. App. 121; Bentley v. Ark.
Dep’t of Human Servs., 2018 Ark. App. 125 (rebriefing ordered). Having completed our de
novo review, we conclude that the trial court was not clearly erroneous in its conclusion
that statutory grounds for termination existed. Here, it is undisputed that on two separate
5 occasions, Beaird’s parental rights to two other children were involuntarily terminated.
Thus, the prior-involuntary-termination ground was conclusively satisfied. Because only
one ground of section 9-27-341(b)(3)(B) need be proved to support termination, there can
be no meritorious argument for challenging the trial court’s finding of statutory grounds.
Sims v. Ark. Dep’t of Human Servs., 2015 Ark. App. 137, at 7.
Next, counsel states in her no-merit brief that any argument challenging the trial
court’s “best interest” findings would be wholly frivolous. Pursuant to Arkansas Code
Annotated section 9-27-341(b)(3), an order forever terminating parental rights shall be based
on a finding by clear and convincing evidence that it is in the best interest of the juvenile,
including consideration of the likelihood that the juvenile will be adopted and the potential
harm to the health and safety of the juvenile if returned to the custody of the parent. In its
order, the court specifically found that it had considered adoptability and potential harm to
the child. Thus, the court considered both best-interest factors.
As to the adoptability, Jessica Warren, an adoption specialist, testified there were 294
adoption resources found for D.B. She stated that to her knowledge, there were not any
health, developmental, or other issues that would be a barrier to his adoption. Our appellate
courts have repeatedly held that the testimony of an adoption specialist is sufficient to
support a trial court’s adoptability findings. Whitaker v. Ark. Dep’t of Human Servs., 2018
Ark. App. 61, at 15, 540 S.W.3d 719, 728. Accordingly, Warren’s testimony was sufficient
to support the trial court’s adoptability finding in this case.
As to potential harm, the court found that Beaird was unfit and that it would be a
travesty to return the child to her. We conclude that the trial court was not clearly erroneous
6 in its conclusion concerning potential harm. Beaird has a serious and ongoing drug addiction
that has resulted in the termination of her parental rights to not only this child but also to
two other children. A parent’s past behavior is often a good indicator of future behavior.
Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, 444 S.W.3d 366. Despite this,
Beaird continued to deny her drug problem, and she failed to complete drug treatment
despite treatment referrals on numerous occasions. We have held that continued drug use
demonstrates potential harm sufficient to support a best-interest finding in a termination-
of-parental-rights case. Middleton v. Ark. Dep’t of Human Servs., 2019 Ark. App. 97, at 11,
572 S.W.3d 410, 417. Additionally, Beaird admitted that she has a history of mental illness:
PTSD, manic depression, and anorexia; but she failed to complete individual counseling. At
the time of the termination hearing, Beaird was incarcerated on a parole hold. She admitted
that this hold was due to new charges but contended that the new charges had been dropped. 5 The facts supporting potential harm, in conjunction with the evidence of adoptability,
provided sufficient evidence for the trial court’s best-interest finding.
Affirmed; motion to withdraw granted.
ABRAMSON and GLADWIN, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
One brief only.
5 The new, allegedly dismissed charges were for criminal mischief and third-degree domestic battering of her mother. The original charge was for possession of methamphetamine.