Jill Davidson v. Arkansas Department of Human Services and Minor Children

2023 Ark. App. 13

• Court: Court of Appeals of Arkansas
• Decided: January 18, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 13 ARKANSAS COURT OF APPEALS DIVISION III No. CV-22-365

JILL DAVIDSON Opinion Delivered January 18, 2023 APPELLANT APPEAL FROM THE LOGAN V. COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 42BJV-21-7] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE TERRY SULLIVAN, CHILDREN JUDGE APPELLEES AFFIRMED; MOTION GRANTED

KENNETH S. HIXSON, Judge

Appellant Jill Davidson appeals from the termination of her parental rights to her

three children, MC1, MC2, and MC3, who are now ages seven, four, and three. 1 Pursuant

to , 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(j), Jill’s

counsel has filed a no-merit brief and motion to withdraw, asserting that there are no issues

of arguable merit to support an appeal and that she should be relieved as counsel. A copy

of Jill’s counsel’s brief and motion was mailed to her at her last known address along with

information about her right to file pro se points, but the package was returned as

1 The parental rights of the children’s father, David Davidson, were also terminated, but David did not appeal. undeliverable. Further efforts to contact Jill via email were unsuccessful. Thus, Jill has not

filed any pro se points. We affirm, and we grant counsel’s motion to be relieved.

A trial court’s order terminating parental rights must be based upon findings proved

by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2021). Clear and

convincing evidence is defined as that degree of proof that will produce in the fact-finder a

firm conviction as to the allegation sought to be established. Posey v. Ark. Dep’t of Health &

Hum. Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews

termination-of-parental-rights cases de novo but will not reverse the trial court’s ruling unless

its findings are 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 determining whether a finding is

clearly erroneous, an appellate court gives due deference to the opportunity of the trial court

to judge the credibility of witnesses. Id.

In order to terminate parental rights, a trial court must 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 harm, specifically addressing the effect on the health and safety of the child,

caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing

of clear and convincing evidence as to one or more of the grounds for termination listed in

2 section 9-27-341(b)(3)(B). However, only one ground must be proved to support

termination. Reid v. Ark. Dep’t of Hum. Servs., 2011 Ark. 187, 380 S.W.3d 918.

This case began on April 7, 2021, when appellee Arkansas Department of Human

Services (DHS) filed a petition for emergency custody of the children. Attached to the

petition was an affidavit of family-service worker Brandy Ezell, who was the family-service

worker throughout this case. The affidavit stated that DHS had received a call from the

police that the three children were walking down the street, and the children had told the

police officer they were walking to their grandmother’s house about seven blocks away

because no one was at their house. Ms. Ezell went to Jill’s house, and Jill told her, incorrectly,

that the children were with their father. According to the affidavit, there was trash all over

the house, inadequate food, and only one bed. Jill refused to take a drug test and stated that

if tested, she would be positive for methamphetamine and marijuana. The same day the

petition was filed, the trial court entered an ex parte order for emergency DHS custody. A

probable-cause order followed on May 17, 2021.

On June 23, 2021, the trial court entered an adjudication order. In the adjudication

order, the trial court found the children dependent-neglected based on parental unfitness

due to environmental neglect in the home and substance abuse. Jill was ordered to maintain

stable and appropriate housing; maintain income sufficient to support the family; maintain

safe and reliable transportation; comply with random drug screens; complete a drug-and-

alcohol assessment and follow all recommendations; attend parenting classes; visit the

3 children; and keep DHS apprised of her current contact information and any changes. The

goal of the case was reunification.

On September 27, 2021, the trial court entered a review order. In the review order,

the trial court ordered the children to remain in DHS custody and noted that the children

had been placed with their uncle. In the review order, the trial court found that Jill was

“totally noncompliant with the case plan and the orders of the court.” The trial court found

that Jill had failed to submit to a drug-and-alcohol assessment, having missed four scheduled

appointments. The trial court also found that Jill had missed three scheduled appointments

to attend a counseling intake. The trial court found that Jill lacked appropriate housing,

reliable transportation, and steady income. In addition, Jill had twice tested positive for

methamphetamine. In the review order, the trial court found that the goal of the case

continued to be reunification.

However, in a second review order entered on January 4, 2022, the trial court changed

the goal of the case from reunification to adoption. In that review order, the trial court

found that Jill had made no progress with the case plan or the orders of the court. The trial

court noted that Jill had completed six of twelve parenting classes but had not attended any

classes since June 12, 2021. Moreover, Jill had not visited the children since June 18, 2021.

The trial court stated that Jill had been recently arrested for failure to appear on pending

drug charges and spent one and a half months in jail, after which she failed to provide DHS

with her address.

4 On January 12, 2022, DHS filed a petition to terminate Jill’s parental rights. The

termination hearing was held on March 16, 2022. Although present at the termination

hearing, Jill chose not to testify. The only witness was family-service worker Brandy Ezell.

Ms. Ezell testified that DHS had offered Jill numerous family services but that Jill had

not availed herself of the services and was noncompliant with the case plan. Ms. Ezell stated

Jill had not visited the children since June 2021, and that since then, Jill has had very little

contact with DHS. Ms. Ezell stated that, to her knowledge, Jill lacked appropriate housing

or transportation, and that Jill had not provided any proof of employment. Ms. Ezell stated

that she had texted Jill numerous times during the case to find out where she lived but that

Jill would never give her an address. When Ms. Ezell went to Jill’s last known address where

the children had been removed, she spoke with the children’s father, who stated that he did

not know where Jill was living. Because Jill’s address was unknown, Ms. Ezell was unable to

complete any home visits.

Ms. Ezell stated that although Jill did complete a drug-and-alcohol assessment, she

failed to follow through with the recommendations and requirements. Ms. Ezell referred to

letters she had received from the outpatient-therapy provider. According to these letters, Jill

tested positive for methamphetamine on December 1, 2021. These letters showed that Jill

had missed multiple appointments, and that when she did attend on December 15, 2021,

she left without submitting to a drug screen, which was a “presumed positive.” On January

8, 2022, Jill was discharged from the rehabilitation program due to her multiple missed

appointments and the resulting inability to obtain drug screens from her. Ms. Ezell also

5 noted that in December 2021, Jill was twice convicted, in separate jurisdictions, for

possession of drug paraphernalia. Sentencing orders were admitted reflecting these felony

convictions, for which Jill was given three-year suspended sentences.

Ms. Ezell stated that the children are doing well and that, in her opinion, they are

adoptable. She stated that the children’s uncle and his wife want to adopt them.

Ms. Ezell stated that there were no services DHS could offer that would likely result

in reunification and that she thought the children would be at risk of harm if Jill’s parental

rights were not terminated. Ms. Ezell recommended terminating Jill’s parental rights, stating

that this would be in the children’s best interest.

On March 24, 2022, the trial court entered an order terminating Jill’s parental rights

as to all three children. The trial court found by clear and convincing evidence that

termination of parental rights was in the children’s best interest, and the court specifically

considered the likelihood of adoption as well as the potential harm of returning the children

to Jill’s custody as required by Ark. Code Ann. § 9-27-341(b)(3)(A). The trial court also

found clear and convincing evidence of two statutory grounds. Under Ark. Code Ann. § 9-

27-341(b)(3)(B)(vii)(a), the trial court found that other factors or issues arose subsequent to

the filing of the original petition for dependency-neglect that demonstrate that placement of

the children in Jill’s custody is contrary to the children’s health, safety, and welfare and that,

despite the offer of appropriate family services, Jill has manifested the incapacity or

indifference to remedy the subsequent issues or factors or rehabilitate her circumstances that

prevent the placement of the children in her custody. In addition, under Ark. Code Ann. §

6 9-27-341(b)(3)(B)(ix)(a)(3), the trial court found that Jill had subjected the children to

aggravated circumstances, meaning that there is little likelihood that services to the family

will result in successful reunification.

In her no-merit brief, Jill’s counsel correctly states that there could be no meritorious

challenge to the sufficiency of the evidence to support termination of Jill’s parental rights.

Although the trial court found multiple statutory grounds for termination, only one ground

is necessary to support the termination. Reid, supra. In the termination order, the trial court

found that Jill had subjected the children to aggravated circumstances, meaning that the trial

court made a determination that there is little likelihood that continued services would result

in successful reunification. Jill’s counsel asserts that there could be no meritorious challenge

to the trial court’s finding of aggravated circumstances, and we agree. The family-service

workers’ testimony showed that, after the first two months of the case, Jill had not visited

the children and had not maintained contact with DHS, despite repeated texts by the

caseworker to try and find out where Jill lived. Jill failed to comply with the case plan and

orders of the trial court, and the testimony indicated that Jill lacked appropriate housing and

reliable transportation and had provided no proof of employment. Moreover, Jill’s illegal

drug use was a major factor in the case, and after the case was opened, Jill tested positive for

methamphetamine on multiple occasions, and on other occasions she evaded being drug

tested. Jill was also convicted of two drug-related offenses during the case. Jill failed to

meaningfully participate in the DHS services that were offered during the case, and we hold

7 that there could be no meritorious argument challenging the trial court’s finding that there

is little likelihood that continued services would result in successful reunification.

We also agree with Jill’s counsel’s assertion that there can be no meritorious challenge

to the trial court’s finding that termination of parental rights was in the children’s best

interest. As stated, Jill showed little interest in pursuing reunification efforts and had not

visited the children in nine months at the time of the termination hearing. The family-

service worker gave the opinion that the children are adoptable, which we have held supports

an adoptability finding by the trial court. See Cole v. Ark. Dep’t of Hum. Servs., 2018 Ark. App.

121, 543 S.W.3d 540. As to the issue of potential harm if the children were returned to

Jill’s custody, the record shows that Jill was not in compliance with the case plan and that

she lacked stable and appropriate housing. Moreover, Jill continued to test positive for

methamphetamine during the case. We have held that evidence of a parent’s continued

drug use or failure to comply with court orders constitutes sufficient evidence of potential

harm. Johnson v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 313, 603 S.W.3d 630. In light of

the evidence presented, the trial court’s finding that termination of Jill’s parental rights was

in the children’s best interest was not clearly erroneous.

In Jill’s counsel’s no-merit brief, counsel asserts that other than the termination itself,

there were no other adverse rulings. We, however, have identified one additional adverse

ruling that occurred at the conclusion of the termination hearing. After the trial court

announced that it was terminating Jill’s parental rights, Jill requested a final visit with the

8 children. The trial court noted that Jill had not seen the children in nine months, stated

that a final visit “could possibly do more harm than good,” and denied the request.

Generally speaking, if a no-merit brief in a termination-of-parental-rights case fails to

address all the adverse rulings, we will order rebriefing. Knerr v. Ark. Dep’t of Hum. Servs.,

2014 Ark. App. 550. However, where the adverse rulings are clearly not meritorious, we

decline to order rebriefing. Id. Such is the case here.

In Best v. Arkansas Department of Human Services, 2020 Ark. App. 485, 611 S.W.3d

690, we indicated that any decision to grant a final visit in a termination hearing is within

the trial court’s discretion and that our courts have a duty to protect the best interest of the

children. Here, the trial court committed no abuse of discretion in denying a final visit

because Jill had not seen the children in nine months, and the trial court was acting in the

children’s best interest in denying the visit. We, therefore, conclude that any challenge to

this adverse ruling would clearly be without merit.

Having examined the record and appellant’s counsel’s brief, we have determined that

this appeal is wholly without merit. We affirm the order terminating appellant’s parental

rights and grant her counsel’s motion to be relieved from representation.

Affirmed; motion granted.

HARRISON, C.J., and BROWN, J., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

One brief only.