John Braswell v. Arkansas Department of Human Services and Minor Children

2024 Ark. App. 395

• Court: Court of Appeals of Arkansas
• Decided: June 5, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 395 ARKANSAS COURT OF APPEALS DIVISION III No. CV-24-91

JOHN BRASWELL APPELLANT Opinion Delivered June 5, 2024

V. APPEAL FROM THE LITTLE RIVER COUNTY CIRCUIT COURT [NO. 41JV-21-73] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE BRYAN CHESSHIR, CHILDREN JUDGE APPELLEES AFFIRMED; MOTION TO WITHDRAW GRANTED

MIKE MURPHY, Judge Counsel for John Braswell brings this no-merit appeal from the Little River County

Circuit Court’s order terminating his parental rights to his minor children, MC1 (DOB

07/18/09), MC2 (DOB 08/08/17), and MC3 (DOB 07/10/18). Following the dictates of

Arkansas Supreme Court and Court of Appeals Rule 6-9(j) (2022) and Linker-Flores v.

Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), Braswell’s

attorney 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 this court sent a copy of

the brief and the motion to withdraw to Braswell, informing him of his right to file pro se

points for reversal pursuant to Rule 6-9(j)(3), and he has not done so. Having reviewed the

brief and the record, we agree that an appeal would be wholly without merit. Therefore, we affirm the order terminating Braswell’s parental rights and grant counsel’s motion to

withdraw from representation.

On November 29, 2021, the Arkansas Department of Human Services (“DHS”) filed

a petition for ex parte emergency custody and dependency-neglect after it had exercised a

hold on MC1, MC2, and MC3. In an affidavit attached to the emergency petition, a family

service worker (“FSW’) averred that DHS became involved with the family after the

children’s mother, Amber O’Neal, was found in contempt of court at a family in need of

services (“FINS”) hearing on November 16, 2021. The FINS petition alleged that MC1 was

in need of services due to her lack of school attendance. At the hearing, O’Neal was visibly

under the influence, and the court ordered a drug screen. The screen was negative because

she had submitted fake urine; however, she later admitted she had used illegal substances.

Braswell informed the court that he shared joint custody of the children, but he was unable

to care for them at that time due to a house fire four days before the hearing. A hold was

exercised that day due to concerns regarding educational neglect, environmental neglect, and

parental unfitness. An ex parte order placing the children in DHS’s legal custody was also

filed on November 29.1

At the probable-cause hearing, the children continued in DHS’s custody, and an

adjudication hearing was set. An adjudication hearing concerning Braswell was held on April

1, 2022. At the hearing, Braswell was found to be the children’s parent because he was

1 The court also terminated the rights of O’Neil, but she did not appeal the termination decision. This appeal only concerns Braswell.

2 married to O’Neil when each child was born. The court found the children dependent-

neglected on the basis of neglect and parental unfitness due to the allegations in the affidavit

being true and correct. The court ordered the children to remain in the custody of DHS,

and the goal of the case was set as reunification. Visitation was unsupervised, and DHS had

the discretion to begin a trial home placement once parenting classes were completed.

The first review hearing was held on July 15, 2022. The children remained in the

custody of DHS, and a trial home visit was authorized. Both parents were in compliance with

the case plan and court orders, and the goal remained reunification with a concurrent goal

of relative placement. The first permanency-planning hearing was held on October 7. The

children remained in the custody of DHS and continued in the trial home placement with

their parents. The goal of the case remained reunification. Both parents were in compliance

and were ordered to participate in both individual counseling and family counseling with

MC1. If any of the children missed three or more days of school before the Christmas break,

they would be removed from the parents’ home.

The second review hearing was held on February 10, 2023. The children remained in

the custody of DHS, and the goal remained reunification with a concurrent goal of relative

placement. The trial home placement was ordered to cease “immediately” because MC1 had

missed a substantial number of school days, and there were at least three times that the

parents had failed to pick up MC2 and MC3 from daycare. The parents were found to be

noncompliant with the case plan and court orders, and visitation with Braswell was to be

supervised by DHS.

3 The second permanency-planning hearing was held on August 18. The children

remained in the custody of DHS, and the goal of the case changed to adoption. The parents

were noncompliant: they had been evicted from their housing, had substance-abuse issues,

had failed to follow through with counseling, and had been arrested three times since the

last hearing. The same day the second permanency-planning hearing was held, DHS filed a

termination-of-parental-rights petition. The following grounds were pled: twelve months,

failure to remedy by the custodial parent; twelve months, failure to remedy by the

noncustodial parent; twelve months, failure to provide significant material support or

maintain meaningful contact; subsequent factors; and aggravated circumstances—specifically,

little likelihood that services will result in reunification.

The termination hearing was held on October 6. The first witness was Camille

Stanley, the county supervisor who had been the primary caseworker on the case since it

opened, and she testified to the following. Other than the trial home placement, which lasted

six months, the children had remained out of the home since November 2021. At the

beginning of the case, both parents were compliant and participated in services. The

situation began to deteriorate after the trial home placement had begun. Out of the twelve

staffings, the parents participated in only five. Stanley testified that she had numerous

conversations with the parents about what was needed to retain the children in their home,

but she did not see a sustained change in their behavior.

Braswell was incarcerated at one point during the case, and Stanley stated that during

that time, he did not visit with the children. While he was on time for some of the visits,

4 during the last two months, he missed one visit, was an hour and a half late for one visit,

and was forty-five minutes late for another. Braswell did notify DHS if he was running late,

but the caseworker never knew how late he would be. DHS offered Braswell transportation

to the visits. Stanley testified that Braswell completed parenting classes and his psychological

evaluation. He completed the intake for individual counseling but stopped attending after

two sessions. Since the case opened, DHS had offered him assistance with housing,

transportation, and daycare. After Braswell’s arrest, Braswell and O’Neil were no longer

eligible for their housing and had to move. Braswell did not require employment assistance

because he received Social Security income.

Stanley testified that there were no factors that would interfere with adoption and

that eleven families had been identified that were willing to adopt a sibling group with the

children’s characteristics. MC1 was in one foster home while MC2 and MC3 were in

another. The homes were within five minutes of each other, and the siblings visited

frequently. At the beginning of the case, DHS had considered one of the grandfathers for

placement, but he was deemed inappropriate since he contributed to the truancy issues

concerning MC1. Braswell had given DHS the name and email address for his brother as

another placement option, but the brother had not replied when DHS reached out to him.

Stanley testified that she had visited Braswell’s home. Pictures from her visits in May

and September 2023 were introduced without objection. She explained that the house did

not have plumbing or running water. The shower was on the front porch, and one would

have to walk through the shower area to enter the home. The home had an outhouse

5 consisting of a hospital chair with a bucket underneath. There was only one bedroom for

the entire family, and there were environmental concerns inside and outside the home.

Braswell was the only other witness. He testified that he lived at the location shown

in the pictures taken by Stanley since February or March 2023. Braswell always wanted to

visit with his daughters but had issues that caused him to miss a few of those visits. One time,

he asked DHS for transportation assistance, but the worker had been slow to reply. Braswell

did not continue in counseling because the therapist had failed to contact him after

informing him that sessions would be virtual. Braswell was arrested three times throughout

the case and explained that his first arrest had resulted in a felony drug-possession charge.

He pled guilty to the charge and was currently on probation. The second arrest was due to a

warrant in connection to the felony drug-possession charge. The third arrest concerned the

possession of marijuana.

Braswell testified that he tried to do everything on his own and did not want to ask

for DHS to “do it for him.” He loves his daughters and did not want his parental rights to

be terminated. He believed that O’Neil had been a lot of the problem, and he had not been

around her since their last arrest. Braswell did not think his current home was appropriate

for his daughters.

At the end of the hearing, the court ruled that it was granting DHS’s petition. A

November 9 order set forth findings to support all the grounds pled by DHS. Braswell filed

a timely notice of appeal, and his attorney has now filed a no-merit brief and motion to be

relieved as counsel.

6 The only adverse ruling was the circuit court’s termination decision. This court

reviews termination-of-parental-rights cases de novo. Lloyd v. Ark. Dep’t of Hum. Servs., 2022

Ark. App. 461, at 7, 655 S.W.3d 534, 540. Termination requires a finding of at least one

statutory ground and a finding that termination is in the child’s best interest. Id. Arkansas

Code Annotated section 9-27-341(b)(3) (Supp. 2023) requires a circuit court’s order

terminating parental rights to be based on clear and convincing evidence. Lloyd, 2022 Ark.

App. 461, at 8, 655 S.W.3d at 540. 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. Barnett v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 481. When the burden of

proving a disputed fact is by clear and convincing evidence, the question that must be

answered on appeal is whether the circuit court’s finding was 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. This court gives a high level of deference to the circuit court because it is in a far superior

position to observe the parties before it and to judge the credibility of the witnesses and the

weight of the evidence. Id.

A court of competent jurisdiction may terminate parental rights when the parent is

found to have subjected any juvenile to aggravated circumstances. Ark. Code Ann. § 9-27

341(b)(3)(B)(ix)(a)(3)(A). As applied in this case, aggravated circumstances means that “a

determination has been or is made by a judge that there is little likelihood that services to

the family will result in successful reunification.” Id. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i). To

7 prevail on this ground, DHS was required to demonstrate that if appropriate reunification

services were provided, there is little likelihood that reunification could be achieved.

McCullar v. Ark. Dep’t of Hum. Servs., 2024 Ark. App. 15, at 7, 683 S.W.3d 202, 208. A parent

can create this type of aggravated circumstance by not following through with offers of

assistance, by not completing basic goals of the case plan, and when there is a lack of

significant progress on the parent’s part. Id.

Here, the circuit court heard clear and convincing evidence to support the aggravated-

circumstances ground. Braswell failed to comply with the case plan or show any progress

toward reunification. While the case progressed to a trial home placement, it ended due to

Braswell’s failure to comply with the court orders and inability to meet his daughters’ needs.

After the trial home placement ended, he continued to be in noncompliance with the case

plan and court orders and failed to attend the August 2023 permanency-planning hearing.

He was arrested three separate times for offenses concerning illegal substances and at the

time of the termination hearing had pled guilty to a charge of felony drug possession. He did

not take advantage of DHS’s offer to transport him to visitation, and as a result, he missed

or was substantially late to more than one visit with his children. Importantly, Braswell

admitted that his home was not safe or appropriate for his children, and he did not have a

clear time frame or plan on when he would be able find one. Despite the provision of services

for over a year and a half, at the time of the termination, hearing Braswell was in a worse

position than he was when the case opened.

8 In completing a de novo review of the record, we hold that the circuit court’s

determination that there was little likelihood of successful reunification was not clearly

erroneous. See, e.g., Cullum, supra (father received various services but continued to test

positive for drugs, suffer from housing instability, and have anger-management issues); Kloss

v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 389, 585 S.W.3d 725 (despite services, father

continued to test positive for drugs and failed to take advantage of therapy and counseling).

Because only one ground listed in section 9-27-341(b)(3)(B) need be proved to support

termination, there can be no meritorious argument for challenging the statutory-grounds

findings of the court. Kloss, supra.

As for the best-interest finding, counsel argues that there was sufficient evidence to

support the court’s finding that termination was in the best interest of the children. When

making the best-interest finding, a circuit court must consider (1) the likelihood that the

child 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. Migues v. Ark. Dep’t of Hum. Servs., 2019 Ark. App.

439, at 10, 586 S.W.3d 221, 227–28.

Here, Stanley, the case supervisor, testified that all the children are adoptable and

that there are no barriers to adoption for any of the children, which supports an adoptability

finding by the circuit court. Cole v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 121, at 6–7, 543

S.W.3d 540, 544.

9 As to potential harm, the circuit court is not required to find that actual harm would

result or to affirmatively identify a potential harm. Ross v. Ark. Dep’t of Hum. Servs., 2017 Ark.

App. 503, 529 S.W.3d 692. Potential harm must be viewed in broad terms, and “potential”

necessarily means that the court is required to look to future possibilities. Id. 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.

The circuit court was presented with sufficient evidence of potential harm, and the

same facts that support the aggravated-circumstances finding support the court’s potential-

harm finding. Overall, Braswell could not demonstrate that at the time of the termination

hearing he had achieved any stability. Counsel asserts that the circuit court’s finding that the

children would be at risk of potential harm if returned to him was not erroneous. We agree

with this assessment and conclude that the evidence was sufficient to support the circuit

court’s best-interest analysis.

Counsel has complied with the dictates of Linker-Flores and the rules of this court, and

we conclude that an appeal would be wholly frivolous in this case. Accordingly, we affirm

the order and grant counsel’s motion to withdraw from representation.

Affirmed; motion to withdraw granted.

HARRISON, C.J., and KLAPPENBACH, J., agree.

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

One brief only.