Johnson v. Ark. Dep't of Human Servs.

2015 Ark. App. 34

• Court: Court of Appeals of Arkansas
• Decided: January 28, 2015
• Docket: CV-14-801
• Status: Published

Opinion

Cite as 2015 Ark. App. 34

ARKANSAS COURT OF APPEALS DIVISION IV No. CV-14-801

DAWN JOHNSON Opinion Delivered January 28, 2015 APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, ELEVENTH DIVISION [NO. 60JV2013-1489] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE PATRICIA JAMES, CHILDREN JUDGE APPELLEES AFFIRMED; MOTION GRANTED

BART F. VIRDEN, Judge

On June 24, 2014, the Pulaski County Circuit Court terminated the parental rights of

appellant Dawn Johnson to her children, C.J. and S.J. (twins born 08-13-07) and S.J. (born

05-04-09).1 Ms. Johnson’s counsel filed a motion to withdraw and a no-merit brief, 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), contending that there are no meritorious

grounds to support an appeal and listing the adverse rulings. Ms. Johnson was properly served

with the motion to withdraw and a copy of the brief. Neither the appellant, nor the appellees

filed any response. We affirm the order terminating appellant’s parental rights and grant

counsel’s motion to withdraw.

The supreme court has described the procedure for withdrawing as counsel from a

1 Putative father Christopher Johnson’s parental rights were also terminated in this order, but he is not a subject of this appeal. Cite as 2015 Ark. App. 34

termination-of-parental-rights appeal:

[A]ppointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent party must be provided with a copy of the brief and notified of his right to file points for reversal within thirty days. If this court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel's motion and dismiss the appeal.

Linker-Flores, 359 Ark. at 141, 194 S.W.3d at 747–48.

This court reviews all pleadings and testimony in the case on the question of the

sufficiency of the evidence supporting the decision to terminate, and only adverse rulings

arising at the termination hearing need be addressed in the no-merit appeal from the prior

orders in the case. Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005).

Termination-of-parental-rights cases are reviewed de novo. Dinkins v. Ark. Dep’t of Human

Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). 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. 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 caused by returning the child to the custody of the parent, specifically addressing the

effect on the health and safety of the child. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii)

(Supp. 2009). Additionally, the trial court must find by clear and convincing evidence that

one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B).

2 Cite as 2015 Ark. App. 34

Clear and convincing evidence is that degree of proof that will produce in the finder of fact

a firm conviction of the allegation sought to be established. Meriweather v. Ark. Dep’t of Health

& Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007).When the burden of proving a

disputed fact in equity is by clear and convincing evidence, the question that this court must

answer on appeal is whether the trial court's finding that the disputed fact was proved by clear

and convincing evidence is clearly erroneous. Weatherspoon v. Ark. Dep’t of Human Servs.,

2013 Ark. App. 104, 426 S.W.3d 520. 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. However, we give a high degree of

deference to the trial court, as it is in a far superior position to observe the parties before it and

judge the credibility of the witnesses. Dinkins, supra.

The Arkansas Department of Human Services took emergency custody of C.J., S.J.,

and S.J. on September 6, 2013, after responding to a neighbor’s phone call reporting domestic

violence at Dawn Johnson’s home. The court issued an ex parte order for emergency custody

on September 9, 2013. The children were adjudicated dependent-neglected in an order filed

the same day based on the court’s findings that Ms. Johnson tested positive for

methamphetamine, THC, and amphetamines. The probable-cause order filed September 16,

2013, ordered Ms. Johnson to meet a number of goals before her children could be returned

to her custody, and the children were to remain in foster care while she worked toward

fulfilling the requirements of the order. The adjudication/disposition order filed on October

28, 2013, stated reunification as the goal of the case. Over the next four months, the

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Department had infrequent contact with Ms. Johnson. On March 10, 2014, the court issued

a review order stating termination of parental rights as the new goal and ordered the children

to remain in the custody of the Department.

On May 1, 2014, the Department filed a petition to terminate Ms. Johnson’s parental

rights. The petition listed several possible grounds for termination pursuant to Arkansas Code

Annotated section 9-27-341: (1) that Ms. Johnson had abandoned the children; (2) that

subsequent to the filing of the original petition for dependency-neglect, other factors or issues

arose which demonstrate that return of the children to the family home would be contrary

to their health, safety or welfare and that despite the offer of appropriate family services, Ms.

Johnson had manifested the incapacity or indifference to remedy the subsequent issues or

factors or rehabilitate the circumstances which prevent return of the children to appellant and

(3) that she had subjected the children to aggravated circumstances. The termination hearing

took place on June 1, 2014. Ms. Johnson was present at the hearing and testified on her own

behalf. On June 2, 2014, the Department filed a court report that recommended that the

court proceed toward custody with parental rights terminated based on Ms. Johnson’s lack of

contact with her case worker, for failure to comply with the case plan, and for not visiting her

children since October 2013. In an order filed June 24, 2014, the court stated in pertinent

part:

7. [T]he mother . . . did virtually nothing to participate in services or otherwise work towards reunification. . . . Timely referrals were made, but neither mother nor father took advantage of them. Mother only visited the children three times while this case has been open, the last of which was on September 25, 2013. She admitted at the termination hearing that she “fell off the face of the earth” and missed many appointments for services because she was high on drugs. The only service mother

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even partially completed was a drug and alcohol assessment, but then she did not follow recommendations as ordered. She failed to show proof of completion of any outpatient drug treatment. . . . Mother admitted she basically quit trying. In addition to failing to complete parenting classes, counseling, psychological evaluation, and any other service, mother has not submitted to random drug screens. Prior to the termination hearing, mother’s last drug screen was on October 13, 2013, and it was positive for methamphetamines, amphetamines, benzodiazepines, and THC.

The court specifically stated that Ms. Johnson’s abandonment of the children

demonstrated aggravated circumstances. Aggravated circumstances are present when “[a]

juvenile has been abandoned . . . or 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.” Ark. Code

Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) (Supp. 2013). The court held that there was little

likelihood that services to the family would result in successful reunification because of Ms.

Johnson’s “lack of visitation with the children or participation in the case or any Court-

ordered services,” and it found “that giving [her] additional time would merely require the

children to needlessly languish in foster care.”

The ground known as “subsequent factors” was also a basis for terminating parental

rights. Arkansas Code Annotated section 9–27–341(b)(3)(B)(vii) defines subsequent factors as

factors or issues [that] arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health or welfare and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.

The court noted that Ms. Johnson’s incarceration at the time of the hearing was due

to her drug involvement and that she could not estimate her sentence or term of

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imprisonment, and therefore could not be an option for placement of the children.2 The court

cited these subsequent factors and found by clear and convincing evidence that the children

could not be placed in her custody “in any time frame that would be reasonable when viewed

through the lens of [the] children and their needs.”

Ms. Johnson’s inability and unwillingness to provide for the children’s extensive special

needs were adverse to their health and safety, and therefore also a factor in terminating her

parental rights. The court stated,

The Court has no confidence that the mother could . . . safely provide for these juveniles and their needs, in part because [she] never [has]. . . . these children need a stable, safe environment with a parent who will ensure they receive appropriate care, supervision and therapies as they grow. Ms. Johnson [has] shown no evidence that [she] can provide such for these children now or any time in the future. The Court specifically finds that [the children’s] health and safety would be at risk if custody of them were ever returned to the mother[.]

In terminating parental rights, the court also found that the children were adoptable

based on the testimony of the adoption specialist. This timely appeal followed. Counsel

contends that this appeal is without merit. In accordance with Arkansas Supreme Court Rule

6-9(i)(1)(A) (2014), counsel’s brief lists all adverse rulings. We hold that they do not present

meritorious grounds for relief, and counsel’s brief adequately covered each action that was

adverse to Ms. Johnson below. Having carefully examined the record and brief, we hold that

counsel has complied with the requirements established by the Arkansas Supreme Court

2 Ms. Johnson admitted in testimony that she could not take the children home with her the day of the hearing, and she did not know what type of sentence she would be facing. Ms. Johnson said that she was in jail for “six or seven charges,” several of which were felonies, and they involved drugs and weapons.

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concerning no-merit appeals in termination cases, and we conclude that the appeal is wholly

without merit. Accordingly, we affirm the order terminating Ms. Johnson’s parental rights

and grant counsel’s motion to withdraw.

Affirmed; motion granted.

GLADWIN, C.J., and HIXSON, J., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

No response.