Cite as 2019 Ark. App. 335 ARKANSAS COURT OF APPEALS Digitally signed by Elizabeth Perry DIVISION IV Date: 2022.07.21 12:36:48 -05'00' No. CV-19-185 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: June 5, 2019 LESLIE MCDANIEL APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT V. [NO. 58JV-18-68]
HONORABLE KENNETH D. COKER, ARKANSAS DEPARTMENT OF JR., JUDGE HUMAN SERVICES AND MINOR CHILD AFFIRMED; MOTION TO APPELLEES WITHDRAW GRANTED
KENNETH S. HIXSON, Judge
Appellant Leslie McDaniel appeals from the termination of her parental rights to her
son, L.G., who was born on May 23, 2018. 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), Leslie’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 Leslie’s counsel’s brief and motion was mailed to Leslie, and after being
informed of her right to file pro se points, Leslie declined to file any points. We affirm and
grant appellant’s counsel’s motion to withdraw.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must
exist, in addition to a finding that it is in the child’s best interest to terminate parental rights;
1 The child’s putative father died during the dependency-neglect proceedings. these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)
(Repl. 2017); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851.
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. Gray v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 24. The appellate inquiry is whether the trial court’s finding that the
disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.
Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark.
Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
When L.G. was born, his meconium tested positive for methamphetamine. Leslie
admitted using methamphetamine earlier that week. An Arkansas Department of Human
Services (DHS) family-service worker informed Leslie that a home study would be necessary
to ensure the baby’s safety before the baby could be placed in her custody. Leslie gave the
family-service worker an address and phone number and left the hospital. DHS workers
repeatedly attempted to make contact with Leslie at her home, but they could never get
anyone to answer the door. Phone calls to Leslie went unanswered. L.G. was scheduled to
be discharged from the hospital eight days after his birth, on May 31, 2018. On that day, a
DHS worker went to Leslie’s house and saw three cars parked in the driveway. A pit bull
was guarding the porch and barking viciously at the worker. An unidentified person quickly
closed the front door. The DHS worker attempted to reach Leslie by phone but got no
answer. DHS took an emergency hold of L.G. upon his release from the hospital and
notified Leslie via text message.
2 On June 4, 2018, DHS filed a motion for emergency custody, and on the same day
the trial court entered an ex parte order for emergency custody. A probable-cause order
was entered on June 11, 2018. In the probable-cause order, Leslie was allowed reasonable
visitation with L.G. contingent upon her submitting to a drug screen and not appearing
under the influence of drugs or alcohol. Leslie was ordered to submit to random drug
screens, complete parenting classes, maintain stable housing and employment, submit to a
psychological evaluation, and submit to a drug-and-alcohol assessment and complete all
recommendations.
The trial court entered an adjudication order on July 13, 2018. The trial court found
L.G. dependent-neglected because he was at serious risk of harm due to inadequate
supervision and his mother’s drug use. The goal of the case was reunification.
A review hearing, at which Leslie did not appear, was held on September 17, 2018.
At that hearing, the trial court considered a written motion by DHS to terminate
reunification services. On September 21, 2018, the trial court entered a review order and
an order terminating reunification services. In these orders, the trial court suspended Leslie’s
visitation and relieved DHS from providing services to Leslie. The trial court found by
clear and convincing evidence that it was in L.G.’s best interest to terminate reunification
services because Leslie had abandoned the child and there was little likelihood that services
to Leslie would result in successful reunification.
In a permanency-planning order entered on October 15, 2018, the trial court found
that the goal of the case shall be termination of parental rights and adoption. DHS filed a
petition to terminate Leslie’s parental rights on November 5, 2018. The termination hearing
was held on November 26, 2018.
3 Leslie did not appear at the termination hearing. The only witness to testify at the
hearing was DHS supervisor Victoria Smith.
Ms. Smith testified that Leslie had not had stable housing throughout the case and
that DHS did not know where she was living. To Ms. Smith’s knowledge, Leslie was not
employed. Ms. Smith indicated that despite referrals by DHS, Leslie had not complied with
any of the court-ordered services. Leslie had failed to submit to a drug-and-alcohol
assessment, attend parenting classes, or submit to a psychological evaluation. Ms. Smith
stated that Leslie had not visited L.G. at all since L.G. came into DHS custody. Ms. Smith
stated that Leslie had attempted to visit the child only three times but that visitation was
denied each time because she either tested positive for methamphetamine or refused to take
a drug screen. Ms. Smith also stated that Leslie previously had her parental rights terminated
as to a sibling of L.G. due to Leslie’s failure to complete services in that case.
Ms. Smith gave the opinion that Leslie had abandoned her child, and she
recommended termination of Leslie’s parental rights. She stated that if parental rights were
terminated, the plan was for L.G. to be adopted. Ms. Smith stated that L.G.’s foster parents
were interested in adopting him and that it was very likely that L.G. would be adopted.
At the termination hearing DHS introduced, without objection, a certified copy of
an order terminating Leslie’s parental rights to her older son, K.M., who was born on
October 6, 2016. In that termination order, which was entered on October 6, 2017, the
trial court found that Leslie had abandoned K.M., having visited him only twice since
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Cite as 2019 Ark. App. 335 ARKANSAS COURT OF APPEALS Digitally signed by Elizabeth Perry DIVISION IV Date: 2022.07.21 12:36:48 -05'00' No. CV-19-185 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: June 5, 2019 LESLIE MCDANIEL APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT V. [NO. 58JV-18-68]
HONORABLE KENNETH D. COKER, ARKANSAS DEPARTMENT OF JR., JUDGE HUMAN SERVICES AND MINOR CHILD AFFIRMED; MOTION TO APPELLEES WITHDRAW GRANTED
KENNETH S. HIXSON, Judge
Appellant Leslie McDaniel appeals from the termination of her parental rights to her
son, L.G., who was born on May 23, 2018. 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), Leslie’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 Leslie’s counsel’s brief and motion was mailed to Leslie, and after being
informed of her right to file pro se points, Leslie declined to file any points. We affirm and
grant appellant’s counsel’s motion to withdraw.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must
exist, in addition to a finding that it is in the child’s best interest to terminate parental rights;
1 The child’s putative father died during the dependency-neglect proceedings. these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)
(Repl. 2017); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851.
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. Gray v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 24. The appellate inquiry is whether the trial court’s finding that the
disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.
Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark.
Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
When L.G. was born, his meconium tested positive for methamphetamine. Leslie
admitted using methamphetamine earlier that week. An Arkansas Department of Human
Services (DHS) family-service worker informed Leslie that a home study would be necessary
to ensure the baby’s safety before the baby could be placed in her custody. Leslie gave the
family-service worker an address and phone number and left the hospital. DHS workers
repeatedly attempted to make contact with Leslie at her home, but they could never get
anyone to answer the door. Phone calls to Leslie went unanswered. L.G. was scheduled to
be discharged from the hospital eight days after his birth, on May 31, 2018. On that day, a
DHS worker went to Leslie’s house and saw three cars parked in the driveway. A pit bull
was guarding the porch and barking viciously at the worker. An unidentified person quickly
closed the front door. The DHS worker attempted to reach Leslie by phone but got no
answer. DHS took an emergency hold of L.G. upon his release from the hospital and
notified Leslie via text message.
2 On June 4, 2018, DHS filed a motion for emergency custody, and on the same day
the trial court entered an ex parte order for emergency custody. A probable-cause order
was entered on June 11, 2018. In the probable-cause order, Leslie was allowed reasonable
visitation with L.G. contingent upon her submitting to a drug screen and not appearing
under the influence of drugs or alcohol. Leslie was ordered to submit to random drug
screens, complete parenting classes, maintain stable housing and employment, submit to a
psychological evaluation, and submit to a drug-and-alcohol assessment and complete all
recommendations.
The trial court entered an adjudication order on July 13, 2018. The trial court found
L.G. dependent-neglected because he was at serious risk of harm due to inadequate
supervision and his mother’s drug use. The goal of the case was reunification.
A review hearing, at which Leslie did not appear, was held on September 17, 2018.
At that hearing, the trial court considered a written motion by DHS to terminate
reunification services. On September 21, 2018, the trial court entered a review order and
an order terminating reunification services. In these orders, the trial court suspended Leslie’s
visitation and relieved DHS from providing services to Leslie. The trial court found by
clear and convincing evidence that it was in L.G.’s best interest to terminate reunification
services because Leslie had abandoned the child and there was little likelihood that services
to Leslie would result in successful reunification.
In a permanency-planning order entered on October 15, 2018, the trial court found
that the goal of the case shall be termination of parental rights and adoption. DHS filed a
petition to terminate Leslie’s parental rights on November 5, 2018. The termination hearing
was held on November 26, 2018.
3 Leslie did not appear at the termination hearing. The only witness to testify at the
hearing was DHS supervisor Victoria Smith.
Ms. Smith testified that Leslie had not had stable housing throughout the case and
that DHS did not know where she was living. To Ms. Smith’s knowledge, Leslie was not
employed. Ms. Smith indicated that despite referrals by DHS, Leslie had not complied with
any of the court-ordered services. Leslie had failed to submit to a drug-and-alcohol
assessment, attend parenting classes, or submit to a psychological evaluation. Ms. Smith
stated that Leslie had not visited L.G. at all since L.G. came into DHS custody. Ms. Smith
stated that Leslie had attempted to visit the child only three times but that visitation was
denied each time because she either tested positive for methamphetamine or refused to take
a drug screen. Ms. Smith also stated that Leslie previously had her parental rights terminated
as to a sibling of L.G. due to Leslie’s failure to complete services in that case.
Ms. Smith gave the opinion that Leslie had abandoned her child, and she
recommended termination of Leslie’s parental rights. She stated that if parental rights were
terminated, the plan was for L.G. to be adopted. Ms. Smith stated that L.G.’s foster parents
were interested in adopting him and that it was very likely that L.G. would be adopted.
At the termination hearing DHS introduced, without objection, a certified copy of
an order terminating Leslie’s parental rights to her older son, K.M., who was born on
October 6, 2016. In that termination order, which was entered on October 6, 2017, the
trial court found that Leslie had abandoned K.M., having visited him only twice since
coming into foster care and failing to maintain contact with DHS or comply with any of
the court’s orders.
4 On November 29, 2018, the trial court entered an order terminating Leslie’s parental
rights to L.G. The trial court found by clear and convincing evidence that termination of
parental rights was in the child’s best interest, and the court specifically considered the
likelihood of adoption, as well as the potential harm of returning the child to Leslie’s custody
as required by Arkansas Code Annotated section 9-27-341(b)(3)(A). The trial court also
found clear and convincing evidence of three statutory grounds under subsection (b)(3)(B).
Pursuant to subsection (b)(3)(B)(iv), the trial court found that Leslie had abandoned
the juvenile. Under subsection (b)(3)(B)(ix)(a)(3), the trial court found that Leslie had
subjected L.G. to aggravated circumstances, meaning that there was little likelihood that
services to the family would result in successful reunification. Finally, under subsection
(b)(3)(B)(ix)(a)(4), the trial court found that Leslie had her parental rights involuntarily
terminated as to a sibling of L.G.
In the no-merit brief, appellant’s counsel accurately asserts that the only adverse
ruling below was the termination itself. Appellant’s counsel further asserts, correctly, that
there could be no meritorious challenge to the sufficiency of the evidence to support
termination of Leslie’s parental rights.
Although the trial court found three statutory grounds for termination, only one
ground is necessary to support the termination. See Brown v. Ark. Dep’t of Human Servs.,
2017 Ark. App. 303, 521 S.W.3d 183. In the termination order, the trial court found
under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) that Leslie had her parental rights
involuntarily terminated as to a sibling of L.G. Because this ground was conclusively proved
at the termination hearing, there can be no meritorious challenge to the statutory-ground
element of the termination statute.
5 We also agree with appellant’s counsel’s assertion that there can be no meritorious
challenge to the trial court’s finding that termination of parental rights was in L.G.’s best
interest. Leslie had not visited L.G. in the six-month period since his removal from her
custody, and she failed to appear at the termination hearing. The testimony at the hearing
showed that Leslie had no stable housing or employment and that she had not complied
with any of the case plan. Leslie tested positive for methamphetamine just three months
before the termination hearing and had otherwise refused drug screens or failed to make
herself available for them. This evidence supports the trial court’s finding that L.G. would
be at risk of harm if returned to Leslie’s custody. There was also testimony that the
likelihood of adoption was very high and that L.G.’s foster parents were interested in
adopting him. Based on the evidence presented, the trial court’s finding that termination
of Leslie’s parental rights was in L.G.’s best interest was not clearly erroneous.
After examining the record and appellant’s counsel’s brief, we have determined that
counsel has complied with our no-merit rules and that this appeal is wholly without merit.
Accordingly, we affirm the order terminating appellant’s parental rights and grant her
counsel’s motion to withdraw from representation.
Affirmed; motion to withdraw granted.
GLADWIN and SWITZER, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
One brief only.