McDonald v. Arkansas Dep't of Human Servs.

2015 Ark. App. 277

• Court: Court of Appeals of Arkansas
• Decided: April 29, 2015
• Docket: CV-15-14
• Status: Published

Opinion

Cite as 2015 Ark. App. 277

ARKANSAS COURT OF APPEALS DIVISION III No. CV-15-14

Opinion Delivered April 29, 2015

JENNIFER MCDONALD APPEAL FROM THE CLAY COUNTY APPELLANT CIRCUIT COURT [NO. EJV2013-19] V. HONORABLE CINDY THYER, ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES and A.M. and I.M., MINORS APPELLEES AFFIRMED; MOTION TO WITHDRAW GRANTED

BRANDON J. HARRISON, Judge

Jennifer McDonald appeals the Clay County Circuit Court’s decision to terminate

her parental rights to her children A.M. and I.M. McDonald’s counsel has filed a motion

to withdraw and a no-merit brief pursuant to our rules and caselaw, stating that there are

no meritorious grounds to support an appeal. Ark. Sup. Ct. R. 6-9 (2014); Linker-Flores v.

Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). Our court clerk

mailed a certified copy of counsel’s motion and brief to McDonald’s last known address

informing her of her right to file pro se points for reversal. She has not filed any pro se

points. We affirm the court’s decision to terminate McDonald’s parental rights to A.M.

and I.M. and grant counsel’s motion to withdraw.

1 Cite as 2015 Ark. App. 277

We review termination of parental rights cases de novo. Cheney v. Ark. Dep’t of

Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272. An order terminating parental rights

must be based upon a finding by clear and convincing evidence that the sought after

termination is in the children’s best interest. The circuit court must consider the

likelihood that the children will be adopted if the parent’s rights are terminated and the

potential harm that could be caused if the children are returned to a parent. Harper v. Ark.

Dep’t of Human Servs., 2011 Ark. App. 280, 378 S.W.3d 884. The circuit court must also

find that one of the grounds stated in the termination statute is satisfied. Id. Clear and

convincing evidence is that degree of proof that will produce in the fact finder a firm

conviction that the allegation has been established. Pratt v. Ark. Dep’t of Human Servs.,

2012 Ark. App. 399, 413 S.W.3d 261. When the burden of proving a disputed fact is by

clear and convincing evidence, we ask whether the circuit court’s finding on the disputed

fact is clearly erroneous. Id. A finding is clearly erroneous when, although there is

evidence to support it, we are left with a definite and firm conviction that a mistake has

been made. Id.

In dependency-neglect cases, if, after studying the record and researching the law,

appellant’s counsel determines that the appellant has no meritorious basis for appeal, then

counsel may file a no-merit petition and move to withdraw. Ark. Sup. Ct. R. 6-9(i)(1)

(2013). The petition must include an argument section that lists all adverse rulings that

the parent received at the circuit court level and explain why each adverse ruling is not a

meritorious ground for reversal. Ark. Sup. Ct. R. 6-9(i)(1)(A). The petition must also

include an abstract and addendum containing all rulings adverse to the appealing parent

2 Cite as 2015 Ark. App. 277

that were made during the hearing from which the order on appeal arose. Ark. Sup. Ct.

R. 6-9(i)(1)(B).

McDonald’s attorney argues that there would be no merit in challenging the

sufficiency of the statutory grounds or the court’s best-interest finding. We agree.

The circuit court terminated McDonald’s rights on two of the statutory grounds

that DHS alleged against her—the “failure to remedy” ground and the “other factors

arising” ground. We need not address both grounds because DHS only had to prove one

statutory ground to support a termination, and it did so. The statutory ground on which

we affirm the termination order is the “other factors” ground, which states:

[O]ther factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, 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 the placement of the juvenile in the custody of the parent.

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2013).

The circuit court decided to terminate McDonald’s parental rights on this statutory

ground because McDonald has had continued problems with drug use throughout the case

and did not have a safe home to which the children could return. The children were

originally removed from McDonald’s custody because of a hotline report stating that A.M.

and I.M. needed a caretaker at the Piggott Family Medical Center because McDonald was

too intoxicated to care for them, and the children were scared to go home. According to

DHS, McDonald was “very intoxicated,” incoherent, and failed an alcohol screening test.

During the course of the DHS case, McDonald was arrested for possession of marijuana

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and tested positive for THC at the permanency-planning hearing and at the termination

hearing. The court credited caseworker Brittany Howard’s testimony that she offered to

meet with McDonald to discuss inpatient drug or alcohol rehabilitation services and that

Howard offered to help McDonald look for rehab options. McDonald testified at the

termination hearing that she had a drug-and-alcohol assessment and that the assessor

recommended drug treatment, which she admittedly chose not to do. When questioned

about it, McDonald would not admit that she needed help with a drug problem although

she did not dispute the positive drug-test results. She also acknowledged that she stopped

going to the NA/AA meetings that the court had previously ordered her to attend. Other

testimony, including McDonald’s, supported the court’s finding that McDonald was living

with a man with a criminal record and a child-maltreatment history with DHS. The court

also credited Caseworker Howard’s testimony that McDonald’s home lacked sufficient

space for the children and that the home was dirty and unsanitary. Throughout the case,

the court found that DHS had made reasonable efforts to provide appropriate family

services to McDonald. Taken as a whole, there is clear-and-convincing evidence to

support the court’s termination under the “other factors” ground.

The court’s finding that it was in the children’s best interest for McDonald’s rights

to be terminated is sufficiently supported by the record. Caseworker Howard testified the

current foster parent was interested in adopting both children, and there was a high

likelihood of adoption. There is also sufficient evidence to support the court’s finding that

a substantial risk of harm existed if the children were returned to McDonald’s care. For

example, the court specifically credited Caseworker Howard’s testimony about

4 Cite as 2015 Ark. App. 277

McDonald’s unsafe home, lack of resources, and her unresolved drug and alcohol use as

evidence of potential harm.

In the argument section of the brief, counsel has listed the only adverse ruling in

this case apart from the court’s termination decision. The adverse ruling is the court’s

denial of McDonald’s oral motion for a continuance at the beginning of the termination

hearing. Counsel’s brief adequately explains why the court’s denial of McDonald’s

continuance motion was not an abuse of discretion.

After reviewing the record and counsel’s brief, we agree with counsel that an

appeal from the circuit court’s decision to terminate McDonald’s parental rights would be

wholly without merit. Because McDonald’s counsel has complied with the requirements

of Linker-Flores and this court’s rules, we affirm the court’s termination order and grant the

motion to withdraw.

Affirmed; motion to withdraw granted.

GLADWIN, C.J., and ABRAMSON, J., agree.

Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-

Neglect Appellate Division, for appellant.

No Response.