McLennan v. Arkansas Department of Human Services

2017 Ark. App. 460, 528 S.W.3d 854, 2017 Ark. App. LEXIS 537
CourtCourt of Appeals of Arkansas
DecidedSeptember 20, 2017
DocketCV-16-1086
StatusPublished

This text of 2017 Ark. App. 460 (McLennan v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLennan v. Arkansas Department of Human Services, 2017 Ark. App. 460, 528 S.W.3d 854, 2017 Ark. App. LEXIS 537 (Ark. Ct. App. 2017).

Opinion

BRANDON J. HARRISON, Judge

| Jacqueline R. McLennan appeals the Pulaski County Circuit Court’s decision to terminate her parental rights to her children A.R. and J.M. McLennan’s counsel has filed a motion to withdraw and a no-merit brief pursuant to our rules and case-law, stating that there are no meritorious grounds to support an appeal. Ark. Sup. Ct. R. 6-9 (2016); Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). Our court clerk mailed—by restricted delivery, return receipt requested—a certified copy of counsel’s motion and brief to McLennan’s last-known address informing her of her right to file pro se points for reversal. McLen-nan has not filed pro se points for reversal, and the Arkansas Department of Human Services (DHS) has not filed a brief. We affirm the court’s decision to terminate McLennan’s parental rights and grant counsel’s motion to withdraw.

I.

J.M. and A.R. were adjudicated dependent-neglected after McLennan failed to take reasonable action to protect A.R. from sexual harm and J.M. from the risk of serious harm |2by sexual exploitation. The court found that the DHS caseworker’s affidavit was correct and true that (a) A.R. reported that her grandfather asked her to have sex with him, (b) A.R. had no place to live, (c) McLennan was not adequately supervising the children because she was on methamphetamine, and (d) A.R.’s grandmother forced A.R. into prostitution, making her to have sex with a man for money.

In a November 2015 review order, the circuit court found that DHS had not made reasonable efforts to provide family-reunification services and that it failed to provide a foster youth transition plan for A.R., which is required by statute. The court further found that McLennan had not corrected the conditions which caused the juveniles’ removal and that she tested positive for THC, opiates, amphetamines, POP, and benzodiazepines.

In February 2016, the court found that McLennan had partially complied with the case plan, that she was making slow progress, and that DHS was making reasonable efforts. The court entered a permanency-planning order in June 2016 and changed the case-plan goal to adoption. The court noted that A.R. had a verbal altercation with her foster parents and was placed in an emergency shelter that was not an appropriate placement for her. J;M. was doing well. The court found that McLennan’s compliance with the case plan was minimal and that she had not completed her psychological examination, individual counseling, or drug-and-alcohol assessment. As for DHS, the court found that it had less than partial compliance with the case plan and coui’t orders. It found that there was no evidence that DHS had provided all the necessary education services for A.R. and that it did not notify the court that A.R. had been moved from the foster home to South Arkansas Youth Services.

IsLess than a week later, DHS filed a petition for termination of parental rights. Three grounds were alleged against McLennan: (1) twelve-month, failure-to-remedy ground; (2) other factors arising; and (3) aggravated circumstances. See Ark. Code Ann. §§ 9-27-341(b)(3)(B)(i)(cr.), 9-27-341(b)(3)(B)(vii)(a), and 9-27-341(b)(3)(B)(ix).

Samantha Parker, the DHS caseworker, testified that McLennan should have known her children were at risk for sexual exploitation because her parents (A.R. and J.M.’s grandparents) sexually exploited her when she was a child. She also said that McLennan did not complete the court-ordered psychological evaluation and was dropped from individual counseling for nonattendance and noncompliance. She said that continuing services would not likely result in reunification between the McLen-nan and her children because she had not taken advantage of any services thus far. On cross-examination, Parker said that DHS had provided McLennan with a bus pass and that she had a job at the Little Rock Zoo. Later, she testified that she did not think it was possible for McLennan to comply with the case plan even if she was given more time and that the children had been out of McLennan’s custody almost fifteen months. And she explained that McLennan had not completed individual counseling, which would teach her ways to protect her children and think about who she lets watch them.

DHS Adoption Specialist Jessica Warren testified that the juveniles are adoptable and that the department had identified 53 families “for them together.”

McLennan then made a general directed-verdict motion, which the court denied.

For her part, McLennan testified that she had four or five caseworkers throughout the case and that she went to a drug- and-alcohol assessment in July. She said that she had | ¿provided for her children since birth, that she had let her grandmother watch the kids, and that “it just happened that my mother pops up at my grandmother’s house” when the event occurred. On cross-examination, she testified that she learned things about the case through A.R. and that “no one would call me or tell my anything” and that if she had more time she could complete the services. Fifteen-year-old A.R. testified that she did not want to be adopted and that she wanted to be with her mom and brother.

In its written order terminating McLen-nan’s parental rights, the court found that the children had been out of McLennan’s custody for thirteen months and that she was “no closer to having the juveniles returned to her than she was when they came in to care.” Among other things, the court found that there was little likelihood that further services would result in successful reunification and that McLennan had “every opportunity to participate in those services.” The court was concerned that McLennan “has taken no responsibility for the juveniles’ removal.” Among other things, it wrote:

[Mjother and her children love each other and want to be together, but it is mother, and not the children who caused the case to be at the point it is today ,., The Court knows the juveniles do not want to be adopted but they are juveniles—not adults. The Court certainly takes their concerns and wishes into consideration, but the Court, ultimately, has to determine their best interest.

The court terminated McLennan’s parental rights on all three grounds that DHS had alleged. Counsel states in her no-merit brief that any argument challenging the statutory grounds for termination or the circuit court’s “best interest” findings would be wholly frivolous.

_kIL

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 on 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.

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Related

Linker-Flores v. Arkansas Department of Human Services
194 S.W.3d 739 (Supreme Court of Arkansas, 2004)
Sims v. Ark. Dep't of Human Servs.
2015 Ark. App. 137 (Court of Appeals of Arkansas, 2015)
Chaffin v. Arkansas Department of Human Services
2015 Ark. App. 522 (Court of Appeals of Arkansas, 2015)
Harper v. Arkansas Department of Human Services
378 S.W.3d 884 (Court of Appeals of Arkansas, 2011)
Cheney v. Arkansas Department of Human Services
396 S.W.3d 272 (Court of Appeals of Arkansas, 2012)
Pratt v. Arkansas Department of Human Services
413 S.W.3d 261 (Court of Appeals of Arkansas, 2012)

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Bluebook (online)
2017 Ark. App. 460, 528 S.W.3d 854, 2017 Ark. App. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclennan-v-arkansas-department-of-human-services-arkctapp-2017.