Mitchell v. Arkansas Department of Human Services

2013 Ark. App. 715, 430 S.W.3d 851, 2013 WL 6252532, 2013 Ark. App. LEXIS 738
CourtCourt of Appeals of Arkansas
DecidedDecember 4, 2013
DocketCV-13-678
StatusPublished
Cited by52 cases

This text of 2013 Ark. App. 715 (Mitchell 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
Mitchell v. Arkansas Department of Human Services, 2013 Ark. App. 715, 430 S.W.3d 851, 2013 WL 6252532, 2013 Ark. App. LEXIS 738 (Ark. Ct. App. 2013).

Opinion

KENNETH S. HIXSON, Judge.

| ¶ Appellant Amanda Mitchell and appellant John Mitchell appeal separately from the termination of their parental rights to their twelve-year-old son T.M., eleven-year-old son Z.M., and eight-year-old daughter L.M. Amanda’s sole argument on appeal is that there was insufficient evidence to support the termination of her parental rights. John’s counsel has filed a no-merit appeal and a motion to withdraw, stating that there is no issue of arguable merit to advance on appeal and that she should be relieved of counsel. We affirm both appeals, and we grant John’s counsel’s motion to be relieved.

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; these must be proved by clear and convincing evidence. Ark.Code Ann. § 9-27-341 (Supp.2011); M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). 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. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). 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).

Appellee Department of Human Services (DHS) has an extensive history with this family. It began in 2003, when the appellants’ children were removed from their custody for about a month due to inadequate supervision and incarceration of both parents for endangerment of a minor. In June 2010 the children were placed in foster care at Amanda’s request due to alcohol abuse and domestic violence in the home. After Amanda and John completed various DHS services including counseling and parenting classes, the children were returned to them in May 2011. In December 2011, DHS opened a protective-services case based on findings that the parents stayed drunk most of the time, that John abused Amanda in front of the children, and that the children were scared at home due to the domestic violence. It was found that Amanda had recently been arrested for public intoxication, disorderly conduct, and criminal mischief. John tested positive for THC, and Amanda refused to take a drug test.

|sThe most recent removal of the children occurred on March 13, 2012, when the trial court entered an ex parte order for emergency DHS custody. The emergency order was based on an affidavit by a family service worker regarding events that occurred on the morning of March 10, 2012. On that morning, DHS received a call stating that Amanda was drunk and going from house to house in her neighborhood. The police were dispatched to the appellants’ residence, and the police found Amanda to be intoxicated with multiple bruises, swelling, and abrasions on her face and neck. Amanda registered. 19 on a breathalyzer test, and she indicated that John had caused her injuries the night before when they were drinking whiskey. Amanda said that John had whipped her with a dog leash and locked her in the dog pen in their living room, which occurred in the presence of their daughter. Amanda’s daughter had to let Amanda out of the cage. John had left home with the boys before the police arrived that morning.

On April 13, 2012, the trial court entered an order adjudicating the children dependent/neglected due to the parents’ alcohol abuse and domestic violence. The goal of the case was reunification, and the parents were given visitation supervised by DHS. Both Amanda and John were ordered to submit to drug and alcohol screens, attend parenting classes, attend counseling, submit to a psychological evaluation and follow any recommendations, attend anger-management classes, and maintain stable housing and employment. John was ordered to submit to a drug-and-alcohol assessment, and Amanda was ordered to complete inpatient substance-abuse treatment.

|4On April 16, 2012, the trial court entered an emergency ex parte order suspending John’s visitation, and a subsequent order suspending John’s visitation was entered on June 11, 2012. These orders were based on proof that, after the children were taken into DHS custody, the appellants were drinking together on March 28, 2012, and John dragged Amanda by her hair, kicked her, sprayed roach spray in her face, and choked her until she blacked out. As a result of this abuse Amanda suffered broken ribs, a punctured lung, and a lacerated liver, for which she underwent surgery and an extended stay in the intensive-care unit. These acts ultimately resulted in a felony conviction against John for domestic battery, for which he received a two-year prison sentence followed by a four-year suspended imposition of sentence.

On November 2, 2012, the trial court entered an order terminating reunification services because there was little likelihood that further services would result in successful reunification. The no-reunification order was based on proof that John was in prison, and that Amanda was not visiting the children and continued to drink alcohol excessively. An affidavit of a family service worker stated that Amanda drank alcohol for a week straight beginning on September 9, 2012, and then tried to commit suicide. The affidavit further stated that Amanda was unstable and had failed to cooperate with DHS or the court’s orders. On November 21, 2012, the trial court entered a permanency-planning order changing the goal of the case to termination of parental rights and adoption.

DHS filed a petition to terminate both parents’ parental rights on December 14, 2012. The termination hearing was held on April 15, 2013.

[BOn May 3, 2013, the trial court entered an order terminating both Amanda’s and John’s parental rights to their three children. The trial court found by clear and convincing evidence that termination of parental rights was in the children’s best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of then-parents as required by Ark.Code Ann. section 9-27-341(b)(3)(A)(i) & (ii) (Supp.2011). The trial court also found clear and convincing evidence of these two statutory grounds under subsection (b)(3)(B):

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Bluebook (online)
2013 Ark. App. 715, 430 S.W.3d 851, 2013 WL 6252532, 2013 Ark. App. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-arkansas-department-of-human-services-arkctapp-2013.