Natalie Davison and Garrison Tuck v. Arkansas Department of Human Services and Minor Child

2025 Ark. App. 49

• Court: Court of Appeals of Arkansas
• Decided: January 29, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 49 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-24-169

Opinion Delivered January 29, 2025 NATALIE DAVISON AND GARRISON TUCK APPEAL FROM THE SCOTT COUNTY APPELLANTS CIRCUIT COURT [NO. 64JV-22-26] V. HONORABLE TERRY SULLIVAN, JUDGE ARKANSAS DEPARTMENT OF MOTION TO WITHDRAW DENIED; HUMAN SERVICES AND MINOR REBRIEFING ORDERED CHILD APPELLEES

WENDY SCHOLTENS WOOD, Judge

Appellants Natalie Davison and Garrison Tuck appeal from the Scott County Circuit

Court’s order terminating their parental rights to Minor Child (MC) (02/14/22). 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(j), their counsel has filed a motion to

withdraw and a no-merit brief asserting that there are no issues of arguable merit to support

an appeal. The clerk of this court sent a copy of the brief and the motion to withdraw to

each party, informing them of their right to file pro se points for reversal pursuant to Rule

6-9(j)(3), but they have not done so. We deny counsel’s motion to withdraw and order

rebriefing. In termination-of-parental-rights matters, the circuit court is required to follow a two-

step process by finding by clear and convincing evidence first that the parent is unfit and

second that termination is in the best interest of the child. Gonzalez v. Ark. Dep’t of Hum.

Servs., 2018 Ark. App. 425, at 5, 555 S.W.3d 915, 918. The first step requires proof of one

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

2023). The second step requires consideration of whether the termination of parental rights

is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). When making a best-

interest finding, the circuit court is required to consider adoptability and the potential harm

to the health and safety of the child that would be caused by returning the child to the

custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).

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 brief and move to withdraw. Ark. Sup. Ct. R. 6-9(j)(1). Counsel’s

no-merit brief must include the following:

(A) The argument section of the brief shall list all adverse rulings to the appellant made by the circuit court on all objections, motions, and requests made by the party at the hearing from which the appeal arose and explain why each adverse ruling is not a meritorious ground for reversal.

(B) The statement of the case and the facts shall contain all rulings adverse to the appellant, made by the Circuit Court at the hearing from which the order of appeal arose.

Ark. Sup. Ct. R. 6-9(j)(1)(A)–(B). Our de novo review of the record in this case reveals

multiple deficiencies in counsel’s brief that require us to order rebriefing.

2 First, the statement of the case is deficient. Supreme Court Rule 4-2(a)(6) requires, in

part, that the statement of the case “identify and discuss all material factual and procedural

information contained in the record on appeal. Information in the appellate record is

material if the information is essential to understand the case and to decide the issues on

appeal.” Here, the statement of the case consists of only a brief recitation of the dates of the

hearings and orders without any reference to the specific facts of the case. In addition to

their appeal from the termination order, appellants have also appealed from the permanency-

planning order; however, the statement of the case lacks any discussion of what occurred at

both the permanency-planning hearing (PPH) and the termination hearing. What occurred

at both hearings is relevant to this no-merit appeal. Rule 6-9, which is specific to dependency-

neglect cases, also requires that the statement of the case in a no-merit brief include “all

rulings adverse to the appellant, made by the Circuit Court at the hearing from which the

order of appeal arose.” Ark. Sup. Ct. R. 6-9(j)(1)(B). Counsel’s statement of the case fails to

address any adverse rulings except the goal change made at the PPH and the termination

itself, which are only mentioned generically.

Second, the argument section fails to list all adverse rulings and explain why each

adverse ruling is not a meritorious ground for reversal. The no-merit brief fails to discuss

why there is no merit to the appeal of the PPH order. Although the brief contains a bare

assertion related to the PPH order, it lacks any legal analysis. In regard to the termination

order, counsel identifies and analyzes only one of the three statutory grounds relied upon by

the circuit court in terminating appellants’ parental rights. The analysis consists of one

3 sentence, which is clearly deficient. In addressing the circuit court’s best-interest

determination, counsel fails to address adoptability.

We are mindful that the supreme court in Sartin v. State, 2010 Ark. 16, 362 S.W.3d

877, noted that the failure to list and discuss all adverse rulings in a no-merit termination-

of-parental-rights case does not automatically require rebriefing if the ruling would clearly

not present a meritorious ground for reversal. However, we decline to overlook counsel’s

omissions in this case. The duty to review the record and provide this court with argument

as to why an appeal is without merit falls on parent counsel, not this court. We have ordered

rebriefing where counsel has failed to adequately address the statutory grounds for

supporting termination. See, e.g., Adams v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 106;

Washington v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 13. In the present case, counsel has

failed to adequately address both the statutory-grounds findings and the best-interest

determination.

We express no opinion on whether counsel should file a no-merit brief or whether

the brief should be an adversarial one; rather, we leave that to counsel’s professional

judgment. In either case, we order counsel to submit a substituted brief within thirty days of

this opinion. If counsel chooses to again file a no-merit brief, the clerk of this court will

forward the brief to the appellants so that, within thirty days, they will have the opportunity

to raise any points they so choose in accordance with Arkansas Supreme Court Rule 6-9(j)(3),

and DHS shall be afforded the opportunity to file a responsive brief.

Motion to withdraw denied; rebriefing ordered.

4 TUCKER and BROWN, JJ., agree.

Eden Law Firm, by: Kimberly Eden, for appellants.

One brief only.