Summer Rauls v. Arkansas Department of Human Services and Minor Child

2021 Ark. App. 366

• Court: Court of Appeals of Arkansas
• Decided: September 29, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 366 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION I integrity of this document No. CV-21-98 2023.07.11 14:25:38 -05'00' 2023.003.20215 Opinion Delivered September 29, 2021

SUMMER RAULS APPEAL FROM THE JEFFERSON APPELLANT COUNTY CIRCUIT COURT [NO. 35JV-20-63] V.

ARKANSAS DEPARTMENT OF HONORABLE EARNEST E. HUMAN SERVICES AND MINOR BROWN, JR., JUDGE CHILD APPELLEES AFFIRMED; MOTION TO WITHDRAW GRANTED

PHILLIP T. WHITEAKER, Judge

Appellant, Summer Rauls, appeals a Jefferson County Circuit Court order

terminating her parental rights to DG4. 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) (2021), Rauls’s counsel has filed a motion to be relieved as counsel and a no-merit

brief asserting that there are no issues of arguable merit to support an appeal. The clerk of

our court sent copies of the brief and the motion to withdraw to Rauls, informing her of

her right to file pro se points for reversal pursuant to Rule 6-9(j)(3); she has not done so.

After examining the record, we are satisfied that there are no issues of arguable merit to

support an appeal. We therefore affirm the termination decision and grant counsel’s motion

to withdraw. I. Factual and Procedural History

Summer Rauls has an extensive history with the Arkansas Department of Human

Services (Department). She is the biological mother of DG1, DG2, CG, and DG3. In

September 2018, the Department removed DG1, DG2, and CG from the care and custody

of Rauls and instituted a dependency-neglect action for the safety of the children. 1 The

Department removed the children because Rauls had been arrested in a domestic-violence

incident involving Charles Gant. At the time of her arrest, Rauls was pregnant with DG3

and under the influence of drugs (THC) and alcohol. In that dependency-neglect

proceeding, the Department provided Rauls a myriad of services designed to rehabilitate

Rauls to prevent future drug and alcohol abuse. Despite these services, Rauls continued to

test positive.

In December 2018, the Department removed newborn DG3 from the care and

custody of Rauls after both Rauls and DG3 tested positive for cannabis. After DG3’s

removal, the Department continued to provide Rauls with services. 2

Despite these services, Rauls continued to test positive for alcohol and controlled

substances, including cocaine, methamphetamine, and THC. Her substance abuse

continued even during her pregnancy with DG4. During her seventh month of pregnancy

with DG4, Rauls tested positive for THC and cocaine. In addition to drug use, Rauls

1 This separate dependency-neglect action is only discussed herein for background purposes. 2 The services provided included employment services, drug assessments, drug screenings, psychological evaluation, parenting classes, legal services, inpatient and outpatient substance-abuse treatment, supervised visitation, home visits, housing, transportation, and individual and family counseling.

2 continued to be involved with domestic violence. In January 2020, Rauls assaulted Gant

with the altercation being captured in a video that was later posted online.

With all the continued substance abuse and violence, the Department was concerned

about Rauls’ unborn child and scheduled a staffing. Rauls did not attend, allegedly on the

advice of counsel. Ultimately, the Department determined it did not have jurisdiction over

Rauls’s unborn child. It did, however, continue to provide services to Rauls, including a

residential substance-abuse-treatment program. Unfortunately, Rauls attended this program

only three days because she was admitted into UAMS where DG4 was born prematurely

on January 25, 2020, weighing 1 pound 14.3 ounces.

After the birth of DG4, the Department removed him from the care and custody of

both parents, Rauls and Gant. 3 Although the meconium testing for DG4 was negative,

Rauls admitted using THC during her pregnancy, and the Department filed a petition for

dependency-neglect.

The court adjudicated DG4 dependent-neglected due to parental unfitness and made

a specific finding of aggravated circumstances based on little likelihood that services would

result in successful reunification. The court initially set reunification as a goal of the case and

ordered the Department to offer services. However, by the permanency-planning hearing

in August 2020, the court had changed the goal of the case to adoption on the basis of its

previous finding of aggravated circumstances; the parents’ lack of compliance with the

3 Gant was found to be DG4’s putative father, and the court found that he had sufficient significant contacts with the child for his rights to have attached. Although the court also terminated Gant’s parental rights, he did not appeal the termination decision and is not a party to this appeal. Therefore, the facts have focused only on Raul’s actions and those services provided to her.

3 court’s orders; the parents’ continued illegal drug and alcohol use; their failure to complete

rehabilitation on numerous occasions; and their overall history with the court. 4

Shortly thereafter, the Department filed a petition for termination of parental rights.

In November 2020, the court conducted a termination hearing. Rauls and Gant did not

attend the hearing. They initially appeared at the courthouse but left once they were asked

to submit to a drug screen. As a result, the case proceeded with Audrey Martin, a supervisor

with Jefferson County DCFS; Patricia Shavers, an adoption specialist; and Kyla Tubbs, the

foster mother, testifying in support of termination. On November 19, 2020, the court

entered an order terminating Rauls’s parental rights, citing aggravated circumstances and

subsequent other factors as grounds for termination. The court further found that

termination was in DG4’s best interest; that he is adoptable; and that he would be subject

to potential harm if returned to Rauls’s care. Rauls appeals the termination decision.

II. Standard of Review

We review termination-of-parental-rights cases de novo. Hune v. Ark. Dep’t of Hum.

Servs., 2010 Ark. App. 543. We will not reverse the circuit court’s ruling unless its findings

are clearly erroneous. Holmes v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 495, 505 S.W.3d

730.

In order to terminate parental rights, a circuit court must find by clear and convincing

evidence that termination is in the best interest of the juvenile, taking into consideration (1)

the likelihood that the juvenile will be adopted if the termination petition is granted; and

4 The permanency-planning order was not filed until September 4, 2020.

4 (2) the potential harm, specifically addressing the effect on the health and safety of the child,

caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i) & (ii) (Supp. 2021). The court must also find by clear and convincing

evidence one or more of the grounds for termination listed in section 9-27-341(b)(3)(B) in

order to terminate parental rights.

III. Analysis

Counsel has filed a no-merit brief addressing two adverse rulings—the termination

decision and an evidentiary ruling—and claiming that there are no issues of arguable merit

for reversal. We agree and conclude that there can be no meritorious challenge to the

sufficiency of the evidence to support the termination of Rauls’s parental rights or to the

circuit court’s evidentiary ruling.

A. Termination of Parental Rights

Our caselaw recognizes that the termination of parental rights is an extreme remedy

and in derogation of the natural rights of the parents. Fox v. Ark. Dep’t of Hum. Servs., 2014

Ark. App. 666, 448 S.W.3d 735. In termination-of-parental-rights matters, the circuit court

is required to follow a two-step process by finding first that the parent is unfit and second

that termination is in the best interest of the child. T.J. v. Ark. Dep’t of Hum. Servs., 329

Ark. 243, 947 S.W.2d 761 (1997); Smith v. Ark. Dep’t of Hum. Servs., 2013 Ark. App. 753,

431 S.W.3d 364. As a result, the Department bears a heavy burden in seeking to terminate

the relationship of parent and child. Fox, supra.

5 1. Statutory grounds

To terminate parental rights, a court must find sufficient proof of one or more of the

statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). Here, the court

terminated Rauls’s parental rights finding both aggravated circumstances and subsequent

other factors as grounds for termination. Although the circuit court found two statutory

grounds for termination, only one ground is necessary to support termination. Reid v. Ark.

Dep’t of Hum. Servs., 2011 Ark. 187, 380 S.W.3d 918. We hold that there was ample

evidence submitted to support the court’s subsequent-other-factors finding.

The subsequent-factors ground, codified at Arkansas Code Annotated section 9-27-

341(b)(3)(B)(vii)(a), provides that termination is appropriate when

other 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 parents.

Regarding this ground, the circuit court found that Rauls had exhibited a disinterest in DG4

throughout the case, was not participating in case-plan services, and was not complying with

the court’s orders. The Department presented testimony that Rauls had not maintained

contact with DG4 since August 2020, that DG4 was medically fragile, and that Rauls had

made no effort to contact the Department regarding DG4’s condition. Moreover, the court

noted that Rauls had participated in only one staffing and, out of the four court hearings

scheduled in the case, had attended only two. In fact, Rauls left the termination hearing

after being asked to submit to a drug screen. As a result, the court concluded that Rauls

6 appeared to have voluntarily disconnected herself from DG4 and that the issues that caused

DG4 to be taken into custody (illegal drug usage, domestic violence, and inadequate

housing) still existed. As such, the court found that her actions demonstrated an incapacity,

indifference, or unwillingness to rehabilitate the circumstances preventing the placement of

DG4 into her custody.

The court’s findings in this regard are supported by the testimony and evidence

presented at the termination hearing and are sufficient to support a subsequent-other-factors

finding. At the very least, the evidence reflects Rauls’s failure to comply with the case plan

and the court’s orders, and we have stated that a failure to comply with court orders can

serve as a subsequent factor on which termination of parental rights can be based. See

McCormick v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 44, 594 S.W.3d 115; Gonzalez v.

Ark. Dep’t of Hum. Servs., 2018 Ark. App. 425, 555 S.W.3d 915. Accordingly, we hold that

the circuit court did not clearly err in finding that the Department proved this ground.

2. Best interest

To terminate parental rights, a court must also find that termination of parental rights

is in the child’s best interest, taking into consideration two statutory factors: (1) the

likelihood of adoption if parental rights are terminated and (2) the potential harm caused by

continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Here, the court

considered both statutory factors in light of the overall evidence, finding that termination

was in DG4’s best interest. Counsel contends that there are no issues of arguable merit for

reversal in challenging this best-interest finding. We agree.

7 Concerning adoptability, the Department presented ample evidence that DG4 is

adoptable. Admittedly, DG4 has significant medical conditions requiring a strict feeding

schedule and a clean and stable environment. The adoption specialist, however, testified he

is adoptable even with his medical issues and that there were 146 families that would accept

a child with his characteristics. Reed v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 416, 375

S.W.3d 709. The foster mother also testified that she was willing to adopt DG4.

Likewise, the Department produced evidence of potential harm. At the time of

termination, Rauls had had virtually no contact with DG4 for several months, had not

shown any significant interest in learning about properly caring for him, had moved with

no forwarding address, and had not addressed her substance-abuse or domestic-violence

issues. Placing a child with DG4’s medical issues in such a risky and unstable environment

would be potentially harmful to him. Accordingly, the circuit court’s finding that

termination was in DG4’s best interest was not clearly erroneous.

B. Adverse Ruling

Counsel also identified one adverse evidentiary ruling. At the termination hearing,

the Department supervisor was asked whether the court had made a finding that Rauls had

not made significant, measurable progress in the case involving DG4’s siblings. Counsel

objected arguing that DG4’s case should stand on its own. The court overruled the

objection.

We will not reverse a circuit court’s ruling on admissibility of evidence absent a

manifest abuse of discretion. Barton v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 239, 576

S.W.3d 59. A mere showing that the circuit court erroneously admitted evidence will not

8 support a reversal absent a showing of prejudice. Id. Without any showing of prejudice, any

judicial error as to the admissibility of evidence is harmless error and cannot be grounds for

disturbing a circuit court’s order. Id. at 13–14, 536 S.W.3d at 674. Here, although the court

overruled the objection, the witness did not answer, and the Department did not pursue

that line of questioning further. Thus, even if the court’s ruling was incorrect, there was no

prejudice shown.

Having carefully examined the record and the brief, it is clear that counsel has

complied with the requirements established by the Arkansas Supreme Court for no-merit

appeals in termination-of-parental-rights cases and that this appeal is wholly without merit.

Accordingly, we affirm the order terminating Rauls’s parental rights and grant counsel’s

motion to withdraw.

Affirmed; motion to withdraw granted.

GRUBER and VAUGHT, JJ., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

One brief only.