Davis v. Ark. Dep't of Human Servs.

Cite as 2017 Ark. App. 275

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-17-32
Opinion Delivered May 3, 2017

STEPHANY D. DAVIS AND DANIEL APPEAL FROM THE PULASKI
LEE BROWN COUNTY CIRCUIT COURT,
APPELLANTS ELEVENTH DIVISION
V. [NO. 60JV-15-949]

ARKANSAS DEPARTMENT OF HONORABLE PATRICIA JAMES,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED; MOTIONS TO WITHDRAW
GRANTED

DAVID M. GLOVER, Judge

Stephany Davis and Daniel Brown 1 appealed separately from the termination of their

parental rights to two minor children, A.B. (DOB 8-24-2011) and D.B. (DOB 5-12-2015).

Stephany has another child, D.A.B. (DOB 5-7-2008), who is in the custody of Stephany’s

mother and is not part of this case. Stephany’s and Daniel’s attorneys have filed no-merit

briefs and motions to withdraw pursuant to Linker-Flores v. Arkansas Department of Human

Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6-9 of the Rules of the Arkansas

Supreme Court and Court of Appeals, setting forth the adverse rulings, explaining why each

ruling would not support a meritorious argument for reversal, and concluding that an appeal

1
As noted by the trial court in the termination order, “Mr. Brown never completed
DNA testing in this matter. However, he and mother cohabited before and at the time of
removal of the children. He is listed in the Putative Father Registry regarding both children,
and he is named on D.B.’s birth certificate. Therefore, this Court is treating him as though
parental rights have attached to both children.”
Cite as 2017 Ark. App. 275

in this case would be wholly without merit. The clerk of our court sent copies of the

pertinent briefs and motions to withdraw to Stephany and Daniel, informing them of their

right to file pro se points for reversal pursuant to Rule 6-9(i)(3) of the Rules of the Arkansas

Supreme Court and Court of Appeals. Neither one filed points. We affirm the orders

terminating the parental rights of Stephany and Daniel, and we grant their attorneys’

motions to be relieved as counsel.

A petition for ex parte emergency custody was filed on July 2, 2015. The supporting

affidavit explained that the Arkansas Department of Human Services (DHS) had earlier

received a report of inadequate supervision in May 2015 based on Stephany’s positive test

results for opiates and morphine and her child, D.B., being in the hospital because of severe

morphine withdrawal. The hospital also reported concerns about the parents not visiting

the child, which continued, and when the parents did visit, they exhibited “sporadic

behavior,” raising concerns of drug use. When the family-service worker tried to contact

Stephany and Daniel at Daniel’s parents’ house (where Stephany and Daniel were living),

the grandparents expressed concern of renewed drug use. On June 30, 2015, DHS exercised

a seventy-two-hour hold on the two children. A.B. was placed in a foster home, and D.B.

remained in the hospital. The affidavit also noted a history of unsubstantiated findings

concerning this family.

On July 8, 2015, the trial court entered its probable-cause order based on the parties’

stipulations and ordered services, noting that DHS had not made reasonable efforts to

prevent removal of the children. On August 7, 2015, the paternal grandparents filed a

motion to intervene, asserting that their son, Daniel, had never been married to Stephany,

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but that he had acknowledged paternity through the Putative Father Registry. They further

stated A.B. had been under their physical care since her birth and sought appointment as

guardians of both children. The trial court denied the motion on August 27, 2015,

explaining that all of the requested relief could be accomplished without granting intervenor

status.

The adjudication order was entered on September 2, 2015, with the parents

stipulating to dependency-neglect based on parental unfitness due to drug use and the trial

court finding the same. The trial court found that DHS had made reasonable efforts and set

reunification as the goal of the case.

On October 21, 2015, the trial court entered an order relieving the court-appointed

counsel for Stephany, finding the parents were “playing games” and not providing complete

financial information as ordered.

On December 9, 2015, the trial court entered a review order, finding the parents

were not in compliance, setting concurrent goals of reunification and adoption, suspending

Daniel’s visitation, and finding that, “[b]ased on the information in the psychological

evaluation, [Daniel’s] parents are not considered for placement, nor are his aunt and uncle.”

A contempt order against Daniel was also entered on December 9, 2015, arising from events

that took place during the review hearing when Daniel “was given a chance to settle down

– he did not, but escalated & became hostile & disruptive to the Court.” He was ordered

to spend three days in jail.

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On June 1, 2016, the trial court entered a permanency-planning order. The trial

court found Stephany was “barely” in compliance and Daniel was not in compliance. The

goal of the case was changed to termination and adoption.

On July 19, 2016, DHS filed a petition for termination of parental rights. In an

August 1, 2016 status-report order, the trial court noted DHS had not been able to obtain

personal service on the parents and “preliminarily appointed” counsel for each parent.

Following the termination hearing, the trial court entered its termination order on October

21, 2016, and specifically noted Stephany and Daniel were present at the hearing with

counsel and no service issues were raised. The order also found the Indian Child Welfare

Act (ICWA) did not apply because the father’s application, completed two days before the

hearing, was not adequate; the three alleged statutory grounds for termination had been

proved ((1) twelve months/failure to remedy, (2) subsequent factors, and (3) aggravated

circumstances); and it was in the children’s best interests to terminate, finding they were

adoptable and that continuing contact with either parent “would result in harm to the

children.” The parents’ separate notices of appeal followed.

We review cases terminating parental rights de novo. Ford v. Arkansas Dep’t of Human

Servs., 2017 Ark. App. 211. At least one statutory ground for termination must be proved

by clear and convincing evidence, and in addition, it must be established that it is in the

children’s best interest to terminate parental rights. Id. 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. Id. Our inquiry on appeal is whether the trial court’s finding that

the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A

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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. Id.

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

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

may file a no-merit petition and move to withdraw. Poss v. Arkansas Dep’t. of Human Servs.,

2014 Ark. App. 514, 443 S.W.3d 594. The petition must include an argument section that

lists all adverse rulings the parent received at the circuit court level and explain why each

adverse ruling is not a meritorious ground for reversal. Id. The petition must also include an

abstract and addendum containing all rulings adverse to the appealing parent that were made

during the hearing from which the order on appeal arose. Id. Stephany’s and Daniel’s

counsel have each determined there are no meritorious bases for appeals in this case. We

agree.

Stephany

Stephany’s counsel explains she made no objections during the termination hearing,

so the primary adverse ruling is the trial court’s termination of Stephany’s parental rights.

She further explains why a challenge to the sufficiency of the evidence supporting the

termination would not provide a meritorious argument for reversal.

The trial court found DHS had proved the three statutory grounds for termination

alleged in its petition: 1) twelve-month/failure to remedy, 2) subsequent factors, and 3)

aggravated circumstances. Aggravated circumstances include a situation in which the trial

court determines there is little likelihood that services to the family would result in successful

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reunification. Counsel explains why this ground for termination would not provide a

meritorious basis for reversal, and our review of the record convinces us she is correct.

This case originated when DHS received a hotline call reporting Stephany had tested

positive for benzos and opiates, and her newborn child, D.B., had tested positive for opiates

and morphine and was experiencing withdrawal from the morphine. When efforts to handle

the matter as a protective-services case failed for lack of parental compliance, D.B. and A.B.

were removed from the parents’ custody on June 30, 2015. Both Stephany and Daniel

stipulated to dependency-neglect based on parental unfitness and drug use (positive for

opiates) at the adjudication hearing. The DHS supervisor further testified that the parents’

lack of compliance throughout the course of the case had prevented any trial placements for

the children. She listed the services that had been offered to the parents during the course

of the case, including psychological evaluations, parenting classes, transportation, drug and

alcohol assessment, random drug screens, inpatient drug treatment, referral to the Child

Study Center for counseling; and to the children, including a PACE evaluation, medical

services, counseling, day care, transportation, foster homes, caseworkers, and board

payment.

With respect to Stephany specifically, the supervisor testified Stephany had been

cooperative with DHS at times; she completed her psychological evaluation; she went to

the Child Study Center and participated in the intake with A.B., but that service was

discontinued because the parents were not visiting. She also testified Stephany completed

her drug-and-alcohol assessment, was ordered into inpatient treatment, went there on

September 21 but left on September 28, 2015, because Daniel thought she was cheating on

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him; she re-entered on October 19 but was discharged on October 29 because she tested

positive for methamphetamine; she next went to drug treatment at Wilbur D. Mills on

February 24, 2016, completed the treatment on March 22, 2016, and also had mental-health

counseling. She said the last time Stephany visited with the children was August 4, 2015,

and A.B. was upset by Stephany not showing up for visits. DHS drug screens for Stephany

showed positive test results were obtained on 7/2/2015, 9/1/2015, 9/2/2015, 9/11/2015,

10/9/2015, 10/29/2015, 2/24/2016; the last time she submitted to a drug screen at DHS

was in April 2016; and she had acknowledged using heroin; and family members had

reported seeing needle marks on her arm.

The DHS supervisor also testified DHS was not sure about the stability of housing;

the parents’ relationship is very volatile, and Stephany had admitted to her that Daniel had

been abusive; and the parents have a chaotic lifestyle and are not able to provide the stability

the children need. When the trial court asked what the parents had done since the last

hearing on June 1, 2016, to try to avoid having a termination hearing, she responded she

had not gotten anything from the parents; she had reached out to them first in hope they

would take the responsibility as parents to make contact with her so things could be taken

care of; she was not going to chase them down because by that point, it was time for them

to chase her down; and they had the contact information but they never made an effort to

contact DHS.

In short, Stephany was never fully compliant with the case plan. Her efforts to

remedy her drug and mental-health problems so she could reunite with her children were

sporadic and halfhearted, as demonstrated by her failure to maintain consistent contact with

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DHS, her failure to undergo therapy for herself and to attend counseling with A.B., and her

failure to submit to random drug screening so she could visit her children. She had not

visited the children since August 2015; she did not submit sign-in sheets from AA/NA

meetings; and her relationship with Daniel was admittedly toxic, but her attempt to live

independently from him was short-lived. After fifteen months of services, the trial court’s

conclusion that there was little likelihood additional services would result in successful

reunification was not clearly erroneous; therefore, on the record before us, there is no

meritorious basis for concluding the trial court clearly erred in finding DHS had proved the

statutory ground of “aggravated circumstances.” Because the establishment of one statutory

ground for termination is sufficient, it is unnecessary to address the other two grounds also

found by the trial court. Ford, supra.

In addition to finding a statutory ground for termination, an order terminating

parental rights must also be based on clear and convincing evidence that the termination is

in the children’s best interest. Id. When making a best-interest determination, the trial court

must consider the likelihood the children will be adopted and the potential harm they would

face if returned to the parents. Id.

Here, the adoption specialist testified there were no unusual factors in this case that

would make adoption difficult and that in her opinion these children were adoptable. With

respect to potential harm, the same facts supporting the aggravated-circumstances ground

for termination support the trial court’s conclusion that return of the children to Stephany

would result in harm to them. Consequently, the trial court’s best-interest finding provides

no meritorious basis for reversal.

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In an abundance of caution, Stephany’s counsel also addresses the following rulings,

which provide no basis for reversal:

1) The entry of the termination order effectively denied Stephany’s request for more

time to reunite with the children, which was made at the conclusion of the termination

hearing. For all of the reasons previously discussed, the denial of this request for more time

does not provide a meritorious basis for reversal.

2) The trial court’s finding that ICWA did not apply in this case. This issue will be

discussed with respect to Daniel, but it provides no meritorious basis for reversal with respect

to either parent.

3) The trial court’s initial finding that DHS failed to provide reasonable efforts to

prevent the removal of the children from Stephany and Daniel. This finding was made at

the beginning of the case and related only to the removal of the children—not efforts to

reunite the family; in all subsequent orders, the trial court found that DHS made reasonable

efforts; and no argument was ever made below to preserve or develop a position that this

finding constituted reversible error or that DHS should have done more to help the parents.

It provides no meritorious basis for reversal with respect to either parent.

4) The trial court’s order relieving Stephany’s court-appointed counsel after the

adjudication hearing. Both Stephany and Daniel were represented by court-appointed

counsel at the termination hearing, and no arguments were ever raised below concerning

lack of representation. Consequently, an argument based on lack of representation would

not be properly preserved and could not serve as a meritorious basis for reversal.

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5) Relative placement. As explained by counsel, DHS considered relatives during the

course of this case, but found that placement with them was not acceptable; the denial of

the paternal grandparents’ request to intervene to seek guardianship was not appealed; and

no arguments regarding relative placement were raised at the termination hearing. Any

argument regarding relative placement was therefore not properly preserved and cannot

provide a meritorious basis for reversal.

Daniel

All of the previously recounted facts and discussions that also pertain to Daniel are

incorporated herein by reference. As with Stephany, the primary adverse ruling concerning

Daniel was the termination of his parental rights.

The trial court found DHS had proved the three statutory grounds for termination

alleged in its petition for terminating Daniel’s parental rights: 1) twelve-month/failure to

remedy, 2) subsequent factors, and 3) aggravated circumstances. As previously discussed,

aggravated circumstances include a situation in which the trial court determines there is little

likelihood services to the family would result in successful reunification. Daniel’s counsel

explains why this ground for termination would not provide a meritorious basis for reversal,

and as with Stephany, our review of the record convinces us he is correct.

At the termination hearing, the DHS supervisor testified with respect to Daniel

specifically that at times he was cooperative with DHS, and he had completed his

psychological evaluation (even though he missed the first one), the Child Study Center

intake, parenting classes, and a drug-and-alcohol assessment. However, she also testified he

had not submitted to a DNA test and had not provided a copy of the acknowledgment of

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paternity; there was no proof he completed outpatient treatment; when inpatient treatment

was recommended on September 18, 2015, he finally went to Recovery Centers of Arkansas

on March 2, 2016, but was there only about a week because he had been discharged for

bringing someone else’s prescription medication to the facility; to her knowledge, he had

not completed rehab anywhere; he had not provided AA/NA sign-in sheets or copies of

medication prescriptions; and he had not yet provided her with information regarding

mental-health treatment or counseling that he was allegedly receiving. 2 She stated the last

time Daniel visited with the children was the same as Stephany, August 4, 2015; his visits

were suspended until he submitted to a hair-follicle test, continued drug screens, and

provided proof of attendance in mental-health counseling and medication management, but

he had never supplied her with any of that information. Daniel’s drug screens revealed

positive results on 7/2/2015, 9/1/2015, and 10/9/2015. He tested negative on 1/6/2016

and refused testing on 4/22/2016; in addition, she said there were several times the

caseworker called him in for drug screens but he did not show up for them.

As we previously concluded with respect to Stephany, after fifteen months of

services, the trial court’s conclusion that there was little likelihood additional services would

result in successful reunification was not clearly erroneous. Therefore, on the record before

us, there is no meritorious basis for concluding that the trial court clearly erred in finding

DHS had proved the statutory ground of “aggravated circumstances.” Because the

2
Addressing Daniel’s mental-health issues was critical because he had been diagnosed
with disorders that affected his ability to parent.

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establishment of one statutory ground for termination is sufficient, it is unnecessary to

address the other two grounds also found by the trial court. Ford, supra.

In addition, the best-interest finding by the trial court provides no meritorious basis

for reversal because DHS established the children are adoptable and, as with Stephany, the

facts supporting the aggravated-circumstances ground for termination with respect to Daniel

also support the trial court’s conclusion that returning the children to Daniel would be

harmful.

In addition to the termination of Daniel’s parental rights, the trial court found ICWA

did not apply. His counsel explains that this finding does not provide a meritorious basis for

reversal, and we agree. Daniel attempted to establish the applicability of ICWA at the outset

of the termination hearing—despite the fact the trial court had earlier determined that

ICWA did not apply in the probable-cause order dated July 8, 2015. The only

documentation he submitted in support of his assertion was a form application for

membership in the Cherokee Nation he filed only a couple of days prior to the hearing. In

order to establish the applicability of ICWA, a child who is the subject of a dependency-

neglect action must be an “Indian child,” which is defined as any unmarried person who is

under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership

in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. §

1903(4). Here, there was no evidence A.B. and D.B. satisfied these requirements. It is

undisputed the children are not members of an Indian tribe, and the only evidence submitted

was the form application prepared by Daniel two days before the hearing—there was no

evidence the application had been accepted or that the children were in any other way

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eligible for membership, and there was not even any evidence Daniel was their biological

father, although he did not dispute that fact. This issue provides no meritorious basis for

reversal.

Finally, Daniel’s counsel also discusses the fact his visitation had been suspended by

the trial court until he provided the court with a negative hair-follicle test and proof of

mental-health treatment, which he never did. Concerned that this issue might possibly be

regarded as an adverse ruling, counsel explains why it would not provide a meritorious basis

for reversal, and we agree. The issue was not raised or developed with the trial court, and

consequently was not preserved for our review. It provides no meritorious basis for reversal

of the termination of Daniel’s parental rights.

While Daniel’s counsel does not address some of the additional issues discussed by

Stephany’s counsel—in particular, the trial court’s early finding that DHS had failed to

provide reasonable efforts in preventing removal of the children, any issues related to lack

of representation, and any issues related to relative placement—we conclude they were

raised by Stephany’s counsel in an abundance of caution, were not preserved for our review,

and provide no meritorious basis for reversal.

Based on our examination of the record and the briefs before us, we grant both

counsels’ motions to withdraw, and we affirm the termination of both Stephany’s and

Daniel’s parental rights.

Affirmed; motions to withdraw granted.
VIRDEN and HARRISON, JJ., agree.

Tabitha McNulty, Arkansas Public Defender Comm’n, for appellant Stephany Davis.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant Daniel Brown.
No response.

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