Jones v. Ark. Dep't of Human Servs.2

Cite as 2014 Ark. App. 735

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-724

EUGENE JONES Opinion Delivered December 17, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
SIXTH DIVISION
ARKANSAS DEPARTMENT OF [NO. JN2013-356]
HUMAN SERVICES AND MINOR
CHILDREN HONORABLE JOYCE WILLIAMS
APPELLEES WARREN, JUDGE

AFFIRMED; MOTION TO
WITHDRAW GRANTED

WAYMOND M. BROWN, Judge

Appellant appeals from the circuit court’s termination of his parental rights to K.J.1

and K.J.2. 1 Appellant’s counsel has filed a motion to withdraw and a no-merit brief,

pursuant to Linker-Flores v. Arkansas Department of Human Services, 2 and Arkansas Supreme

Court Rule 6-9(i), 3 stating that there are no meritorious grounds to support an appeal.

The clerk mailed a certified copy of counsel’s motion and brief to appellant, informing

him of his right to file pro se points for reversal. Appellant failed to file pro se points for

1
The parental rights of the mother, Latasha Bankston, were terminated in the same
order, but she is not a party to this appeal.
2
359 Ark. 131, 194 S.W.3d 739 (2004).
3
(2011).
Cite as 2014 Ark. App. 735

reversal. We affirm the circuit court’s order terminating appellant’s parental rights and

grant counsel’s motion to withdraw.

K.J.2 was born to Latasha Bankston on July 5, 2012, weighing four pounds. Her

meconium tested positive for THC. Due to her gestational age of 32 weeks, K.J.2 was in a

neonatal intensive care unit with heart issues when a referral for investigation was made to

the Arkansas Department of Human Services (DHS). A family services worker made a true

finding of newborn illegal substance exposure as to K.J.2. A protective-services case was

opened on August 9, 2012, and appropriate services were provided. However, K.J.2 was

again admitted to Arkansas Children’s Hospital (ACH) on August 24, 2012, for severe acid

reflux and failure to gain weight; on September 5, 2012, for reflux; and on December 16,

2012, for a severe virus.

Throughout this time period, the hospital staff had had issues with the behavior of

Bankston and appellant, and DHS had had issues locating and communicating with both

parents. Accordingly, a medical staffing was held on January 17, 2013, following which

both parents were required to sign a behavior contract, the violation of which would

result in their restriction from the hospital.

Due to the appearance of mental instability on the part of Bankston, the controlling

nature of appellant, an inability to verify a home address for either parent to which K.J.2

could be released, and both parents’ lack of cooperation with ACH, Pulaski County

Home Health Unit and DHS, DHS took a 72-hour hold on K.J.2 on January 28, 2013. 4

4
DHS did not take a hold on K.J.1, believing that because he was not left in his
mother’s care alone, he could remain safe in the home.

2
Cite as 2014 Ark. App. 735

On January 31, 2013, DHS filed a petition for ex-parte emergency custody and

dependency-neglect as to K.J.2. The circuit court entered an ex-parte order for

emergency custody of K.J.2 on the same date; K.J.1 was permitted to remain in the

custody of Bankston and appellant.

Following a February 6, 2013 probable-cause hearing for K.J.2, the circuit court

entered a probable-cause order in which it took a 72-hour hold on K.J.1. Therein, it

found that probable cause existed, and still existed, to protect K.J.2. Also, because K.J.1

was in the home with Bankston and appellant, he was exposed to “the same dynamics of

the parent’s behaviors and interactions[,]” and because there was “[n]o credible evidence”

presented that K.J.1 was never left alone with Bankston, the court took a 72-hour hold on

K.J.1 at the hearing. 5 An order reflecting the same was entered February 6, 2013. 6

Following a February 20, 2013 probable-cause hearing as to K.J.1, the circuit court

entered an order on the same date finding that probable-cause existed, and still existed, to

protect K.J.1 and that it was in his best interest to continue in DHS’s legal custody.

5
We note that DHS filed an amended petition for ex parte emergency custody and
dependency-neglect, including K.J.1, on February 11, 2013. This document is not in the
addendum. However, we find that appellant’s failure to include the amended petition does
not prevent this court from addressing the merits of this appeal because the circuit court’s
February 6, 2013 order had already directed that K.J.1 be removed from the home.
Accordingly, DHS’s petition was an unnecessary, additional formality. However, the court
did enter an amended ex parte order for emergency custody granting DHS’s amended
petition, including both children, on February 12, 2013.
6
Following a February 14, 2013 hearing, the court entered an order on the same
date setting the date for the probable-cause hearing as to K.J.1 for February 20, 2013. The
court detailed the reasons for the delay in issuance of the amended ex parte order for
emergency custody and advised that, despite the delay, said order was still issued within
the five-business-day time frame set forth in Arkansas Code Annotated section 9-27-315.

3
Cite as 2014 Ark. App. 735

Therein, the circuit court adopted the parties’ stipulation that the same facts and

circumstances still existed that were in existence at the February 6, 2013 probable-cause

hearing and that probable cause existed for the issuance of the ex-parte order for

emergency custody and that probable cause still existed.

Also on February 20, 2013, the children’s attorney ad litem filed a cross-petition for

dependency-neglect of both children due to neglect and both parents being unfit.

Following a March 6, 2013 hearing, the circuit court entered an adjudication and

disposition order accepting the parties’ stipulation that both children were dependent-

neglected, finding the same to be due to neglect from their mother’s inability to care for

and protect them due to her unstable housing. Among other things, appellant was ordered

to cooperate with DHS; notify DHS, within 48 hours, of any change in his residence and

contact information; attend individual counseling; refrain from illegal drugs and alcohol

and any prescription medications not prescribed specifically for him; submit to random

drug screenings; and obtain and maintain safe, stable housing and stable income.

In a review order entered July 29, 2013, the court found that appellant had partially

complied with the case plan and court orders, specifically noting that while he had

completed parenting classes, he had only attended seven out of thirty-three visits with the

children and had not made himself available for court-ordered random drug screens. The

court specifically found that appellant had “very little credibility with the Court.”

Appellant was ordered to complete a psychological evaluation. The case plan, as to

appellant, was dependent on the outcome of his psychological evaluation, which the

circuit court deemed was needed to determine if he was an appropriate caregiver.

4
Cite as 2014 Ark. App. 735

Following a hearing on November 6, 2013, the court entered a review order on

November 26, 2013, finding that appellant was not in a position to properly take care of

and provide for the children’s needs. The circuit court instituted a concurrent goal of

adoption. The court found that appellant had again only partially complied with the case

plan as he had completed his psychological evaluation, participated and made progress in

therapy, and submitted to random drug screens. However, he still did not have

appropriate housing, was unemployed, had tested positive on one alcohol screening, and

had only attended twelve of twenty-seven visits since the last hearing. Furthermore, the

circuit court found that appellant had not made much progress towards alleviating or

mitigating the causes of the children’s removal from the home. It noted that it was “still

concerned with [appellant’s] thought processes[.]”

Following a January 23, 2014 hearing, the circuit court entered a permanency

planning order on February 5, 2014, authorizing a plan for adoption and authorizing DHS

to file a petition for termination of appellant’s parental rights. Again, the court found that

appellant had only partially complied with the case plan as he still did not have stable

housing, income, or employment; had attended only five of seventeen scheduled visits

with the children since the last hearing; had not demonstrated an ability to appropriately

care for K.J.2’s medical condition with the feeding tube; and had tested positive for

benzodiazepines and methadone. 7 A termination hearing was set for April 16, 2014. 8 On

7
Appellant was appointed separate counsel in a January 24, 2014 order.
8
The scheduled termination hearing was continued to May 1, 2014, by order
entered on April 17, 2014, due to Bankston’s hospitalization. The hearing was continued
5
Cite as 2014 Ark. App. 735

March 6, 2014, DHS filed a petition for termination of appellant’s parental rights pursuant

to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (twelve months out of the

home without remediation of the conditions causing removal); Arkansas Code Annotated

section 9-27-341(b)(3)(B)(vii)(a) (other factors arose subsequent to removal); and Arkansas

Code Annotated section 9-27-341(b)(3)(B)(ii)(a) (willful failure to provide material

support or to maintain meaningful contact with the children). 9

Following a hearing on May 21, 2014, the circuit court entered an order on May

28, 2014, terminating appellant’s parental rights and granting DHS the power to consent

to the children’s adoption. The circuit court found clear and convincing evidence that it

was in the children’s best interest to grant DHS’s petition to terminate appellant’s parental

rights and that only the “other factors” ground supported termination of appellant’s

parental rights. It made all other necessary findings. This timely appeal followed.

In compliance with Linker-Flores and Rule 6-9(i), counsel ordered the entire record

and found that after a conscientious review of the record, there are no issues of arguable

merit for appeal. Counsel’s brief adequately covered each action that was adverse to

appellant below. After carefully examining the record and the brief presented to us, which

included all adverse rulings, we conclude that the appeal is wholly without merit.

Accordingly, we affirm the termination of appellant’s parental rights and grant counsel’s

motion to withdraw.

again by order entered on May 1, 2014, to May 21, 2014, due to appellant’s scheduled
surgery on May 1, 2014.
9
(2013).

6
Cite as 2014 Ark. App. 735

Affirmed; motion to withdraw granted.

HARRISON and VAUGHT, JJ., agree.

Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.

No response.

7