Cotton v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 479

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-92

Opinion Delivered: September 27, 2017
TAMMY COTTON
APPELLANT APPEAL FROM THE LOGAN
COUNTY CIRCUIT COURT,
V. NORTHERN DISTRICT
[NO. 42JV-15-17]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILD
APPELLEES HONORABLE TERRY SULLIVAN,
JUDGE

AFFIRMED; MOTION TO
WITHDRAW GRANTED

BART F. VIRDEN, Judge

In this no-merit appeal, the Logan County Circuit Court terminated appellant

Tammy Cotton’s parental rights to her daughter, B.C., on November 28, 2016. Appellant

filed a notice of appeal the same day. Counsel for appellant filed a motion to withdraw as

counsel on appeal and a no-merit brief 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(i) (2016), asserting that, other than the termination order itself, which is fully addressed

in the brief, there were no adverse rulings to appellant and explaining why there are no

nonfrivolous arguments to support an appeal. After being served by certified mail with the

motion to withdraw and a copy of the no-merit brief, appellant did not file pro se points
Cite as 2017 Ark. App. 479

for reversal. We affirm the order terminating appellant’s parental rights and grant counsel’s

motion to withdraw.

In Linker-Flores, the Arkansas Supreme Court described the procedure for

withdrawing as counsel from a termination-of-parental-rights appeal:

[A]ppointed counsel for an indigent parent on a first appeal from an order terminating
parental rights may petition this court to withdraw as counsel if, after a conscientious
review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s
petition must be accompanied by a brief discussing any arguably meritorious issue for
appeal. The indigent party must be provided with a copy of the brief and notified of
her right to file points for reversal within thirty days. If this court determines, after a
full examination of the record, that the appeal is frivolous, the court may grant
counsel’s motion and dismiss the appeal.

Linker-Flores, 359 Ark. at 141, 194 S.W.3d at 747–48.

Subsequently the supreme court elaborated on the appellate court’s role in reviewing

a petition to withdraw in a termination-of-parental-rights appeal, holding that when the

trial court has taken the prior record into consideration in its decision, a “conscientious

review of the record” requires the appellate court to review all pleadings and testimony in

the case on the question of the sufficiency of the evidence supporting the decision to

terminate and that only adverse rulings arising at the termination hearing need be addressed

in the no-merit appeal from the prior orders in the case. Lewis v. Ark. Dep’t of Human Servs.,

364 Ark. 243, 217 S.W.3d 788 (2005).

Termination-of-parental-rights cases are reviewed de novo. Hune v. Ark. Dep’t of

Human Servs., 2010 Ark. App. 543. Grounds for termination of parental rights must be

proved by clear and convincing evidence, which is that degree of proof that will produce

in the finder of fact a firm conviction of the allegation sought to be established. Id. The

appellate inquiry is whether the trial court’s finding that the disputed fact was proved by
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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).

B.C. (12/24/05) was taken into protective custody by the Arkansas Department of

Human Services (Department) on September 10, 2015, due to concerns about the health

and safety of her and her siblings. 1 The affidavit of family service worker Jennifer Jackson

sets forth that Tammy had overdosed on methamphetamine and benzodiazepine and had to

be airlifted to Mercy Hospital. After that Tammy was admitted to Valley Behavioral Hospital

due to her attempts to commit suicide, and the children were left without a legal caregiver.

A petition for emergency custody and dependency-neglect was filed and granted on

September 14, 2015. The trial court found that there was probable cause to believe that

B.C. and her siblings were dependent-neglected, and it would be contrary to their welfare

to return them to their parent. A probable-cause order was entered on September 16, 2015,

in which the court found that the family had a history with the Department. In the prior

cases, the children had been returned to Tammy following her completion of counseling

and parenting classes and after having received assistance with transportation and housing.

Tammy stipulated to probable cause.

An adjudication order finding B.C. dependent-neglected was filed on November 4,

2015, and the goal of the case was reunification with a concurrent goal of adoption. Tammy

1
Two siblings of B.C. were initially involved in this case; however, they were
dismissed from the case. The parental rights of B.C.’s legal father, Garland Cotton, were
also terminated in the order, but he is not the subject of this appeal.

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was ordered to submit to random drug screens, watch the video “The Clock is Ticking”,

complete parenting classes, submit to psychological and drug-and-alcohol evaluations and

follow any recommendations, obtain stable housing and employment, attend counseling,

submit to homemaker services, cooperate with the Department, and comply with the case

plan.

Following a hearing, the trial court changed the goal of the case to adoption in a

review order entered on February 22, 2016. The trial court found that the Department had

made reasonable efforts to provide services but that Tammy had failed to obtain housing,

failed to maintain transportation, failed to comply with drug-and-alcohol treatment, failed

to exercise visitation consistently, and she tested positive for drugs when she did submit to

drug screening.

Termination of parental rights is a two-step process requiring a determination that

the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark.

Dep’t of Human Servs., 2016 Ark. App. 227, 491 S.W.3d. 153. The first step requires proof

of one or more statutory grounds for termination; the second step, the best-interest analysis,

includes consideration of the likelihood that the juvenile will be adopted and of the potential

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

341(b)(3)(A)(b)(3)(B)(Repl. 2015); Houseman, supra. Proof of only one statutory ground is

sufficient to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App.

240, 374 S.W.3d 205. A trial court is required to consider only potential harm to a child’s

health and safety that might come from continued contact with the parents; there is no

requirement to find that actual harm would result or identify the potential harm. Hamman

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v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295, at 11, 435 S.W.3d 495, 502. The

potential-harm analysis is to be conducted in broad terms. Id.

The Department filed a petition for termination of parental rights on May 18, 2016,

and based the petition for termination on the grounds set forth in Arkansas Code Annotated

section 9-27-341(b)(3)(B)(i)(a)—the child had been adjudicated to be dependent-neglected

and had continued to be out of the parent’s custody for twelve months and, despite a

meaningful effort by the Department to rehabilitate the parent and correct the conditions

that caused the removal, those conditions had not been remedied by the parent; section 9-

27-341(b)(3)(B)(ii)(a)—the child had lived outside the home of the parent for twelve

months, and the parent had willfully failed to provide significant material support in

accordance with her means or to maintain meaningful contact with the child; section 9-

27-341(b)(3)(B)(vii)(a)—other factors or issues arose subsequent to the filing of the original

petition for dependency-neglect that demonstrate that placement of the child in the custody

of the parent was contrary to the child’s health, safety, or welfare and that, despite the offer

of appropriate family services, the parent had manifested the incapacity or indifference to

remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that

prevented the placement of the child in the custody of the parent; and section 9-27-

341(b)(3)(B)(ix)(a)(3)(A), the parent has subjected the child to aggravated circumstances.

Following a hearing on August 17, 2016, the trial court entered an order terminating

appellant’s parental rights on November 28, 2016. The trial court granted the petition to

terminate on the statutory ground set forth under section 9-27-341(b)(3)(B)(i)(a) based on

Tammy’s inability to control her drug abuse despite being offered extensive services by the

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Department for each of the three times her children had been removed. The trial court also

found that Tammy’s housing situation had been unstable, and that though she loved her

child, she was unable to provide for B.C.’s needs. The trial court also determined that

Tammy’s parental rights should be terminated under the statutory grounds set forth in

section 9-27-341(b)(3)(B)(ii)(a). Specifically, the trial court found that Tammy had failed to

provide material support to B.C. or maintain meaningful contact with the child. The trial

court also cited the “subsequent issues” grounds set forth in Ark. Code Ann. § 9-27-

341(b)(3)(B)(vii)(a), finding that Tammy had lived with a convicted felon after the filing of

the original petition and that she had not maintained stable housing. The trial court found

that this was the third time B.C. had been removed from her mother’s custody for parental

drug use, and it determined that Tammy had subjected B.C. to aggravated circumstances

and that there was little likelihood that further services would result in successful

reunification.

The trial court found by clear and convincing evidence that although fact that there

may be obstacles to B.C.’s adoption, the potential for harm if she was returned to her parents

was too great, and it was in the child’s best interest to terminate parental rights. Specifically,

the trial court found that Tammy was not able to take care of B.C.’s extensive needs, that

B.C. would be subjected to continued instability in the home if returned to Tammy, and

that Tammy continued to have the inability to provide and care for B.C.

Counsel contends that this appeal is without merit, concluding that clear and

convincing evidence supports the trial court’s decision to terminate. Proof of only one

statutory ground is sufficient to terminate parental rights, Gossett, supra, and the proof

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regarding Tammy’s inability to correct the conditions that caused removal was substantial.

The statutory requirements were met, and the evidence established that B.C. could not be

returned to her within a reasonable time period. See Ark. Code Ann. § 9-27-341(a)(3) (the

intent of the legislature is to provide permanency in a child’s life when a return to the family

home cannot be accomplished in a reasonable period of time as viewed from the child’s

perspective.). The same proof supports the circuit court’s finding that termination was in

B.C.’s best interest. Accordingly, we hold that the trial court’s decision to terminate

Tammy’s parental rights was not clearly erroneous.

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

appellant’s counsel determines that appellant has no meritorious basis for an appeal, then

counsel may file a no-merit petition and move to withdraw. The petition must include an

argument section listing all rulings adverse to the appellant made by the trial court on all

objections, motions, and requests made by the party at the hearing from which the appeal

arose and explaining why each adverse ruling is not a meritorious ground for reversal. The

petition must also include an abstract and addendum containing all rulings adverse to the

appellant made at the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-

9(i). After carefully examining the record and the brief presented to us, we conclude that

counsel has complied with the requirements established by the Arkansas Supreme Court for

no-merit appeals in termination cases and that the appeal is wholly without merit.

Accordingly, we affirm the order terminating appellant’s parental rights in B.C., and

counsel’s motion to withdraw is granted.

Affirmed; motion to withdraw granted.

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GLADWIN and BROWN, JJ., agree.

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

One brief only.

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