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

Cite as 2014 Ark. App. 565

ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-14-469

Opinion Delivered October 22, 2014

TINA NGUYEN and JOHNNY HOANG APPEAL FROM THE SEBASTIAN
APPELLANTS COUNTY CIRCUIT COURT, FORT
SMITH DIVISION
V. [No. JV-2012-750]

ARKANSAS DEPARTMENT OF HONORABLE JIM D. SPEARS, JUDGE
HUMAN SERVICES and MINOR
CHILDREN AFFIRMED; MOTIONS TO BE
APPELLEES RELIEVED GRANTED

LARRY D. VAUGHT, Judge

Attorneys for Johnny Hoang and Tina Nguyen bring two no-merit appeals, with

accompanying motions to be relieved as counsel, from an order entered by the Sebastian County

Circuit Court on February 28, 2014, terminating the parental rights to Nguyen’s biological

children EO (4-8-11), XM (12-10-05), and CN (2-20-08). Hoang is one (of two) putative fathers

to CN and all three children’s stepfather. In their briefs, filed in accordance with Ark. Sup. Ct.

R. 6-9(i)(1) (2013) and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194

S.W.3d 739 (2004), counsel states that there is no issue of arguable merit for reversal. We agree

and affirm.

In December 2012, the Department of Human Services (DHS) placed a seventy-two-

hour hold on the children due to physical abuse by Hoang and failure to protect the children by

Nguyen. The supporting affidavit states that there were belt marks on XM’s left, upper thigh,

and a golf-ball-sized knot on the back of his head. At the time of the abuse, Hoang and Nguyen
Cite as 2014 Ark. App. 565

were not married but were living together. Hoang was ultimately convicted of second-degree

battery for the injuries to XM and sentenced to two years’ imprisonment. In February 2013, the

children were adjudicated dependent-neglected due to Hoang’s physically abuse and Nguyen’s

failure to protect her children from him. Hoang was also named as a possible biological father

of CN.

Hoang appeared at the November permanency-planning hearing, having been released

from jail, and as the new husband of Nguyen. The trial court found little chance that services

to the family would result in successful reunification because Nguyen maintained that Hoang’s

abuse was for the children’s own good (ignoring that he was criminally culpable for the abuse).

The trial court reasoned that because of Nguyen’s total denial about her husband’s abuse of the

children, the children would not be safe if returned to the home.

After hearing the evidence, the trial court found by clear and convincing evidence that

(1) the children were dependent-neglected and had been out of the home for twelve months; (2)

the conditions that caused removal had not been remedied despite a meaningful effort by DHS

to rehabilitate the parents and correct the conditions that caused removal; (3) the putative fathers

had abandoned the children; (4) other factors had arisen since the filing of the initial petition that

demonstrated the children’s safety, health, and welfare were in jeopardy; and (5) it was in the

children’s best interest to terminate the parental rights of Nguyen and Hoang considering the

likelihood of the children’s adoption and the potential harm they could suffer if returned home.

Based on these findings, the trial court entered an order terminating the parental rights of Hoang

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Cite as 2014 Ark. App. 565

and Nguyen. The parents’ counsel have filed separate no-merit briefs and accompanying

motions to be relieved as counsel.

A trial court’s order terminating parental rights must be based on findings proven by clear

and convincing evidence. Ullom v. Ark. Dep’t of Human Servs., 67 Ark. App. 77, 992 S.W.2d 813

(1999). Clear and convincing evidence is defined as the degree of proof that will produce in the

fact-finder a firm conviction as to the allegation sought to be established. Id. at 80, 992 S.W.2d

at 815. On appeal, we will not reverse the trial court’s ruling unless its findings are clearly

erroneous. Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). A

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.”

Hopkins v. Ark. Dep’t of Human Servs., 79 Ark. App. 1, 4, 83 S.W.3d 418, 421 (2002).

The purpose in terminating a parent’s rights to his or her child is to provide permanency

in a child’s life when return to the family home “cannot be accomplished in a reasonable period

of time as viewed from the juvenile’s perspective.” Ark. Code Ann. § 9-27-341(a)(3) (Repl.

2011). A trial court may order termination of parental rights if it finds that there is an

“appropriate permanency plan” for the child, Ark. Code Ann. § 9-27-341 (b)(1)(A), and further

finds by clear and convincing evidence that termination is in the best interest of the child, taking

into consideration the likelihood of adoption and the potential harm to the health and safety of

the child that would be caused by returning him or her to the custody of the parent. Ark. Code

Ann. § 9-27-341(b)(3)(A). Lastly, there must be clear and convincing evidence supporting one

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

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Cite as 2014 Ark. App. 565

Counsel for Hoang argues that there is no basis for Hoang’s appeal because the trial

court’s termination findings are supported by the evidence. We agree. The children were

removed based on his physical abuse of the children; he was criminally charged for the conduct;

he was required to be supervised when around the children; he did not benefit from a therapy

program he attended; he showed little empathy for the children; he was married to Nguyen, who

would not protect the children; he exhibited extremely poor parenting skills; the children

required high levels of therapy for the trauma XM suffered at his hands; and the psychological

evaluations indicated he was still a potential abuser. These factors also support the best-interest

finding, specifically, Hoang’s failure to acknowledge that the abuse is wrong.

There were three additional rulings adverse to Hoang that counsel claims would not

support a meritorious appeal on his behalf. First, Hoang objected to Nguyen’s being asked a

second time if Hoang had hit her as “asked and answered.” However, with her “no” response,

there was no harm. Second, the court overruled a relevancy objection by Nguyen’s counsel

relating to the ad litem’s question to Nguyen why Hoang pled guilty to battery, if he was not an

abuser. Nguyen responded that he did it “because he loves me” and “he’d do anything for me.”

This testimony was permissible under Arkansas Rules of Evidence 701 because it is non-expert

testimony that provides a clearer understanding of a witness’s testimony or a fact at issue.

Finally, the court sustained the ad litem’s objection when Hoang’s counsel asked a DHS

caseworker if a glitch in the system had prevented Hoang from getting the recommended

counseling. She responded that she had not heard of the problem until it was brought up in trial.

In light of the other strong evidence, any error related to this testimony was harmless.

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The termination of Nguyen’s parental rights to her children also presents no meritorious

ground for appeal. Although she did not directly harm the children, she consistently failed to

protect them and denied the abuse even in the face of Hoang’s criminal prosecution. All other

evidence supporting termination was the same, including her inability to sympathize with the

children’s suffering. The trial court also found under the best-interest finding that the children

needed a “clean break” from Nguyen to help them recover emotionally. Therefore, we hold that

the termination of Nguyen’s parental rights presents no meritorious ground for appeal as it was

fully supported by the evidence.

As to other rulings adverse to Nguyen, the first involved an objection to the appointment

of a special advocate for the children. However, the basis for the objection is not clear because

Nguyen did not object to the special advocate’s accompanying report; therefore, this adverse

ruling could not support an appeal. Second, there was an “asked and answered” objection during

the testimony, but no ruling was received on the objection; therefore, it is not appealable. Third,

as previously discussed, the “speculation” objection as to the ad litem’s questioning of Nguyen

about why Hoang would plead guilty if he was in fact not an abuser fits within the parameters

of Rule 701 and is therefore not a meritorious ground for appeal.

After a review of the record and briefs submitted in this case and all applicable case and

statutory law as required by Linker-Flores, we agree with counsel’s assertion that this appeal

presents no potentially meritorious issues that could arguably support the parties’ appeals.

Therefore, the two orders terminating parental rights are affirmed, and the motions to be

relieved filed by counsel for Hoang and Nguyen are granted.

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Affirmed; motions to be relieved granted.

GRUBER and WHITEAKER, JJ., agree.

Leah Lanford, for appellant Tina Nguyen.

Dusti Standridge, for appellant Johnny Hoang.

No response.

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