Moore v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 346

ARKANSAS COURT OF APPEALS

DIVISION IV
No.CV-15-979

Opinion Delivered: JUNE 22, 2016

EVETTE MOORE APPEAL FROM THE ST. FRANCIS
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-14-181]
V.
HONORABLE ANN B. HUDSON,
JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND AFFIRMED; MOTION TO
MINOR CHILD WITHDRAW GRANTED
APPELLEES

KENNETH S. HIXSON, Judge

Appellant Evette Moore appeals from the July 7, 2015 order of the St. Francis County

Circuit Court that awarded permanent custody of her son A.M. to his paternal uncle, Eddie

Aldridge. 1 Moore’s attorney has filed a no-merit brief and a motion to withdraw as counsel

pursuant to Rule 6-9(i) of the Rules of the Arkansas Supreme Court and Court of Appeals

and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739

(2004). 2 The clerk of this court mailed a certified copy of counsel’s motion and brief to

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A.M.’s biological father is deceased.
2
Although Linker-Flores specifically addressed the no-merit appeal of an order
terminating parental rights, this case is a no-merit appeal from a permanent-custody order,
which is also authorized under the Linker-Flores rationale. See Beeson v. Ark. Dep’t of Human
Servs., 2011 Ark. App. 317, 378 S.W.3d 911; Collier v. Ark. Dep’t of Human Servs., 2009
Ark. App. 565 (affirming no-merit appeals from award of permanent custody). In addition,
although Rule 6-9 does not specifically mention this type of appeal, Arkansas Rule of
Appellate Procedure−Civil 2(d) (2015) provides that “[a]ll final orders awarding custody are
final appealable orders.”
Cite as 2016 Ark. App. 346

Moore at her last known address informing her of her right to file pro se points for reversal,

and Moore filed pro se points for our consideration. The Department of Human Services

(“DHS”) and the child’s attorney ad litem filed a joint response, agreeing with appellate

counsel that there is no issue of arguable merit to raise on appeal. We grant counsel’s motion

to withdraw and affirm the order awarding permanent custody to A.M.’s paternal uncle.

I. Factual and Procedural History

A.M. came into DHS’s emergency custody as the result of a child-abuse hotline call.

On July 10, 2014, Moore had summoned the St. Francis County Sheriff’s Department to

her home insisting that they take A.M. out of her house or she would kill him; Moore was

intoxicated. She had reported that she was mad because a relative had bought A.M. an

expensive pair of shoes. The affidavit in support of emergency custody recited that Moore

had a history with DHS: A.M. had come into foster care in May 2012, which lasted until

August 2012, and there was a true finding of inadequate supervision in May 2014. A

protective-services case was opened on July 10, 2014 at 2:30 a.m. DHS recommended that

A.M. be placed in foster care and that the names of family and friends “be gathered and

researched for possible home studies.” An ex parte order for emergency custody was

entered.

On July 15, 2014, a probable-cause hearing was conducted. The trial court found

that “the mother was intoxicated and threatening the child.” At the adjudication hearing

on August 26, 2014, Moore “stipulated to inadequate supervision based on [being] under

the influence of intoxicating substances.” DHS was ordered to conduct home studies on

relatives interested in having custody of A.M. The minor was placed in a residential

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Cite as 2016 Ark. App. 346

treatment facility called WoodRidge in August or September 2014 to treat behavioral

issues. 3

A review hearing was conducted on October 28, 2014. At that point, Moore had

“somewhat complied” by attending substance-abuse classes and AA meetings, but she

continued to “struggle with alcohol abuse.” Moore admitted that she had battled alcoholism

since childhood but that she had been sober for over a month. She also admitted that she

had tried to commit suicide because she was unable to cope with the stressors in her life.

A.M. remained in the residential treatment facility; he had not yet completed the treatment

program. At the conclusion of the review hearing, the trial court kept reunification with

Moore as the goal with a concurrent goal of relative placement. The trial court ordered

that when A.M. was released from treatment, he was not to return home to his mother.

The matter was reviewed again on January 13, 2015. The concurrent goals remained

reunification and relative placement. A.M.’s paternal uncle, Eddie Aldridge, testified that

A.M. stayed with him over the holiday break and that A.M. was well behaved. A.M. was

still residing at the treatment facility. Aldridge stated that his (Aldridge’s) mother and sister

lived across the street, enabling them to spend time together. He stated that he could be a

calming influence and a good role model in A.M.’s life. Again, Moore was found to have

“somewhat complied.” The trial court again ordered that when A.M. was released, he was

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A.M. admitted that before DHS intervention this time, he had been smoking
marijuana while in his mother’s custody. A.M. admitted that he would sneak out of his
mother’s house, which he said was not difficult to do because his mother was blind and
because she drank to excess. Furthermore, A.M. and his mother did not get along.
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not to be returned to his mother’s home. The trial court entered an order giving temporary

custody to Aldridge. Moore’s visitation was ordered to be supervised.

Court reports indicated that A.M. was released from residential treatment on January

26, 2015, and he was happy to be living with his uncle. A.M. was attending school. Moore

was permitted telephone contact with A.M., and DHS provided her transportation for

supervised visitation.

On March 3, 2015, another review hearing was conducted. The trial court reiterated

that Moore was somewhat in compliance with her outpatient counseling and AA meetings.

The trial court ordered Moore to continue to attend to counseling, meetings, and also attend

a day treatment for her mental-health issues.

A court report dated June 16, 2015, noted that A.M. was having problems adjusting

to his new school but that he remained happy to be with his uncle. Moore was noted to

have completed parenting classes, and she was continuing with counseling. Also on that

date, a review hearing was conducted.

Aldridge testified that “eighty percent of the time [A.M.] is good but then there is

the twenty percent.” He wanted A.M. to remain in his custody. He was willing to abide

by the court’s orders and understood that there was to be no unsupervised visitation with

Moore absent court approval. Moore testified that she would like for her son to return

home. She stated that she had done everything that the court had asked of her. DHS

recommended that permanent custody be given to A.M.’s uncle.

The trial court found that Aldridge having permanent custody of A.M. was in the

minor’s best interest; that A.M. wanted to remain with his uncle; and that Moore’s

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Cite as 2016 Ark. App. 346

supervised visitation was to be at the uncle’s discretion. From the bench, the trial judge

remarked that this case had been heard “over and over” allowing Moore to rectify the

situation but that “it has always gone back to the same thing.” The trial court found that

the uncle had complied with the court’s orders and provided a stable home environment

for A.M. but that Moore was not compliant in remaining alcohol free. An order

memorializing these findings was entered on July 7, 2015, and this is the order from which

this appeal was lodged.

II. Analysis

In a no-merit appeal, the attorney must present a brief that complies with our court

rules that mandate counsel to explain why all adverse rulings made by the trial court would

not support a meritorious appeal. Ark. Sup. Ct. R. 6-9(i) (2015). In this case, counsel

correctly states that the only adverse ruling in the hearing from which the appeal arose was

the decision to grant permanent custody of the minor to his uncle. At a permanency-

planning hearing, Arkansas Code Annotated section 9-27-338 (Repl. 2015) requires the

trial court to enter a permanency goal in accordance with the best interest of the child, and

one permissible goal under the statute is to authorize a plan to obtain a permanent custodian,

including permanent custody with a fit and willing relative. Section 9-27-338(c)(6). The

burden of proof in dependency-neglect proceedings is by a preponderance of the evidence.

Ark. Code Ann. § 9-27-325(h)(2)(B). We do not reverse the trial court’s findings on appeal

unless they are clearly erroneous. Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492

(2007). A finding is clearly erroneous when, although there is evidence to support it, the

reviewing court is left with a definite and firm conviction that a mistake has been

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committed. Id. We also give due deference to the superior position of the trial court to

view and judge the credibility of the witnesses, and this deference is even greater in cases

involving child custody, where a heavier burden is placed upon the trial judge to utilize his

or her powers of perception in evaluating the witnesses, their testimony, and the best

interests of the children. Id.

The trial court in this case found that an award of permanent custody to Eddie

Aldridge was in A.M.’s best interest, as it was contrary to his health and safety to be returned

to his mother’s custody. This decision was not clearly erroneous, and no issue of arguable

merit could be raised on appeal.

The evidence showed that Moore had a significant history with DHS intervention

and a long-term alcohol problem. To her credit, Moore attended some parenting classes,

counseling, and Alcoholics Anonymous meetings. Nonetheless, after another significant

period of time out of his mother’s custody, A.M. had completed his own residential

treatment and was well adjusted to being in his uncle’s custody. Aldridge had provided the

stability and parental control that Moore could not achieve; Aldridge became the role model

for A.M. that Moore could not be. Completion of the case plan itself is not determinative;

the primary issue is whether completion of the plan achieved the desired result of making

Moore capable of providing consistently proper parental care for A.M. See Wright v. Ark.

Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). The trial court did not

clearly err in deciding that, ultimately, Moore could not parent her teenage son in the

manner that was necessary for his safety and best interest and that A.M.’s best interest was

served by being in his relative’s permanent custody.

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Even in Moore’s pro se points for reversal, she states that she wants A.M. (now almost

sixteen years old) to remain in his uncle’s custody until completion of high school; the

change she seeks is to have her visitation unsupervised. Moore states that she has not seen

her son in nine months, although she talks to him on a weekly basis. Her pro se points for

reversal do not substantively impact the decision to award permanent custody of A.M. to

his uncle. In summation, we agree with appellate counsel that there would be no merit to

an appeal of the trial court’s decision on permanent custody of A.M. Compare Sisemore v.

Ark. Dep’t of Human Servs., 2016 Ark. App. 187 (affirmed order granting permanent custody

of minor to a relative despite Sisemore’s compliance with case plan and recommendations

from DHS, CASA, and attorney ad litem that Sisemore be permitted three more months

to attempt to achieve reunification); Beeson v. Ark. Dep’t of Human Servs., 2011 Ark. App.

317, 378 S.W.3d 911 (no-merit appeal; affirmed order granting permanent custody of a

minor to a relative despite Beeson’s attempt to fully comply with case plan).

Based on our review of the record and brief submitted, we conclude that counsel has

complied with Rule 6-9(i) and agree that the appeal is without merit. Therefore, we affirm

the permanent-custody order and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

KINARD and WHITEAKER, JJ., agree.

Kimberly Eden, for appellant.

Jerald A. Sharum, County Legal Operations, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

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