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

Cite as 2017 Ark. App. 517

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-444

Opinion Delivered: October 4, 2017
CRYSTAL BUTLER
APPELLANT APPEAL FROM THE UNION
COUNTY CIRCUIT COURT
V. [NO. 70JV-16-192]

ARKANSAS DEPARTMENT OF HUMAN HONORABLE EDWIN KEATON,
SERVICES AND MINOR CHILDREN JUDGE
APPELLEES
AFFIRMED; MOTION TO
WITHDRAW GRANTED

MIKE MURPHY, Judge

Appellant Crystal Butler appeals the March 13, 2017 order of the Union County

Circuit Court terminating her parental rights to her nine-month-old twin girls, N.W.1 and

N.W.2. 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), Butler’s counsel

has filed a no-merit brief and a motion to withdraw alleging that there are no meritorious

grounds for appeal. The clerk of this court sent a certified packet to Butler notifying her of

her right to file pro se points; Butler has filed no points. After a full examination under the

proper standards, we hold that counsel provided a compliant no-merit brief demonstrating

that an appeal would be wholly without merit and that counsel’s motion to be relieved

should be granted.

Crystal Butler was incarcerated in the Arkansas Department of Correction serving a

five-year sentence for domestic battery when she gave birth to twin girls on July 26, 2016.
Cite as 2017 Ark. App. 517

The Arkansas Department of Human Services (DHS) took emergency custody of the

children. At the time of removal, five of Butler’s other children were already in foster care.

An ex parte emergency-custody order was entered on August 8, 2016, and an agreed

probable cause order was entered on August 15, 2016. Butler’s parental rights to the five

children in foster care were also terminated on August 15, 2016. An adjudication hearing

regarding the twins was held on October 3, 2016, and an order followed. In the adjudication

order, the court found the children to be dependent-neglected and at a substantial risk of

harm due to their mother’s incarceration and the fact that she had lost custody to her other

children. The concurrent goals of adoption, relative placement, and reunification were set.

DHS filed a petition to terminate Butler’s parental rights on December 5, 2016, and

a hearing was held on February 6, 2017. At the hearing, the court heard testimony first from

Carolyn Samuel, the DHS caseworker assigned to the case. She testified about the

circumstances surrounding the involuntary termination of Butler’s rights to her other

children. She explained that, in the prior case, Butler had repeatedly reported that she would

be released from prison soon, but that was never the case. She further testified that, even if

Butler were released soon, the children would still be at risk for potential harm because

Butler has no home or income. She stated that the children were adoptable, and a family

had been identified for the children.

Crystal next testified that she was serving a five-year sentence in the Arkansas

Department of Correction, and she did not know when she would be released. She admitted

that the sentence she was serving was from her guilty plea to a charge of second-degree

domestic battery of one of her other children. She said that whenever she is released, she

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has a place at Hope House, a transitional-living home, and that she did not believe it was in

her twins’ best interest for her parental rights to be terminated.

Following closing arguments, the court announced from the bench that it was

granting DHS’s petition to terminate Butler’s parental rights. The corresponding order

provided that DHS had proved by clear and convincing evidence that Butler had subjected

the children to aggravated circumstances in that there was little likelihood that the services

to the family would result in successful reunification given Butler’s lengthy history with

DHS and the services previously provided and that her parental rights had been terminated

to siblings of these children. The trial court found that termination was in the best interest

of the twins, considering the likelihood of adoptability and potential harm of returning them

to their mother. Butler now appeals.

Termination-of-parental-rights cases are reviewed de novo on appeal. Woodward v.

Ark. Dep’t of Human Servs., 2017 Ark. App. 91, 513 S.W.3d 284. Termination of parental

rights is an extreme remedy and in derogation of the natural rights of parents. Id. DHS must

prove by clear and convincing evidence that it is in the juvenile’s best interest to terminate

parental rights, as well as the existence of at least one statutory ground for termination.

Everett v. Ark. Dep’t of Human Servs., 2016 Ark. App. 541, 506 S.W.3d 287. Clear and

convincing evidence is that degree of proof that will produce a firm conviction in the finder

of fact regarding the allegation sought to be established; the question that must be answered

on appeal, when the burden of proving a disputed fact in equity is by clear and convincing

evidence, is whether the trial court’s finding that the disputed fact was proved by clear and

convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although

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there is evidence to support it, the appellate court, on the entire evidence, is left with a

definite and firm conviction that a mistake has been made. Woodward, supra. However, a

high degree of deference is given to the trial court, as it is in a far superior position to observe

the parties before it and judge the credibility of the witnesses. Dinkins v. Ark. Dep’t of Human

Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).

In determining the best interest of the juvenile, a trial court must take into

consideration (1) the likelihood that the juvenile will be adopted if the termination petition

is granted; and (2) the potential harm, specifically addressing the effect on the health and

safety of the child, caused by returning the child to the custody of the parent. Myers v. Ark.

Dep’t of Human Servs., 2011 Ark. 182, 380 S.W.3d 906. Potential harm must be viewed in

a forward-looking manner and in broad terms. Dowdy v. Ark. Dep’t of Human Servs., 2009

Ark. App. 180, 314 S.W.3d 722. The trial court is not required to find that actual harm

would result or to identify a potential harm. Lee v. Ark. Dep’t of Human Servs., 102 Ark.

App. 337, 285 S.W.3d 277 (2008).

As for grounds to terminate parental rights, the strongest ground relied on by the

trial court was the ground that Butler had had her rights involuntarily terminated to the

twins’ siblings pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(4)

(Repl. 2015). Only one ground is necessary for termination to occur. Draper v. Ark. Dep’t

of Human Servs., 2012 Ark. App. 112, at 15, 389 S.W.3d 58, 66. DHS introduced into

evidence, without objection, the order terminating Butler’s rights to the twins’ five siblings.

We affirmed that order in Butler v. Arkansas Department of Human Services, 2017 Ark. App.

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202. Accordingly, termination was warranted under this ground, and any challenge to this

finding would be without merit.

Regarding best interest, there was uncontroverted evidence from the caseworker that

the twins were adoptable, and there was already a placement meeting with an adoptive

family scheduled to take place pending the outcome of the termination hearing. The court

also considered the potential harm of returning the children to Butler’s custody. In its order,

the court discussed Butler’s history of abuse and her current incarceration. It found that

there would be a risk of abuse to the twins if returned to Butler. Furthermore, the fact that

Butler is currently incarcerated with no concrete idea on when she might get out makes it

impossible for the children to be safely returned to her custody and constitutes potential

harm, as Butler is unable to provide housing or any stability whatsoever.

Beyond sufficiency of the evidence, there were two arguments made by trial counsel

that Butler’s appellate counsel addresses in her no-merit brief. The first is that it would be

error to rely on the prior-involuntary-termination ground when that termination was still

pending on appeal. However, as we previously noted, the order terminating Butler’s rights

to her other children was a valid order that we affirmed on appeal. See Butler¸ supra.

The second argument made by trial counsel was that the court should “just give

[Butler] a few months to see if . . . she can get back on her feet,” as the children had not

even been out of her custody twelve months. However, this court, time and again, has held

that a child’s need for permanency and stability may override a parent’s request for additional

time to improve her circumstances. See, e.g., Fredrick v. Ark. Dep’t of Human Servs., 2010

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Ark. App. 104, 377 S.W.3d 306; Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17,

372 S.W.3d 849.

When the trial court made its termination decision, these very young children had

been out of their mother’s care their entire lives. And while Butler testified that she might

be eligible for parole within a few weeks of the hearing, eligibility does not guarantee that

she would actually be paroled. She was serving a five-year sentence, and Samuel testified

that, in the previous case, Butler had made repeated claims of soon-to-be release dates that

would never arrive. At the time of termination, Butler was incapable of caring for her

children and had no concrete timetable for rehabilitation. An argument under this point

would be without merit.

After reviewing the record and counsel’s brief, we agree with counsel that an appeal

from the trial court’s decision to terminate Butler’s rights would be wholly without merit.

We are satisfied counsel has complied with the requirements of Linker-Flores, supra, and this

court’s rules, and none of the adverse rulings provide a meritorious basis for reversal.

Affirmed; motion to withdraw granted.

VIRDEN and GLOVER, JJ., agree.

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

One brief only.

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