Kimberly Pace v. Arkansas Department of Human Services and Minor Child

Cite as 2019 Ark. App. 533
Digitally signed by Elizabeth
Perry ARKANSAS COURT OF APPEALS
Date: 2022.08.08 10:35:02 DIVISION II
-05'00'
No. CV-19-520
Adobe Acrobat version:
2022.001.20169
Opinion Delivered: November 13, 2019
KIMBERLY PACE
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
EIGHTH DIVISION
ARKANSAS DEPARTMENT OF [NO. 60JV-17-1434]
HUMAN SERVICES AND MINOR
CHILD
APPELLEES HONORABLE WILEY A. BRANTON,
JR., JUDGE

AFFIRMED; MOTION TO
WITHDRAW GRANTED

BART F. VIRDEN, Judge

Appellant, Kimberly Pace, appeals a Pulaski County Circuit Court order terminating

her parental rights to K.W. (born 11/28/17). Pace’s counsel has filed a motion to withdraw

and a no-merit brief pursuant to our rules and caselaw, stating that there are no meritorious

grounds to support an appeal. Ark. Sup. Ct. R. 6-9 (2019); Linker-Flores v. Ark. Dep’t of

Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004).

The clerk of our court mailed a certified copy of counsel’s motion and brief to Pace’s

last-known address at the Arkansas Department of Correction informing her of her right to

file pro se points for reversal, and Pace untimely filed pro se points. We affirm the court’s

decision to terminate Pace’s parental rights to K.W. and grant counsel’s motion to withdraw.
We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep’t of

Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272. An order terminating parental rights

must be based on a finding by clear and convincing evidence that the termination is in the

children’s best interest. Id. The circuit court must consider the likelihood that the children

will be adopted if the parent’s rights are terminated and the potential harm that could be

caused if the children are returned to a parent. Harper v. Ark. Dep’t of Human Servs., 2011

Ark. App. 280, 378 S.W.3d 884. The circuit court must also find that one of the grounds

stated in the termination statute is satisfied. Id. Clear and convincing evidence is that degree

of proof that will produce in the fact-finder a firm conviction that the allegation has been

established. Pratt v. Ark. Dep’t of Human Servs., 2012 Ark. App. 399, 413 S.W.3d 261. When

the burden of proving a disputed fact is by clear and convincing evidence, we ask whether

the circuit court’s finding on the disputed fact is clearly erroneous. Id. A finding is clearly

erroneous when, although there is evidence to support it, we are left with a definite and

firm conviction that a mistake has been made. Id.

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

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

counsel may file a no-merit petition and move to withdraw. Ark. Sup. Ct. R. 6-9(i)(1). The

petition must include an argument section that lists all adverse rulings that the parent

received at the circuit court level and explain why each adverse ruling is not a meritorious

ground for reversal. Ark. Sup. Ct. R. 6-9(i)(1)(A). The petition must also include an abstract

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and addendum containing all rulings adverse to the appealing parent that were made during

the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-9(i)(1)(B).

The circuit court considered testimony, exhibits, and statements of the parties in

deciding to terminate Pace’s parental rights. The Arkansas Department of Human Services

(Department) filed a petition for emergency custody and dependency-neglect on December

4, 2017, and attached an affidavit setting forth the following relevant facts: following K.W.’s

birth, Pace tested positive for PCP, and K.W. tested positive for PCP and

methamphetamine. Pace denied using methamphetamine and PCP but she admitted that

she drank alcohol and used marijuana, and she explained that she had been around people

using PCP. K.W. was admitted to the NICU and was treated for withdrawal. Pace told the

caseworker that she has two other children living in California and that she did not have

current addresses for those children. Pace acknowledged that she had been diagnosed with

bipolar disorder and that she refused to take her medication. K.W. was removed from Pace’s

care and placed under a seventy-two-hour emergency hold.

The court entered the order for emergency custody and found that K.W. was

dependent-neglected, and immediate removal from Pace’s custody was necessary to protect

the K.W. The court directed in the probable cause order that any relative interested in

placement should submit to hair-and-urine-based drug screening and that a home study

would be conducted.

Following K.W.’s removal, the circuit court ordered that Pace submit to random

drug testing and that she be offered preadjudication reunification services. In an adjudication

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order entered on February 13, 2018, the circuit court found that the ability to offer services

to Pace, who was incarcerated, was limited. The court found that Pace had subjected K.W.

to aggravated circumstances by exposing him to drugs while she was pregnant, and it was

highly unlikely that services would result in reunification. Pace did not appeal the

adjudication order.

In the permanency-planning order entered April 23, 2018, the circuit court found

that Pace was still incarcerated, and it reiterated its finding that it was unlikely that services

would result in reunification. The court found that Pace’s testimony raised concern as to

her trustworthiness and credibility and that she expressed no understanding of her mental-

health issues and criminal history. In a second permanency-planning order entered October

5, 2018, the court stated that Pace had made some effort to comply with the case plan but

that she had made no material progress toward reunification. She had submitted to a

psychological evaluation, but the report was “not very encouraging.” The court found that

Pace had given up a child for adoption when she was fifteen years old, and drugs had been

a factor in that situation as well. Pace admitted that she self-medicated with marijuana. The

mental-health evaluation report set forth that “based on her scores in the evaluation, the

possibility of an inability to maintain custody may be indicated[.]” Pace continued to test

positive for PCP, and in September 2018, she refused to submit to a drug test. Though Pace

had completed thirty-day in-treatment drug rehabilitation, she had not done the

recommended follow-up care. Pace had been arrested again on drug-related charges, and

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she could not provide a release date. The court found that the Department had made

reasonable efforts.

The Department filed a petition to terminate Pace’s parental rights and alleged the

following three statutory grounds in support of the petition: (1) that the juvenile had been

adjudicated dependent-neglected and continued out of the custody of the parent for twelve

months, and despite meaningful effort by the Department, the parent failed to correct the

conditions that caused removal; 1 (2) the “other factors” ground—that other factors or issues

arose subsequent to the filing of the original petition for dependency-neglect that

demonstrate that placement of the juvenile in the custody of the parent is contrary to the

juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services,

the parent has manifested the incapacity or indifference to remedy the subsequent issues or

factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile

in the custody of the parent; 2 and (3) the “aggravated circumstances” ground—that the

parent is found by a court of competent jurisdiction to have subjected any juvenile to

aggravated circumstances, which means, among other things, that a determination has been

or is made by a judge that there is little likelihood that services to the family will result in

1
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017).
2
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).

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successful reunification. 3 The Department asserted that K.W. is adoptable, and he is a happy,

healthy child.

The circuit court held a termination hearing, and caseworker Tameka Jones testified

that Pace had refused a drug test in September and tested positive for drugs during treatment.

Jones recounted that Pace had been arrested in August and again in December and that Pace

had been sentenced on January 24, 2019, to twenty-four months’ incarceration. Counsel

for Pace stated that though home studies had been done in California, the results were not

back, and “it takes a while for California.” The adoption specialist testified that K.W. is

adoptable with no major health or developmental issues and that data matching had resulted

in 451 adoptive-family matches.

The court entered the order terminating Pace’s parental rights on March 28, 2019,

based on the three grounds alleged by the Department. The court relied on the adoption

specialist’s testimony that K.W. is adoptable and that he matched with 451 potential

adoptive families. The court found there is potential for harm if K.W. is returned to Pace’s

custody considering her drug issues and instability.

We hold that there is sufficient evidence to support termination on the aggravated

circumstances ground. Pace’s drug issues and mental health issues continued throughout the

case. The circuit court’s finding that there is little likelihood that services would result in

reunification is based on clear and convincing evidence.

3
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3).

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The court’s finding that it was in the K.W.’s best interest for Pace’s rights to be

terminated is also sufficiently supported by the record. The circuit court found that K.W. is

adoptable and that the adoption specialist testified that there were 451 potential matches in

the system and no barriers to adoption. The circuit court’s decision to terminate Pace’s

parental rights is not clearly erroneous given the evidence that was before the court.

Other than the decision to terminate Pace’s parental rights, there were no other

adverse rulings.

Having reviewed the record and counsel’s brief, we agree with counsel that an appeal

from the circuit court’s decision to terminate Pace’s parental rights would be wholly without

merit.

Because Pace’s counsel has adequately addressed the sufficiency of the evidence in

the no-merit brief and has complied with the requirements of Linker-Flores and this court’s

rules, we affirm the circuit court’s termination order and grant the motion to withdraw.

Affirmed; motion to withdraw granted.

ABRAMSON and HIXSON, JJ., agree.

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

One brief only.

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