Robinson v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 262

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-1104

Opinion Delivered April 26, 2017

EUGENIA ANN MARIE ROBINSON APPEAL FROM THE UNION
APPELLANT COUNTY CIRCUIT COURT
[NO. 70JV-16-2]
V.
HONORABLE EDWIN KEATON,
JUDGE
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILDREN AFFIRMED; MOTION TO
APPELLEES WITHDRAW GRANTED

LARRY D. VAUGHT, Judge

Appellant Eugenia Robinson appeals the September 20, 2016 order of the Union

County Circuit Court terminating her parental rights to her two children, D.R. and J.R., ages

two and a half and ten months, respectively. 1 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), Eugenia’s counsel has filed a no-merit brief and a motion to withdraw, alleging

that there are no meritorious grounds for appeal. 2 After a full examination under the proper

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

1The order also terminated the parental rights of Cantobie Robinson, the father of D.R.
and J.R. Cantobie is not a party to this appeal.

2As provided in Arkansas Supreme Court Rule 6-9(i)(3), the clerk of our court
attempted twice to mail Eugenia at her last known address a copy of her attorney’s brief and
motion and a letter advising her of her right to file pro se points. The first mailing was returned
by the postal service marked “Unclaimed/Max Hold Time Expired,” and the second mailing
was returned marked “Return to Sender-Unable to Forward.” Thus, Eugenia did not file pro
se points for reversal. The State elected not to file a brief with our court.
Cite as 2017 Ark. App. 262

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

granted.

The Department of Human Services (“DHS”) removed D.R. from the custody of her

father, Cantobie Robinson, on December 29, 2015, after learning that Cantobie went to the

local DHS office with D.R. and advised that he did not have housing or food for her. He

advised that they had been spending the night at the Salvation Army for the past ten days;

however, they were not permitted to stay there during the day. He reported that he had

nowhere to keep D.R. during the day. Cantobie tested positive for marijuana. He also reported

that Eugenia, who was three months pregnant, had left him and D.R. and was living with Mark

Eutsey. DHS also learned that Eugenia and Cantobie’s parental rights to A.R., an older sibling

of D.R.’s, were involuntarily terminated in April 2014 based on the grounds of abandonment

and aggravated circumstances along with a finding that termination was in A.R.’s best interest.

D.R. was adjudicated dependent-neglected on February 29, 2016, due to Eugenia and

Cantobie’s lack of suitable housing and their lack of a plan to secure suitable housing. The

adjudication order also provided that both Eugenia and Cantobie tested positive for THC.

The court set a goal of reunification and ordered the Robinsons to follow the case plan, obey

all court orders, and cooperate with DHS; obtain and maintain stable, clean, adequate, and

suitable housing and keep all utilities on; obtain and maintain stable employment or otherwise

provide adequate income to support D.R.; complete parenting classes; submit to random drug

screening and test negative; undergo a psychological evaluation; complete a drug assessment

and follow the recommendations; not use or possess any illegal drugs; and attend and

2
Cite as 2017 Ark. App. 262

participate in individual counseling. DHS had no further contact with Cantobie after February

29, 2016.

On June 21, 2016, Eugenia gave birth to J.R. The following day, DHS removed J.R.

from Eugenia’s custody after learning that Eugenia was still living with Eutsey, who was not

J.R.’s father and who would not permit DHS to enter his home for DHS visits in connection

with D.R.’s case. J.R. was adjudicated dependent-neglected on August 1, 2016, due to

Eugenia’s lack of suitable housing at J.R.’s birth and Cantobie’s lack of contact with DHS since

February 2016. The Robinsons were ordered to follow the same case plan established for D.R.

DHS filed a petition to terminate Eugenia and Cantobie’s parental rights on August 1,

2016. DHS alleged that termination was in the children’s best interest, and the grounds alleged

against Eugenia were: (1) Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A),

(B)(i) (Repl. 2016), which allows for termination if the parent has subjected the juveniles to

aggravated circumstances where a judge has made the determination that there is little

likelihood that services to the family will result in successful reunification; and (2) Arkansas

Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(4), which allows for termination if the parent

has previously had parental rights involuntarily terminated as to a sibling of the juveniles.

Following a termination hearing, the circuit court found that the statutory grounds

DHS alleged against Eugenia had been proved and that it was in the children’s best interest to

terminate parental rights, considering the likelihood that they would be adopted and the

potential harm caused by returning them to Eugenia’s custody. The circuit court entered its

order granting the petition to terminate parental rights on September 20, 2016. This no-merit

appeal followed.

3
Cite as 2017 Ark. App. 262

In compliance with Linker-Flores and Rule 6-9(i), Eugenia’s counsel has examined the

record for adverse rulings and has adequately discussed why there is no arguable merit to an

appeal of the decision to terminate Eugenia’s parental rights, noting that there were no other

adverse rulings or evidentiary objections. We agree that an appeal from the termination

decision would be wholly without merit.

Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A), an order terminating

parental rights must also be based on a finding that termination is in the child’s best interest,

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

potential harm caused by returning custody of the child to the parent. Vasquez v. Ark. Dep’t of

Human Servs., 2009 Ark. App. 575, at 5–6, 337 S.W.3d 552, 556. The harm referred to in the

termination statute is “potential” harm; the circuit court is not required to find that actual

harm would result or to affirmatively identify a potential harm. Id. at 6, 337 S.W.3d at 556. In

addition, the proof must establish at least one of several statutory grounds. Ark. Code Ann. §

9-27-341(b)(3)(B).

Here, DHS presented evidence that the children are likely to be adopted. Crystal

Williams, the DHS adoption specialist, testified that the children’s foster parents were

interested in adopting them and that more than 389 families were identified as interested in

adopting a sibling group of two children matching D.R.’s and J.R.’s characteristics. This court

has held such evidence sufficient to support this element of the best-interest analysis. Davis v.

Ark. Dep’t of Human Servs., 2009 Ark. App. 815, at 10, 370 S.W.3d 283, 288.

The evidence also supports a finding that returning the children to Eugenia presented

a risk of potential harm. DHS supervisor and acting caseworker Mydeana Bridges testified that

4
Cite as 2017 Ark. App. 262

Eugenia tested positive for drugs at the onset of the case and continued to test positive for

drugs. She admitted using marijuana during her pregnancy with J.R. and showed no remorse

for it. The most recent drug test was performed on August 30, 2016—just days before the

termination hearing—and Eugenia was positive for THC. We have held that continued drug

use demonstrates potential harm sufficient to support a best-interest finding in a termination-

of-parental-rights case. Tillman v. Ark. Dep’t of Human Servs., 2015 Ark. App. 119, at 9 (citing

Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7).

Further, Bridges testified that Eugenia failed to obtain and maintain stable housing. In

June 2016, soon after having J.R., Eutsey told Eugenia she had to move out. Eugenia moved

into the home of a friend, but Eugenia was asked to leave that home because she reportedly

stole some of the homeowner’s marijuana. Eugenia reported to Bridges thereafter that she had

been living in an abandoned house without the owner’s permission. Eugenia informed DHS

that she had to “time her entry and leaving of the home so that the owners [would not] see

her.” 3 Bridges testified that Eugenia was living in the abandoned home at the time of the

termination hearing and that she did not believe Eugenia would be able to secure stable

housing within the next four months. Potential harm must be viewed in a forward-looking

manner and in broad terms, including the harm the child suffers from the lack of stability of

a permanent home. Wallace v. Ark. Dep’t of Human Servs., 2015 Ark. App. 481, at 12, 470 S.W.3d

286, 293. Eugenia has been, and continues to be, unable to provide her children with a stable

home—a child’s basic need.

3Eugenia was present at the termination hearing but did not testify.
5
Cite as 2017 Ark. App. 262

There are other factors to support the circuit court’s potential-harm finding. Eugenia

remained married to Cantobie despite knowing that he used illegal drugs and suffered from

mental-health problems and despite her claims that he emotionally and physically abused her.

Eugenia also suffers from bipolar disorder, yet she reported that she had not taken her

medication for the disease since 2013. Eugenia’s drug use and overall instability demonstrated

the risk of potential harm to D.R. and J.R. if they were returned to her. Accordingly, we hold

that there is no merit to the appeal of the circuit court’s best-interest finding.

For grounds, the circuit court found that the children had been subjected to aggravated

circumstances and that Eugenia’s parental rights to a sibling of D.R. and J.R.’s had been

involuntarily terminated. 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. Here, there is no merit to

a challenge to the circuit court’s conclusion that Eugenia’s parental rights to D.R.’s and J.R.’s

sibling had been involuntarily terminated. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4). DHS

introduced into evidence, without objection, the 2014 termination order concerning D.R.’s

and J.R.’s older sibling, A.R.

After carefully examining the record and the no-merit brief, we hold that Eugenia’s

counsel has complied with the requirements for a no-merit parental-rights-termination appeal

and that the appeal is wholly without merit. We therefore affirm the order terminating

Eugenia’s parental rights to D.R. and J.R. and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

GRUBER, C.J., and GLADWIN, J., agree.

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
No response.
6