Ware v. Arkansas Department of Human Services

2014 Ark. App. 467

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-372

Opinion Delivered September 17, 2014

MONIQUE WARE APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-2012-325-D/N]
V.
HONORABLE THOMAS E. SMITH,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILDREN AFFIRMED; MOTION TO
APPELLEES WITHDRAW GRANTED

BRANDON J. HARRISON, Judge

The Benton County Circuit Court terminated the parental rights of Monique

Ware to her children J.A., C.A., M.W., K.W., X.W., and G.W. Ware’s counsel has filed

a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359

Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 6-9(i) (2013), asserting that there

are no meritorious issues that could arguably support an appeal and seeking permission to

withdraw as counsel. The clerk of this court sent a copy of counsel’s brief and motion to

withdraw to Ware at her last known address, advising her of her right to file pro se points

for reversal pursuant to Ark. Sup. Ct. R. 6-9(i)(3), but the notification was returned

marked “insufficient address.” We grant counsel’s motion to withdraw and affirm the

order terminating Ware’s parental rights.

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2014 Ark. App. 467

On 14 May 2012, the Department of Human Services (DHS) filed a petition for

emergency custody of Ware’s six children. The attached affidavit described reports of

environmental neglect, inadequate supervision, failure to protect, cuts/bruises/welts, and

striking a child. When the children were taken into custody, Ware tested positive for

THC, “Benzos,” and admitted to smoking marijuana while her children were present in

the home. The affidavit also noted that DHS had a history with Ware starting in August

2011, when G.W. and X.W. were born at thirty weeks and both Ware and the babies

tested positive for THC. In January 2012, there was a report of medical neglect due to

Ware’s failure to take the twins to scheduled doctor’s appointments.

The court adjudicated the children dependent-neglected in August 2012 and

ordered Ware to complete parenting classes, attend counseling, obtain and maintain stable

housing and employment, obtain a drug and alcohol assessment, and refrain from the use

of alcohol or illegal substances. DHS provided a number of services to Ware, including

visitation, medical services, referral for drug and alcohol assessment, referral for

psychological evaluation, clothing purchases, tutoring referral, referral for counseling,

home visits, and transportation.

In a permanency-planning order filed 23 July 2013, the court found that Ware had

partially complied with the case plan by attending counseling and parenting classes but that

she had not obtained stable housing or income and had not submitted to hair-follicle

testing. The court again ordered her to comply with the requirements of the case plan

and to “submit to a hair follicle test forthwith.” In a review order filed 13 August 2013,

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2014 Ark. App. 467

the court noted that Ware’s hair-follicle test showed a positive result for

methamphetamine and THC.

DHS filed a petition to terminate Ware’s parental rights on 23 August 2013, citing

three statutory grounds for termination: (1) the juveniles have been adjudicated by the

court to be dependent-neglected and have continued to be out of the custody of the

parent for twelve months, and despite meaningful efforts by DHS to rehabilitate the parent

and correct the conditions that caused removal, those conditions have not been remedied;

(2) other factors or issues arose subsequent to the filing of the original petition for

dependency-neglect that demonstrate that return of the juveniles to the custody of the

parent is contrary to the juveniles’ 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; (3) the children have been subjected to aggravated

circumstances because there is little likelihood that services to the family will result in

successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), (vii)(a), & (ix)(a)(3)

(Supp. 2011).

After a hearing, the court terminated Ware’s parental rights to her six children.

The court found that the children were likely to be adopted, that the health and safety of

the children would be at risk if returned to the custody of their mother, and that DHS had

proved all three grounds alleged in the petition. Specifically, the court found that

[d]espite the services Monique Ware has tested positive for methamphetamines and
marijuana during the pendency of this action, has not accomplished her case plan
goals, does not consistently take her prescribed medication, has not provided proof
of therapy attendance or psychiatrist attendance, and has refused to tell the
Department or CASA where she is currently living.

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2014 Ark. App. 467

The court also found aggravated circumstances because Ware “has demonstrated a clear

incapacity or inability to remedy the conditions which caused removal.” Ware has timely

appealed from this order.

A circuit court’s order that terminates parental rights must be based on findings

proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2011);

Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and

convincing evidence is proof that will produce, in the fact-finder, a firm conviction on the

allegation sought to be established. Dinkins, supra. On appeal, we will not reverse the

circuit court’s ruling unless its findings are clearly erroneous. Id. 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. Id.

In determining whether a finding is clearly erroneous, an appellate court gives due

deference to the opportunity of the circuit judge to assess the witnesses’ credibility. Id.

In her no-merit brief, Ware’s counsel contends that clear and convincing evidence

supports both the finding of grounds for termination and the finding that termination

would be in the children’s best interest. With regard to best interest, counsel notes

testimony that there were individuals who had expressed a desire to adopt five of the six

children, and the remaining child, M.W., was a fun and healthy seven-year-old who was

highly adoptable. Counsel also cites Ware’s continued drug use, her failure to comply

with the court’s orders, and her failure to address her mental-health issues as evidence of

potential harm to the children.

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2014 Ark. App. 467

Regarding the grounds for termination, Ware’s counsel explains that only one

ground is required to be proved and argues that, in this case, there was clear and

convincing evidence that Ware had manifested the incapacity or indifference to remedy

the subsequent issues or factors that prevented the children from returning to her care.

Counsel notes that Ware was threatened with eviction three times during the circuit-court

case and refused to disclose her current address to DHS; that Ware had been employed at

her current job for only three months; and that she failed to address her mental-health

issues and substance-abuse issues and continued to use illegal drugs. Counsel concludes

that Ware “clearly manifested an indifference to participate in treatment to ensure that her

issues would be addressed in a way to make her a safe and stable parent for her children.”

In addition, counsel has identified the adverse rulings against Ware and explained why

those rulings do not provide meritorious grounds for reversal.

We agree that the circuit court had ample evidence upon which to find that it was

in the children’s best interest for Ware’s rights to be terminated and that statutory grounds

for termination existed. Thus, we grant counsel’s motion to withdraw and affirm the

termination of Ware’s parental rights.

Affirmed; motion to withdraw granted.

WYNNE and GLOVER, JJ., agree.

Dusti Standridge, for appellant.

No response.

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