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Dodge v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

June 18, 2014



Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.

No response.


Amber Dodge appeals the Johnson County Circuit Court's decision to terminate her parental rights to her children J.H., K.F., and T.F. Amber'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 (2013); Linker-Flores v. Ark. Dep't Human Servs., 359 Ark. 131, 194 S.W. 739 (2004). Amber has filed pro se points for reversal under Ark. Sup. Ct. R. 6-9(i)(3) (2013). We have reviewed her pro se points, but none give us a legal basis to reverse the circuit court's decision. We therefore affirm the court's decision to terminate Amber's parental rights to J.H., K.F., and T.F. and grant counsel's motion to withdraw.

The Johnson County Circuit Court granted the Arkansas Department of Human Services (DHS) emergency custody of J.H., K.F., and T.F. on 25 September 2011 after the children's father figure and J.H.'s biological father, Billy Harris, almost died from a drug overdose. The court adjudicated the children dependent-neglected in November 2011, "[s]pecifically due to inadequate supervision because of the father's drug use." For over a year and a half the case plan's goal was to reunite Amber with her children. In April 2013, however, the court changed the case goal from reunification to adoption. DHS petitioned to terminate Amber's parental rights in June 2013. The petition alleged that terminating Amber's parental rights was in the children's best interest and that two statutory grounds for termination existed under Arkansas Code Annotated sections 9-27-341(b)(3)(B)(i)(a) & (vii)(a) (Supp. 2011). In its September 2013 termination order the court found that DHS had proved all the statutory grounds alleged in its petition by clear and convincing evidence. The court also found that a termination of Amber's parental rights was in the children's best interest, that the children were likely to be adopted, and that they faced harm if returned to her. Amber appeals the court's decision.

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 upon a finding by clear and convincing evidence that the sought after termination is in the children's best interest. 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) (2013). 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 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).

Amber's attorney maintains here that there would be no merit in challenging the sufficiency of the statutory grounds or the court's best-interest finding. We agree.

The circuit court terminated Amber's rights on two statutory grounds—the "failure to remedy" ground and the "other factors arising" ground. Amber's counsel argues that clear and convincing evidence supports both grounds. We need not address both grounds because DHS only had to prove one statutory ground to support a termination—and it did so. The statutory ground on which we affirm the termination order is the "other factors" ground, which states:

[O]ther factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to 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 return of the juvenile to the custody of the parent.

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2011).

The circuit court decided to terminate Amber's parental rights on this statutory ground given Amber's inability to make safe decisions for her children. Although Amber had almost fully complied with the case plan, had a job at McDonald's for over two years, had a support group at church, and had adequate housing, the court still found that Amber "simply does not have the ability to protect her children which is a basic requirement for being a parent, and sadly, she is not going to be able to correct this problem within a reasonable time." DHS presented evidence showing that Amber let a man work on her car despite knowing that he was not a mechanic. That decision was unwise because her car's brakes failed and a tire came off the car (at separate times). The court found that Amber had lied to the caseworker about a man named Doug being at her house as he hid in her bathroom, poured money into a house with a man named Landon but was kicked out of it soon after, and failed to call the police when Chad Nichols tried to break into her house. Perhaps most important was that the evidence at the hearing also showed that Amber allowed her young daughter to be around Danny LeBlanc, a cousin who had sexually abused Amber when she was a child, during her visitation times with the child.

The court also noted that Amber had allowed LeBlanc to drive her car when he was drunk, which resulted in a car crash ...

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