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Sims v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

February 25, 2015

SHARON SIMS APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV2013-1011] HONORABLE WILEY A. BRANTON, JR., JUDGE

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

No response.

CLIFF HOOFMAN, Judge

Appellant Sharon Sims appeals from the order of the Pulaski County Circuit Court terminating her parental rights to her three children, A.B., J.A., and J.R.[1] Sims's attorney has filed a no-merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court Rule 6-9(i) (2014) and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). The clerk of this court mailed a certified copy of counsel's motion and brief to Sims's last known address informing her of her right to file pro se points for reversal; however, she has not done so.[2] We grant counsel's motion to withdraw and affirm the order of termination.

On May 31, 2013, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody of then five-year-old A.B., three-year-old J.A., and one-year-old J.R. In the affidavit attached to the petition, DHS stated that the three children were found home alone on May 29, 2013, after the police were contacted by a neighbor who had seen one of the children wandering around the apartment complex where they lived at approximately 11:00 p.m. The affidavit indicated that Sims returned home after the police arrived and admitted that she left the children unattended while she went to Wal-Mart to buy groceries. However, the police officer noted that Sims was not carrying any bags of groceries when she returned. Sims was arrested for child endangerment, and DHS placed a seventy-two-hour hold on the children because they had no legal caretaker.

The circuit court granted DHS's petition for emergency custody on May 31, 2013, and on June 28, 2013, the court entered an order finding that probable cause existed for removal of the children. The parties stipulated that the children were dependent-neglected due to neglect and parental unfitness at the adjudication hearing held on July 9, 2013. Sims remained incarcerated for the child-endangerment charges at the time of the hearing, and the circuit court ordered that reunification services be initiated and completed once she was released. The court ordered that Sims submit to a psychological evaluation, attend parenting classes, participate in individual counseling, obtain and maintain stable housing and income, refrain from illegal drug use, submit to random drug screens, and have supervised visitation with the children on a weekly basis.

A review hearing was held in November 2013, and the circuit court found that Sims had not complied with the case plan. She had been released from jail in August but had attended only two out of six counseling sessions. Sims also tested positive for illegal drugs, including Methadone, THC, benzodiazepine, and PCP, on five separate occasions between August and the time of the November hearing. She remained unemployed and was residing at a women's shelter. The court noted that Sims was scheduled to begin thirty days of inpatient drug treatment subsequent to the hearing.

The permanency-planning hearing was held in April 2014, but Sims failed to appear despite notice of the hearing. The court found that Sims had completed inpatient drug treatment in December 2013 and that it had been recommended that she enter and complete outpatient treatment at a chem-free home, although she had failed to do so. The court noted that Sims had tested positive for THC, benzodiazepines, and cocaine on February 26, 2014, and that she had not contacted DHS or visited with her children since that date. The goal of the case was changed to termination of parental rights and adoption.

DHS filed a petition for termination of Sims's parental rights on May 19, 2014, and alleged five separate grounds for termination with respect to Sims under Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2013): (1) that juveniles have been adjudicated by the court to be dependent-neglected and have continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent; (2) that subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose 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 or rehabilitate the parent's circumstances that prevent return of the juveniles to the custody of the parent; (3) that the parent had subjected the juveniles to aggravated circumstances; (4) that the juveniles have lived outside the home of the parent for a period of twelve months and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juveniles; and (5) that the parent has abandoned the juveniles.

The termination hearing was held on July 1, 2014. Andrew Beavers, a counselor with Recovery Centers of Arkansas, testified that Sims completed the inpatient drug treatment program on December 16, 2013. He stated that she then entered the outpatient program on January 8, 2014, but did not complete the treatment. Beavers testified that his last contact with Sims was in March 2014. The DHS caseworker, Willie Baker, testified that Sims had completed parenting classes. However, in addition to not completing outpatient drug treatment, Sims had failed to complete her psychological evaluation and to obtain or maintain stable housing or employment. Baker stated that Sims had also failed to maintain contact with DHS and had only visited her children once since the last hearing. Baker further testified that Sims had tested positive for illegal drugs on two occasions in May 2014. According to Baker, Sims had not made substantial progress toward reunification, and it would be harmful to the children to return custody to her due to her instability, poor decision making, and continued drug usage. Baker testified that the children were adoptable and that there were potential adoptive placements that had been identified for them.

Sims testified that she was currently living at Children and Women First shelter. She indicated that she was kicked out of the chem-free housing on February 26, 2014, because of disorderly conduct. Sims stated that she was not receiving drug treatment at the time of the hearing, although she was attending a weekly discussion meeting. Sims admitted, however, that she had used drugs as recently as three weeks prior to the termination hearing. She testified that she had quit her most recent employment because she did not have transportation. According to Sims, the shelter where she was residing had offered to assist her, and she believed that she would be ready to have her children returned within sixty days. She asked the court to dismiss the termination petition and to allow her more time to reunify with her children.

Following the hearing, the circuit court entered an order on August 6, 2014, finding that there was clear and convincing evidence to support termination of Sims's parental rights on all five grounds alleged in the petition and that termination was in the children's best interest. Sims filed a timely notice of appeal from the circuit court's decision. Her counsel has filed a no-merit brief, in which she contends that there are no meritorious issues for appeal.

There was only one adverse ruling with respect to Sims during the termination hearing, and that was the circuit court's decision to terminate her parental rights. While counsel also discusses Sims's request at the conclusion of the hearing to dismiss the petition and give her additional time to reunify with her children, this is related to the issue of whether there was ...


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