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B.M. v. Arkansas Department of Human Services

Court of Appeals of Arkansas

April 29, 2015



Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant.

No response.


Appellant B.M. appeals from the order of the Pulaski County Circuit Court terminating her parental rights to her daughter, K.M. Appellant's attorney has filed a no-merit brief and a motion to withdraw as counsel pursuant to Rule 6-9(i) of the Rules of the Arkansas Supreme Court 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 appellant, informing her of her right to file pro se points for reversal, but no such points have been filed.[1] We grant counsel's motion to withdraw and affirm the termination order.

Appellant was thirteen years old when she became pregnant with K.M. (DOB 7/15/12). K.M.'s father, Vanoy Green, who was twenty-one years old at the time, was convicted of statutory rape of appellant and sentenced to a twenty-year term of imprisonment in Texas. The Arkansas Department of Human Services (DHS) became involved with appellant's family in November 2012 after appellant was adjudicated delinquent due to a domestic battery against her mother, Kristil Mitchell. Appellant violated the conditions of her probation in February 2013, and she was placed in juvenile detention, followed by a residential-treatment program at Youth Home. K.M. initially remained in the custody of appellant's mother, Kristil; however, despite the fact that services were offered to the family to prevent removal, DHS eventually exercised a seventy-two-hour hold of K.M. on April 25, 2013, due to Kristil's unfitness and inadequate housing.

Both appellant and K.M. were adjudicated dependent-neglected on July 11, 2013, as a result of parental unfitness. The circuit court found that appellant was an unfit parent, partly based on her family history of instability, and noted that, although the court had previously attempted to release her from detention, appellant did not comply with the court's directives. The court stated that appellant's behavior was out of control, that she was sexually promiscuous, and that she would not follow rules or directives; thus, the court ordered that she remain in a residential facility. The circuit court set the goal of K.M.'s case as reunification, ordered that appellant complete residential treatment and follow the recommendations upon discharge, and ordered supervised visitation with K.M. The court warned appellant that she had one year to work toward reunification with her daughter and that after one year, the court would have to consider alternative means of achieving permanency for K.M. unless there were compelling reasons to continue with reunification efforts. The court stated that for it to find such compelling reasons, appellant would have to make significant, measurable progress, and there would have to be a likelihood that reunification could occur within a time period of a few months.

A permanency-planning hearing was held on February 11, 2014. The circuit court continued the goal of reunification, stating that it would give appellant the full statutory time period of one year to make herself a fit and appropriate parent. The court found that the toxicity of appellant's parents was a concern because it had caused appellant to have dysfunction of her own. The court noted that it was concerned about K.M. also being negatively affected if she were to be returned to appellant's custody. The court found that appellant "still had a long way to go" and that she needed to show maturity and "step up to the plate." The court was disturbed by appellant's desire to maintain a relationship with Green, noting that she had been corresponding with Green's sister via Facebook. The court found that any relationship between the Green family and appellant or K.M. was inappropriate and that appellant needed to demonstrate to the court that Green was out of the picture.

Another permanency-planning hearing was held on April 29, 2014, after K.M. had been out of appellant's custody for one year. The circuit court found that there were issues with appellant's trustworthiness and credibility because she had been dishonest when she initially testified at the hearing that she had not continued to have contact with Green's family and that she did not know where her mother was living. After considering her history and track record, the court found that there were no compelling reasons to give appellant more time to pursue reunification and authorized DHS to file a petition for termination of parental rights. The court noted that termination was not a foregone conclusion and continued services to appellant; however, the court reiterated its concerns about appellant's credibility and her real intentions regarding Green. Thus, the court advised appellant that she needed to address her issues and also achieve the highest level possible at Youth Home.

On May 20, 2014, DHS filed a petition to terminate appellant's and Green's parental rights to K.M. As grounds for termination with regard to appellant, DHS alleged (1) that K.M. had been adjudicated dependent-neglected and remained out of the home for more than twelve months and that the parents had failed to remedy the conditions causing removal; (2) that subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose that demonstrated that return of K.M. to the custody of the parents was contrary to the child's health, safety, or welfare and that, despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parents' circumstances that prevent return of the child to the custody of the parents; and (3) that the parent is found by the court to have subjected the child to aggravated circumstances.

The termination hearing was held on July 29, 2014. Deborah Penny, appellant's therapist at Youth Home, testified that she had worked with appellant since October 2013, when appellant was admitted to the residential-treatment program. Penny stated that appellant had made significant progress during treatment, that she had attained the highest level possible at Youth Home, and that she was ready to be discharged from the program. Penny indicated that appellant had demonstrated increased maturity and consequential thinking skills, including her understanding that contact with her family or with Green could jeopardize her having custody of K.M. According to Penny, appellant had a good prognosis, although she would continue to need structure in a step-down facility. Penny stated that she had discussed the possibility of K.M.'s being placed with appellant in a therapeutic foster home, although one had not yet been identified. Penny indicated that it could take approximately thirty to ninety days for appellant to adapt to her new environment and for K.M. to be gradually integrated into the home. In response to the court's concerns about appellant's continued contact with Green, Penny agreed that this had been an issue as recently as the last court hearing and that it was only since the goal had been changed to termination that appellant had attempted to comply with the court's directives in this regard. Although Penny opined that, due to her progress, appellant's parental rights should not be terminated, Penny agreed that she was qualified to testify as to what was best only for appellant, not K.M.

Toni Hansberry, the DHS caseworker for the family, agreed with Penny that appellant should be given more time to demonstrate that she can be an appropriate parent to K.M. because she had not been given an opportunity to do so during the case. Hansberry indicated that she was hoping to find a therapeutic foster home for appellant, where after a period of transition and additional visitation, K.M. could be placed with her. According to Hansberry, the supervised visits between appellant and K.M. had gone well, although she noted that K.M.'s foster parent had expressed concern over how appellant was taking care of the child as recently as April. When the court asked Hansberry how much additional time appellant would need for reunification to occur, Hansberry indicated that appellant, who was sixteen years old at the time of the hearing, would have to be at least eighteen years old, have stable employment and housing, and demonstrate appropriate parenting skills. Hansberry agreed that it was appellant's fault that she had been placed in a detention facility and had remained there for twenty months. She further agreed that K.M. had not lived with appellant since she was four or five months old. Hansberry testified that K.M. was adoptable and that DHS would have no problem finding an adoptive home for her.

Appellant testified that she had purposely not had contact with Green or his family since May 2014 because she did not want her parental rights terminated. She did testify, however, that she did not think that what Green did to her was wrong because it was consensual. She also indicated that it was not wrong for a twenty-one-year-old to have sex with a thirteen-year-old, although she would not allow her daughter to do so. Appellant further stated that she thought it would be good for K.M. to know Green's family. She requested that the court give her more time to work toward reunification with K.M. and testified that she could learn how to be a parent if given the chance to live in the same home with her child.

After extensively discussing the history of the case and all the evidence presented, the circuit court found that there was clear and convincing evidence to support the termination of appellant's parental rights on all three grounds alleged with respect to appellant in the petition. The court further found that termination was in K.M.'s best interest, specifically considering K.M.'s adoptability and the potential harm to her health and safety if custody were to be returned to appellant. The termination order was entered on October 1, 2014, and appellant timely appealed from this order.[2] ...

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