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Houseman v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

April 27, 2016

JENNIFER HOUSEMAN APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN APPELLEES

APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. 58JV-13-261] HONORABLE KEN D. COKER, JR., JUDGE

Tabitha B. McNulty, Arkansas Public Defender Commission, for appellant.

No response.

RITA W. GRUBER, Judge

This appeal arises from the circuit court's October 8, 2015 order terminating the parental rights of Jennifer Houseman and Marc Mathis to A.M.1 and A.M.2. 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), Houseman's counsel has filed a motion to be relieved and a no-merit brief asserting that there are no issues of arguable merit to support an appeal. The clerk of this court attempted to deliver to Houseman, by certified mail, a packet with a copy of her attorney's motion and brief, along with a letter informing her of her right to file pro se points for reversal in the case. The packet, sent to Houseman's last-known address, was returned to the clerk's office marked "moved left no address, unable to forward, " and no pro se points have been filed.

Counsel's brief contains an abstract and addendum of the proceedings below, discusses the adverse ruling to terminate and another possible adverse ruling, and explains that there is no meritorious ground for reversal. See Linker-Flores, supra; Ark. Sup. Ct. R. 6-9(i) (2015). We note from the outset that counsel does not discuss the proper ground for termination regarding A.M.2. However, for the reasons we set forth in this opinion, we affirm the order terminating Houseman's parental rights[1] and grant counsel's motion to withdraw.

Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Harbin v. Ark. Dep't of Human Servs., 2014 Ark.App. 715, at 2, 451 S.W.3d 231, 233. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(B), (b)(3)(A) (Repl. 2015); Harbin, supra.

We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep't of Human Servs., 2012 Ark.App. 209, at 6, 396 S.W.3d 272, 276. The grounds for termination of parental rights must be proved by clear and convincing evidence, which is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Hughes v. Ark. Dep't of Human Servs., 2010 Ark.App. 526, at 2. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is 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 resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep't of Human Servs., 2015 Ark. 356, at 7; Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001).

Arkansas Supreme Court Rule 6-9(i)(1) (2015) allows counsel for an appellant in a termination case to file a no-merit petition and motion to withdraw if, after studying the record and researching the law, counsel determines that the appellant has no meritorious basis for appeal. The petition must include an argument section that "shall list all adverse rulings to the appellant made by the circuit court on all objections, motions, and requests made by the party at the hearing from which the appeal arose and explain why each adverse ruling is not a meritorious ground for reversal." Ark. Sup. Ct. R. 6-9(i)(1)(A). Additionally, the petition's abstract and addendum "shall contain all rulings adverse to the appellant" made by the circuit court at the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-9(i)(1)(B).

Here, the circuit court found that termination of parental rights was in the children's best interest and found that three statutory grounds had been proved. Counsel states in her no-merit brief that any argument challenging the statutory grounds for termination or the circuit court's "best interest" findings would be wholly frivolous. She also states that no issue of arguable merit was preserved regarding the circuit court's declining a request to place the juveniles with their paternal grandmother. See Ogden v. Ark. Dep't of Human Servs., 2012 Ark.App. 577, 424 S.W.3d 318 (holding that our statutory provision that a relative be given preferential consideration for initial placement does not apply to placement when termination of parental rights has been requested and noting that appellants presented no new or persuasive arguments that termination was precluded by the grandmother's willingness to care for the juvenile).

On December 2, 2013, the Arkansas Department of Human Services (ADHS) filed a petition for emergency custody and dependency-neglect. The accompanying affidavit referred to a "Newborn Illegal Substance Exposure" report made to ADHS. According to the affidavit, Houseman—who had a history of drug abuse—had given birth to A.M.1 on November 27, 2013. The same day, Houseman was positive for opiates, amphetamines, and benzodiazepine in the hospital's initial test; Houseman's second test revealed the additional presence of methamphetamine and propoxyphene; and the father tested positive for methamphetamine, opiates, and amphetamines. The affidavit also stated,

[A.M.2], 1-year-old, has been living with paternal grandmother Concetta Mathis for the past few months. Jennifer stated [A.M.2] went to live with Concetta because Jennifer was pregnant, homeless and living in her car, and having problems dealing with everything going on. Concetta appears to be meeting all of the child's needs, and the parents are having no contact with her at this time.
Jennifer has a true finding from 10-8-13 for Threat of Harm with [A.M.2] as the victim. Jennifer was admitted to Bridgeway Hospital for acute mental health treatment after stating that she wanted to kill herself by driving her car into the river and stating she wanted to choke her 1-year-old daughter.

The affidavit recited that ADHS had exercised a 72-hour hold on A.M.1 due to Houseman's drug abuse and prenatal drug exposure; that A.M.1 was "in substantial, serious danger of irreparable harm unless removed from the care of . . . Houseman"; and that no hold was taken on A.M.2, who did not appear to be in immediate danger while living with the grandmother. ...


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