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McGaugh v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

October 19, 2016



          Leah Lanford, Ark. Pub. Defender Comm'n, for appellant.

         No response.


         This appeal arises from the circuit court's February 25, 2016 order terminating the parental rights of Jill McGaugh to G.C. (born 4-20-12) and A.M. (born 8-26-14).[1] 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) (2016), McGaugh'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.[2] Counsel's brief contains an abstract and addendum of the proceedings below, discusses the adverse rulings, and explains that there is no meritorious ground for reversal. See Linker-Flores, supra; Ark. Sup. Ct. R. 6-9(i). We affirm the order terminating McGaugh's parental rights 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, 2014 Ark.App. 715, at 2, 451 S.W.3d at 233.

         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.

         Arkansas Supreme Court Rule 6-9(i)(1) 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, counsel explains in her no-merit brief that any argument challenging the statutory grounds for termination or the circuit court's best-interest finding would be wholly frivolous. She also explains that there was only one other adverse ruling-the circuit court's denial of a motion for continuance-and that there is no meritorious ground for reversal on that ruling.

         After exercising a hold on the children and placing them in foster care, on November 18, 2014, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect. The accompanying affidavit stated that on August 27, 2014, DHS received a report that McGaugh had tested positive for opiates following the birth of A.M. and that she had admitted methamphetamine use throughout her pregnancy. A child-protective-services case was opened on the family. On November 11, 2014, DHS representatives made a weekly visit to McGaugh's home and were informed by her parents, Marilyn Newton and Alvin McGaugh, that McGaugh had been incarcerated the day before and that they would not be able to care for the children after December 1, 2014. Marilyn stated that McGaugh had been abusing methamphetamine in the past months, threatening them, and vandalizing their home. They also admitted that they had been covering for her when DHS had attempted to locate her or provide services. Two days later, when DHS representatives interviewed McGaugh in the detention center, she reported that she did not know how long she would be incarcerated and that she believed her parents would care for her children. DHS representatives returned to McGaugh's parents the following day, and they confirmed that they would not be willing to care for G.C. and A.M.

         On November 18, 2014, the court entered an ex parte order for emergency custody. In a December 30, 2014 order, the circuit court found probable cause that the emergency conditions necessitating G.C. and A.M.'s removal from McGaugh's custody continued and that it was contrary to their welfare to be returned home. The juveniles were adjudicated dependent-neglected on March 16, 2015, due to McGaugh's incarceration with no appropriate persons willing to provide for their care and custody; their mother's drug use while pregnant with A.M.; and her sentence to seven years' imprisonment on December 1, 2014. The circuit court noted that McGaugh's parents had changed their mind about caring for the children; however, the court did not authorize placement with them due to concerns about Marilyn Newton's criminal history, child maltreatment, drug abuse, lack of income, and lack of adequate space for the children. At a June 2015 review hearing, the circuit court found that DHS had made reasonable efforts to provide services and that McGaugh had not complied with the case plan or the court's orders. The goal of the case continued to be reunification.

         DHS filed the petition for termination of parental rights on July 6, 2015. The petition set forth three statutory grounds for terminating parental rights applicable to McGaugh: (1) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in 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 the placement of the juvenile in the custody of the parent; (2) the parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life; and (3) the parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to have subjected any juvenile to aggravated circumstances.[3] Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a), (viii), (ix)(a)(3)(A). The petition also alleged that termination of parental rights was in the juveniles' best interest.

         At the termination hearing held on February 2, 2016, DHS caseworker Alexis Lampkins testified that except for attending one parenting class, McGaugh had completely failed to comply with the case plan and had not reached the goal of reunification. She stated that during the period of time in which McGaugh was not incarcerated, September-November 2015, the department scheduled a drug-and-alcohol assessment, a psychological evaluation, and counseling; however, McGaugh had failed to attend the appointments. Lampkins added that McGaugh had failed to secure stable housing and employment, she had missed several visits with the children, she had failed to maintain contact with DHS, and she had failed to support the children.

         DHS adoption specialist Lisa Forte testified that G.C. and A.M. are adoptable and that there were several adoptive placements for the children. Linda Larey, a CASA volunteer, stated that G.C. and A.M. were thriving in their foster placements. In recommending termination, Larey said that the children had been in foster care for over one year-most of A.M.'s life- and that they needed a permanent placement.

         McGaugh testified that DHS became involved with her family in August 2014 when she tested positive for drugs following the birth of A.M. She said that her children were removed from her custody in November 2014 when she was incarcerated for a probation violation and was sentenced to seven years' imprisonment. She conceded that she did not complete any services while incarcerated. She stated that she was released from prison in September 2015 and was aware that she was required to comply with the DHS case plan. She said that ...

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