FROM THE LITTLE RIVER COUNTY CIRCUIT COURT [NO. 41JV-14-69]
HONORABLE TOM COOPER, JUDGE
Lanford, Ark. Pub. Defender Comm'n, for appellant.
D. VAUGHT, JUDGE
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). 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. 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
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.
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.
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.
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.
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
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. Ark. Code Ann. §
(ix)(a)(3)(A). The petition also alleged that
termination of parental rights was in the juveniles' best
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
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.
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 ...