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Scarver v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

October 19, 2016



          Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant.

         No response.

          RAYMOND R. ABRAMSON, Judge

         Stasia Scarver appeals from the March 9, 2016 order of the Pulaski County Circuit Court terminating her parental rights to her sons, L.G. (DOB: 10-09-12) and C.G. (DOB: 10-05-13).[1] Scarver's counsel has filed a no-merit brief 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), asserting there are no issues of arguable merit to support the appeal and requesting to be relieved as counsel. The motion is accompanied by an abstract and addendum of the lower court's proceedings and a brief which explains why none of the trial court's rulings present a meritorious ground for appeal. The clerk of this court notified Scarver that she had the right to file pro se points for reversal under Arkansas Supreme Court Rule 6-9(i)(3), but she did not do so.

         On December 9, 2014, the Arkansas Department of Human Services (DHS) placed an emergency hold on L.G. and C.G., after their parents had been arrested and charged with domestic battery. Scarver was also charged with aggravated assault for allegedly swinging a hammer at the children's father.[2] Though Scarver indicated to the Family Service Worker (FSW) that she would no longer be interacting with Garner, immediately upon leaving the DHS office, she was observed picking him up at a local gas station.

         On February 9, 2015, the circuit court entered an order that Scarver had given birth since the last hearing and that the child had been placed for adoption through a private agency. The order further reflected that Scarver had been complying with the case plan and court orders, and the goal was reunification. Scarver also agreed to participate in the Zero to Three program, which would offer her extended benefits, such as more frequent visitation with her children and more services, but that would also require her to work a more intensive case plan. The court accepted the stipulation that L.G. and C.G. were dependent-neglected, and adjudicated them as such.

         On March 11, 2015, the court held a Zero to Three review hearing. At that hearing, Scarver testified that she and Garner had been involved in another violent incident where he broke into her home, stole her phone, and choked her because he thought she was seeing someone else.[3] The court ordered that the case continue as scheduled. On April 22, 2015, the court held another Zero to Three review hearing and found that Scarver's compliance was sporadic and that she had made no progress since the previous hearing.

         DHS filed a petition for termination of parental rights on August 18, 2015, after Scarver had been arrested for aggravated assault, battery, and endangering the welfare of a minor. In the petition, DHS alleged the following grounds for termination: (1) that other factors or issues arose subsequent to the filing of the original petition that demonstrated that return of the juveniles to Scarver would be contrary to their safety, health, and welfare and that despite the offer of appropriate family services, Scarver had manifested the incapacity or indifference to remedy the subsequent issues or factors that prevented the return of the juveniles to her custody, see Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl. 2015); and (2) that Scarver had subjected her children to aggravated circumstances, specifically because there is little likelihood that services to the family will result in reunification, see Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a).

         On October 7, 2015, the court held a permanency-planning hearing and changed the goal to termination and adoption. The termination hearing was set for January 20, 2016; it was then continued to February 10, 2016.

         On January 25, 2016, DHS filed an amended petition for termination of parental rights alleging the additional ground that the children had been out of the custody of the parent for twelve months and, despite a meaningful effort by DHS to rehabilitate and correct the conditions that caused removal, the conditions had not been remedied by the parent pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a).

         On February 10, 2016, the court held the termination hearing, and found that termination of parental rights was in the children's best interest and that three statutory grounds had been proved. The order terminating Scarver's parental rights was entered on March 9, 2016. This appeal follows.

         An order terminating parental rights must be based on clear and convincing evidence that termination is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). In determining whether termination is in the child's best interest, the circuit court must consider the likelihood that the child will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent, parents, or putative parent or parents. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)&(ii) (Repl. 2015).

         Additionally, DHS must prove at least one statutory ground for termination by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(B). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). This court does not reverse a termination order unless the circuit court's findings were clearly erroneous. Meriweather v. Ark. Dep't of Health & Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007). In determining whether ...

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