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Everett v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

November 9, 2016




          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          No response.

          PHILLIP T. WHITEAKER, Judge

         Jesse Everett appeals a Pulaski County Circuit Court order terminating his parental rights to his son L.E.[1] Everett's counsel has filed a motion to withdraw from representation and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2003) and Arkansas Supreme Court Rule 6-9(i) (2015), stating that there are no meritorious grounds to support an appeal. Counsel identified three adverse rulings: the termination decision, the denial of his request for additional time for rehabilitation, and the trial court's failure to make a relative placement. The clerk twice mailed a certified copy of counsel's motion and brief to Everett, informing him of his right to file pro se points for reversal.[2] Everett failed to file his pro se points by the deadline specified in our rules.[3] His pro se points are, therefore, untimely and are not properly before us for review. Because there are no issues of arguable merit presented, we affirm and grant counsel's motion to withdraw.

         The facts surrounding the removal of the child and the ultimate termination of parental rights are these. L.E. was removed from the care of Jordan Goff, L.E.'s mother, by the Department of Human Services (DHS) due to Goff's drug use and inadequate supervision. DHS filed a dependency-neglect petition to which Everett was named as a party. Everett appeared at the probable-cause hearing and testified that he was incarcerated at the time of L.E.'s birth, but that he believed he is L.E.'s father and agreed to take a paternity test.[4]Everett further admitted that he had a pending misdemeanor drug charge in Sherwood but insisted he did not have a drug problem. He was on parole from previous drug charges at the time of the probable-cause hearing. L.E. was adjudicated dependent-neglected on June 23, 2014, based on a stipulation of parental unfitness due to Goff's drug usage.

         Throughout the course of the dependency-neglect proceeding, Everett was granted supervised visitation with L.E. twice a week, which was contingent upon negative drug screens. Everett was also ordered to submit to random drug screens; to complete a drug-and- alcohol assessment, a counseling assessment, and a psychological evaluation; to complete parenting classes; to establish paternity; and to maintain stable housing and employment.

         At times, the court noted that Everett had made some progress. However, the court also expressed concern that Everett had lied to the court about his drug usage, which created an apprehension that he was either using, selling, or stockpiling hydrocodone prescribed for his knee. By September 2014, Everett was incarcerated. His incarceration resulted in several delays of the proceedings due to irregularities in executing transport orders.

         In August 2015, DHS filed a petition to terminate Everett's rights to L.E. The petition alleged first that Everett had not proved significant contacts with the juvenile sufficient for his parental rights to attach. In the alternative, DHS also alleged the following grounds for termination with respect to Everett: (1) that L.E. had been adjudicated dependent-neglected and had continued outside Everett's custody for more than twelve months and that, despite meaningful effort by DHS to rehabilitate him and correct the conditions which caused removal, the conditions had not been remedied; (2) that other factors had arisen subsequent to the filing of the dependency-neglect petition which demonstrated that return of the child to Everett's custody would be contrary to his health, safety, or welfare and that, despite the offer of appropriate family services, Everett had manifested an incapacity or indifference to remedy the subsequent issues; and (3) that Everett had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child's life.

         After a hearing on the petition to terminate, the court entered an order terminating Everett's parental rights on the subsequent-factors and lengthy-incarceration grounds alleged in the petition. The court further found that, because L.E. was adoptable and that potential harm existed if L.E. were returned to Everett's custody, termination was in L.E.'s best interest. This appeal followed.

         Our standard of review in termination-of-parental-rights cases is well settled. The termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep't of Human Servs., 2014 Ark.App. 666, 448 S.W.3d 735; Stockstill v. Ark. Dep't of Human Servs., 2014 Ark.App. 427, 439 S.W.3d 95. As a result, the law places a heavy burden on the party seeking to terminate the relationship of a parent. Fox, supra.

         Here, DHS sought to terminate Everett's natural rights as a parent. In order to terminate Everett's rights, DHS had to prove two things. First, that termination is in the best interest of the child, considering the likelihood that the child will be adopted if the parent's rights are terminated and the potential harm caused by returning the child to the custody of the parent. Weatherspoon v. Ark. Dep't of Human Servs., 2013 Ark.App. 104, 426 S.W.3d 520; Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015). Second, the existence of one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). Henson v. Ark. Dep't of Human Servs., 2014 Ark.App. 225, 434 S.W.3d 371. Both of these requirements must be proved by clear and convincing evidence.

         Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Fox, supra. When the burden of proving a disputed fact in equity is by clear and convincing evidence, the question that we must answer on appeal is whether the trial 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 ...

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