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Bane v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

December 14, 2016

LATISHA BANE AND JOSEPH BANE, APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN, APPELLEES

         APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT [NO. 15JV-15-21] HONORABLE TERRY SULLIVAN, JUDGE

         AFFIRMED; MOTION GRANTED

          Dusti Standridge, for appellant Latisha Bane.

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

          Mary Goff, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          KENNETH S. HIXSON, Judge

         Appellant Latisha Bane and appellant Joseph Bane appeal separately from the termination of their parental rights to their fourteen-year-old daughter N.B., twelve-year-old son A.B.1, and nine-year-old daughter A.B.2. On appeal, Latisha argues that she received improper service of process, and further argues that the case should not have gone forward without a determination of whether an attorney ad litem should have been appointed for her. Latisha also challenges the sufficiency of the evidence to support the termination of her parental rights. Joseph's counsel has filed a no-merit appeal and a motion to withdraw, stating that there is no issue of arguable merit to advance on appeal and that she should be relieved of counsel. We affirm both appeals, and we grant Joseph's counsel's motion to be relieved.

         We review termination of parental rights cases de novo. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015); Mitchell v. Ark. Dep't of Human Servs., 2013 Ark.App. 715, 430 S.W.3d 851. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark. Dep't of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006).

         Latisha and Joseph lived with their three children in a trailer in Hattiesville, Arkansas. In 2011, Latisha suffered a stroke, which rendered her unable to care for herself. Shortly thereafter, Joseph was appointed as Latisha's permanent guardian. The order appointing Joseph as guardian stated that the guardianship was necessary due to Latisha's lack of capacity to make decisions for her health or safety, and that Latisha's impairments were not expected to improve. After his appointment as guardian, Joseph became the caretaker of both Latisha and the children.

         These proceedings began on March 3, 2015, when appellee Arkansas Department of Human Services (DHS) exercised an emergency hold on all three children. According to a caseworker's affidavit, Joseph had been arrested on misdemeanor warrants and, as a result of Latisha's medical condition, she was unable to care for the children. Police investigators informed the caseworker that Joseph had admitted that he supplied alcohol to his oldest daughter, N.B., who was then twelve years old, as well as to a twenty-year-old woman. Joseph had further acknowledged to police that he witnessed a sexual assault by the woman on his daughter N.B., but that he had failed to report the incident or cooperate in the investigation. The police investigator stated that Joseph would be charged with contributing to the delinquency of a minor and endangering the welfare of a minor, and that it was uncertain how long Joseph would remain in jail. Based on these allegations DHS filed a motion for emergency custody of all three children, and on March 6, 2015, the trial court entered an ex parte order for emergency custody finding that immediate removal of the children was necessary to protect their health and safety.

         On June 22, 2015, the trial court entered an order adjudicating the children dependent-neglected. The adjudication was based on the parents' stipulation of neglect based on Joseph's failure to take reasonable action to protect his twelve-year-old daughter from sexual abuse or to report the abuse after he observed it. At the time of the adjudication the parents had not participated in the case despite numerous attempts by a caseworker to contact the parents and develop a case plan. The goal of the case was reunification. The trial court ordered DHS to offer services toward reunification and ordered the parents to cooperate with DHS and comply with the case plan.

         A review order was entered on September 30, 2015, and the goal of the case continued to be reunification. Trina Yerby appeared at the review hearing as counsel for Latisha and Joseph. In the review order, the trial court found that DHS had made reasonable efforts to provide family services including parenting classes, drug-and-alcohol assessments, psychological evaluations, home visits, counseling, transportation, and visitation with the children. The trial court found that Latisha had minimally complied with the case plan, in part due to her disability. The trial court also found that Joseph had minimally complied with the case plan, stating that he lived in a structurally unsound and filthy home, was unemployed, was abusing pain medication, had tested positive for opiates, and had stopped attending parenting classes. The trial court noted that the parents had visited the children only five times since the children were taken into DHS custody.

         Another review order was entered on January 7, 2016, at which time the case goal was changed to termination of parental rights and adoption. Trina Yerby appeared at the hearing as counsel for the parents. In that order, the trial court again found that both parents had minimally complied with the case plan. The trial court found that Joseph had not completed parenting classes, was discharged from counseling for failure to participate, and had tested positive for benzodiazepines without a prescription. The trial court stated that Joseph had made no progress at all on cleaning or repairing the home, that there were huge holes in the floor, and that there were multiple animals living there causing feces and urine to accumulate and strong odors to permeate the trailer. The trial court noted that the parents had attended only eight visits with the children since the case had begun.

         DHS filed a petition to terminate both parents' parental rights on March 1, 2016. The termination hearing was held on May 5, 2016. Trina Yerby appeared at ...


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