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Faussett v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

March 15, 2017

LISA FAUSSETT AND ARVOL BATY, JR. APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE DREW COUNTY CIRCUIT COURT [NO. 22JV-15-73] HONORABLE TERESA FRENCH, JUDGE

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant Lisa Faussett.

          Leah Lanford, Arkansas Public Defender Commission, for appellant Arvol Baty, Jr.

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

          BART F. VIRDEN, Judge

         This case involves the termination of parental rights. It comes to us as both the no-merit appeal of father Arvol Baty, Jr., and the merit appeal of mother Lisa Faussett. As to Baty, we affirm the termination of his parental rights and grant the attorney's motion to withdraw. As to Faussett's merit appeal concerning the Arkansas Department of Human Services' (the Department) untimely filing of the petition for the termination of her parental rights, we find no error, and we affirm.

         I. Baty's No-Merit Appeal

         In compliance with Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6-9(i) (2016) of the Rules of the Arkansas Supreme Court and Court of Appeals, Baty's counsel has examined the entire supplemented record for adverse rulings. Counsel has listed the adverse rulings in this case and has adequately discussed why there is no arguable merit to an appeal on any of the identified adverse rulings. Baty was provided a copy of his counsel's brief and motion, and he exercised his right to file pro se points on appeal. The Department and the attorney ad litem filed a joint-response brief asserting that Baty failed to raise the points to the circuit court, and they cannot be alleged for the first time on appeal. In their response, they also assert that Baty asks this court to act as a fact-finder and to reweigh the evidence, which is not the function of the appellate court. See K.C. v. Ark. Dep't of Human Servs., 2010 Ark.App. 353, 374 S.W.3d 884.

         After carefully examining the pro se points filed by Baty, the record, the no-merit brief, and the response brief, we hold that Baty's counsel has complied with the requirements for no-merit, parental-termination appeals and that the appeal is wholly without merit. Accordingly, by memorandum opinion, we affirm the termination of Baty's parental rights to A.B. and J.B. In re Memorandum Opinions, 16 Ark.App. 301, 700 S.W.2d 63 (1985); Ark. Sup. Ct. R. 5-2(e) (2013). We also grant counsel's motion to withdraw from representation of Baty.

         II. Faussett's Appeal of the Denial of her Motion to Dismiss

         We now turn to Lisa Faussett's appeal. Faussett does not challenge the sufficiency of the circuit court's finding that statutory grounds existed such that termination of her parental rights was warranted, nor does she challenge the circuit court's finding that it was in the best interest of the children to terminate her parental rights. On appeal, Faussett asserts that the circuit court erred in denying her motion to dismiss the Department's petition to terminate her parental rights because the petition was filed late. We find no merit in her argument, and we affirm.

         A brief recitation of the facts of the case is helpful in understanding the issue concerning the timeliness of the petition for termination. On February 2, 2015, the Department filed a petition for emergency custody and dependency-neglect in the Desha County Circuit Court. In its petition, the Department requested that the court order the removal of M.F. (b. 2/25/00), D.F. (b. 1/23/03), J.B. (b. 8/24/06), and A.B. (b. 10/23/07) from their home. In the attached affidavit, the family service worker stated that a 72-hour hold had been placed on the children on January 29, 2015, based on educational neglect and failure to protect. On February 3, 2015, an ex parte order for emergency custody was issued, removing the children from the home in order to protect their health and safety. The circuit court entered an order on March 30, 2015, in which it found that there was probable cause that emergency conditions existed such that immediate removal of the juveniles from Faussett's custody was necessary. The case was transferred to Drew County on April 2, 2015.

         On April 14, 2015, the Drew County Circuit Court entered an order in which it found that the children were dependent-neglected, that the juveniles had been subjected to parental unfitness, and that they were at a substantial risk of serious harm due to exposure to illegal drugs, inadequate housing, and educational neglect.

         In the September 29, 2015 review order, the circuit court noted that it heard testimony from caseworker Shanna Jefferson that Faussett had been cooperative with the Department, but ...


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