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Robinson v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

April 26, 2017

EUGENIA ANN MARIE ROBINSON APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. 70JV-16-2] HONORABLE EDWIN KEATON, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          No response.

          LARRY D. VAUGHT, Judge

         Appellant Eugenia Robinson appeals the September 20, 2016 order of the Union County Circuit Court terminating her parental rights to her two children, D.R. and J.R., ages two and a half and ten months, respectively.[1] 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), Eugenia's counsel has filed a no-merit brief and a motion to withdraw, alleging that there are no meritorious grounds for appeal.[2] After a full examination under the proper standards, we hold that counsel provided a compliant no-merit brief demonstrating that an appeal would be wholly without merit and that counsel's motion to be relieved should be granted.

         The Department of Human Services ("DHS") removed D.R. from the custody of her father, Cantobie Robinson, on December 29, 2015, after learning that Cantobie went to the local DHS office with D.R. and advised that he did not have housing or food for her. He advised that they had been spending the night at the Salvation Army for the past ten days; however, they were not permitted to stay there during the day. He reported that he had nowhere to keep D.R. during the day. Cantobie tested positive for marijuana. He also reported that Eugenia, who was three months pregnant, had left him and D.R. and was living with Mark Eutsey. DHS also learned that Eugenia and Cantobie's parental rights to A.R., an older sibling of D.R.'s, were involuntarily terminated in April 2014 based on the grounds of abandonment and aggravated circumstances along with a finding that termination was in A.R.'s best interest.

         D.R. was adjudicated dependent-neglected on February 29, 2016, due to Eugenia and Cantobie's lack of suitable housing and their lack of a plan to secure suitable housing. The adjudication order also provided that both Eugenia and Cantobie tested positive for THC. The court set a goal of reunification and ordered the Robinsons to follow the case plan, obey all court orders, and cooperate with DHS; obtain and maintain stable, clean, adequate, and suitable housing and keep all utilities on; obtain and maintain stable employment or otherwise provide adequate income to support D.R.; complete parenting classes; submit to random drug screening and test negative; undergo a psychological evaluation; complete a drug assessment and follow the recommendations; not use or possess any illegal drugs; and attend and participate in individual counseling. DHS had no further contact with Cantobie after February 29, 2016.

         On June 21, 2016, Eugenia gave birth to J.R. The following day, DHS removed J.R. from Eugenia's custody after learning that Eugenia was still living with Eutsey, who was not J.R.'s father and who would not permit DHS to enter his home for DHS visits in connection with D.R.'s case. J.R. was adjudicated dependent-neglected on August 1, 2016, due to Eugenia's lack of suitable housing at J.R.'s birth and Cantobie's lack of contact with DHS since February 2016. The Robinsons were ordered to follow the same case plan established for D.R.

         DHS filed a petition to terminate Eugenia and Cantobie's parental rights on August 1, 2016. DHS alleged that termination was in the children's best interest, and the grounds alleged against Eugenia were: (1) Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A), (B)(i) (Repl. 2016), which allows for termination if the parent has subjected the juveniles to aggravated circumstances where a judge has made the determination that there is little likelihood that services to the family will result in successful reunification; and (2) Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(4), which allows for termination if the parent has previously had parental rights involuntarily terminated as to a sibling of the juveniles.

         Following a termination hearing, the circuit court found that the statutory grounds DHS alleged against Eugenia had been proved and that it was in the children's best interest to terminate parental rights, considering the likelihood that they would be adopted and the potential harm caused by returning them to Eugenia's custody. The circuit court entered its order granting the petition to terminate parental rights on September 20, 2016. This no-merit appeal followed.

         In compliance with Linker-Flores and Rule 6-9(i), Eugenia's counsel has examined the record for adverse rulings and has adequately discussed why there is no arguable merit to an appeal of the decision to terminate Eugenia's parental rights, noting that there were no other adverse rulings or evidentiary objections. We agree that an appeal from the termination decision would be wholly without merit.

         Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A), an order terminating parental rights must also be based on a finding that termination is in the child's best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parent. Vasquez v. Ark. Dep't of Human Servs., 2009 Ark.App. 575, at 5-6, 337 S.W.3d 552, 556. The harm referred to in the termination statute is "potential" harm; the circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. at 6, 337 S.W.3d at 556. In addition, the proof must establish at least one of several statutory grounds. Ark. Code Ann. § 9-27-341(b)(3)(B).

         Here, DHS presented evidence that the children are likely to be adopted. Crystal Williams, the DHS adoption specialist, testified that the children's foster parents were interested in adopting them and that more than 389 families were identified as interested in adopting a sibling group of two children matching D.R.'s and J.R.'s characteristics. This court has held such evidence sufficient to support this element of the best-interest analysis. Davis v. Ark. Dep't of Human Servs., 2009 Ark.App. 815, at 10, 370 S.W.3d 283, 288.

         The evidence also supports a finding that returning the children to Eugenia presented a risk of potential harm. DHS supervisor and acting caseworker Mydeana Bridges testified that Eugenia tested positive for drugs at the onset of the case and continued to test positive for drugs. She admitted using marijuana during her pregnancy with J.R. and showed no remorse for it. The most recent drug test was performed on August 30, 2016-just days before the termination hearing-and Eugenia was positive for THC. We have held that continued drug use demonstrates potential harm sufficient to support a best-interest finding in a ...


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