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Davis v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

May 3, 2017



          Tabitha McNulty, Arkansas Public Defender Comm'n, for appellant Stephany Davis.

          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant Daniel Brown.

         No response.


         Stephany Davis and Daniel Brown[1] appealed separately from the termination of their parental rights to two minor children, A.B. (DOB 8-24-2011) and D.B. (DOB 5-12-2015). Stephany has another child, D.A.B. (DOB 5-7-2008), who is in the custody of Stephany's mother and is not part of this case. Stephany's and Daniel's attorneys have filed no-merit briefs and motions to withdraw pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6-9 of the Rules of the Arkansas Supreme Court and Court of Appeals, setting forth the adverse rulings, explaining why each ruling would not support a meritorious argument for reversal, and concluding that an appeal in this case would be wholly without merit. The clerk of our court sent copies of the pertinent briefs and motions to withdraw to Stephany and Daniel, informing them of their right to file pro se points for reversal pursuant to Rule 6-9(i)(3) of the Rules of the Arkansas Supreme Court and Court of Appeals. Neither one filed points. We affirm the orders terminating the parental rights of Stephany and Daniel, and we grant their attorneys' motions to be relieved as counsel.

         A petition for ex parte emergency custody was filed on July 2, 2015. The supporting affidavit explained that the Arkansas Department of Human Services (DHS) had earlier received a report of inadequate supervision in May 2015 based on Stephany's positive test results for opiates and morphine and her child, D.B., being in the hospital because of severe morphine withdrawal. The hospital also reported concerns about the parents not visiting the child, which continued, and when the parents did visit, they exhibited "sporadic behavior, " raising concerns of drug use. When the family-service worker tried to contact Stephany and Daniel at Daniel's parents' house (where Stephany and Daniel were living), the grandparents expressed concern of renewed drug use. On June 30, 2015, DHS exercised a seventy-two-hour hold on the two children. A.B. was placed in a foster home, and D.B. remained in the hospital. The affidavit also noted a history of unsubstantiated findings concerning this family.

         On July 8, 2015, the trial court entered its probable-cause order based on the parties' stipulations and ordered services, noting that DHS had not made reasonable efforts to prevent removal of the children. On August 7, 2015, the paternal grandparents filed a motion to intervene, asserting that their son, Daniel, had never been married to Stephany, but that he had acknowledged paternity through the Putative Father Registry. They further stated A.B. had been under their physical care since her birth and sought appointment as guardians of both children. The trial court denied the motion on August 27, 2015, explaining that all of the requested relief could be accomplished without granting intervenor status.

         The adjudication order was entered on September 2, 2015, with the parents stipulating to dependency-neglect based on parental unfitness due to drug use and the trial court finding the same. The trial court found that DHS had made reasonable efforts and set reunification as the goal of the case.

         On October 21, 2015, the trial court entered an order relieving the court-appointed counsel for Stephany, finding the parents were "playing games" and not providing complete financial information as ordered.

         On December 9, 2015, the trial court entered a review order, finding the parents were not in compliance, setting concurrent goals of reunification and adoption, suspending Daniel's visitation, and finding that, "[b]ased on the information in the psychological evaluation, [Daniel's] parents are not considered for placement, nor are his aunt and uncle." A contempt order against Daniel was also entered on December 9, 2015, arising from events that took place during the review hearing when Daniel "was given a chance to settle down - he did not, but escalated & became hostile & disruptive to the Court." He was ordered to spend three days in jail.

         On June 1, 2016, the trial court entered a permanency-planning order. The trial court found Stephany was "barely" in compliance and Daniel was not in compliance. The goal of the case was changed to termination and adoption.

         On July 19, 2016, DHS filed a petition for termination of parental rights. In an August 1, 2016 status-report order, the trial court noted DHS had not been able to obtain personal service on the parents and "preliminarily appointed" counsel for each parent. Following the termination hearing, the trial court entered its termination order on October 21, 2016, and specifically noted Stephany and Daniel were present at the hearing with counsel and no service issues were raised. The order also found the Indian Child Welfare Act (ICWA) did not apply because the father's application, completed two days before the hearing, was not adequate; the three alleged statutory grounds for termination had been proved ((1) twelve months/failure to remedy, (2) subsequent factors, and (3) aggravated circumstances); and it was in the children's best interests to terminate, finding they were adoptable and that continuing contact with either parent "would result in harm to the children." The parents' separate notices of appeal followed.

         We review cases terminating parental rights de novo. Ford v. Arkansas Dep't of Human Servs., 2017 Ark.App. 211. At least one statutory ground for termination must be proved by clear and convincing evidence, and in addition, it must be established that it is in the children's best interest to terminate parental rights. Id. 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. Id. Our inquiry 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 ...

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