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Brown v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

May 10, 2017

KHALEELAH BROWN APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, ELEVENTH DIVISION [NO. 60JV-15-720] HONORABLE PATRICIA JAMES, JUDGE

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

          No response.

          KENNETH S. HIXSON, Judge

         Appellant Khaleelah Brown appeals from the termination of her parental rights to her four children A.B., K.B., B.B., and R.B.[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), Khaleelah's counsel has filed a no-merit brief and motion to withdraw, asserting that there are no issues of arguable merit to support an appeal and that he should be relieved as counsel. A copy of Khaleelah's counsel's brief and motion was mailed to Khaleelah, and after being informed of her right to file pro se points, Khaleelah declined to file any points. We affirm and grant appellant'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. Gray v. Ark. Dep't of Human Servs., 2013 Ark.App. 24. 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).

         This case began on May 19, 2015, when appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody of all four children. Attached to the petition were the affidavits of a DHS caseworker and criminal investigator stating that Khaleelah's youngest child, nine-month-old R.B., had been transported by ambulance to the hospital with serious injuries. Upon arriving at the hospital, R.B. had to be revived after he had stopped breathing and was unresponsive. R.B. was diagnosed with a subdural hematoma, a skull fracture, and retinal hemorrhaging consistent with shaken-baby syndrome. R.B. underwent emergency surgery to relieve pressure in his brain, and a blood clot was noted that was subacute, meaning it was 2-3 days old and could not have happened that day. When asked how the injuries occurred, Khaleelah stated that, while the children's father was outside the house and she was using the restroom, R.B. fell out of Khaleelah's bed. R.B.'s doctor determined that R.B.'s injuries were too extensive to have been sustained from falling off a bed. On the same day the petition was filed, the trial court entered an ex parte order for emergency DHS custody of all four children.

         On May 27, 2015, the trial court entered a probable-cause order. In that order, the trial court stated that R.B. was still in the hospital and that the other three children were in foster care. R.B. was on a ventilator, and both parents were suspected of child maltreatment. The father had been jailed for a probation violation, and he would remain in jail during most of these proceedings. In the probable-cause order, the trial court ordered no contact between the children and either parent.

         On July 20, 2015, the trial court entered an adjudication order finding all four children to be dependent-neglected and setting the case goal as reunification. In the adjudication order, the trial court noted that a criminal investigator had attempted to inspect the bed and floor surface where R.B. had allegedly fallen, but that Khaleelah did not allow the inspector in her home. The trial court further noted the testimony of Dr. Maria Esquivel, who testified at the adjudication hearing that R.B. had to be revived twice during surgery and could have died. Dr. Esquivel also testified that R.B.'s injuries were consistent with a vehicle accident, a fall from a significant height, or being shaken. The trial court made the following specific findings in the adjudication order:

[T]he Court finds by clear and convincing evidence that the children were subjected to abuse, parental unfitness, and aggravated circumstances by the mother. Regarding abuse, the Court finds that R.B.'s injuries are at variance with the history given by mother. Based on medical testimony, R.B. suffered nonaccidental physical injury, specifically he is a child aged three or younger who was shaken. Regarding aggravated circumstances, the Court finds by clear and convincing evidence that R.B. was subjected to extreme cruelty, which is also defined as abuse, and this abuse endangered his life. The totality of these circumstances also leads this Court to find parental unfitness, and that the siblings are at risk of harm based on the extreme and cruel abuse to their brother. R.B.'s injuries would have been caused by a fall from a great height or motor vehicle accident, not falling off a bed. Dr. Esquivel testified that the child's injuries are consistent with "shaken baby syndrome." Further, the child had to be resuscitated three times during the time of the EMT arrival and the conclusion of his surgery. The Court finds Dr. Esquivel's testimony to be credible and compelling. Mother identified herself as the only adult [present] at the time the injuries occurred to R.B., based on her own prior statements. The Court finds that the other three children would not be safe in mother's care, based on this Court's findings today.

         On November 4, 2015, the trial court entered a review order stating that Khaleelah had been arrested and charged with first-degree battery committed against R.B. In the criminal case, there was a no-contact order prohibiting any contact between Khaleelah and all her children. On May 2, 2016, the trial court entered a permanency-planning order finding that neither parent had made measurable progress in the case and that Khaleelah was awaiting a jury trial on the criminal charges. In the permanency-planning order, the trial court changed the case goal to termination of parental rights and adoption.

         DHS filed a petition to terminate Khaleelah's parental rights on June 3, 2016. The termination hearing was held on July 27, 2016.

         On August 30, 2016, the trial court entered an order terminating Khaleelah's parental rights as to all four children. The trial court found by clear and convincing evidence that termination of parental rights was in the children's best interest, and the court specifically considered the likelihood of adoption, as well as the potential harm of returning the children to Khaleelah's custody as required by Arkansas Code Annotated section 9-27-341(b)(3)(A). The trial court also found clear and convincing evidence of four statutory grounds under subsection (b)(3)(B). Pursuant to subsection (b)(3)(B)(i)(a), the trial court found that the juveniles had been adjudicated by the court to be dependent-neglected and had continued out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied by the parent. Under subsection (b)(3)(B)(vi)(a), the trial court found R.B. and his siblings dependent-neglected as a result of neglect or abuse that could endanger the life of the child, which was perpetrated by Khaleelah. Under subsection (b)(3)(B)(vii)(a), the trial court found that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of the juveniles in the custody of the parent was contrary to the juveniles' health, safety, or welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity or indifference to remedy those issues or factors, or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. Finally, under subsection (b)(3)(B)(ix)(a)(3)(B)(i), the trial court found that the parent had subjected any juvenile to aggravated circumstances because R.B. had been subjected to extreme cruelty, and also because there was little likelihood that services to the family would result in successful reunification.

         At the termination hearing, Dr. George DeRoeck, a psychologist, testified that he conducted a psychological evaluation of Khaleelah. Based on his examination, Dr. DeRoeck thought that Khaleelah had been under a good deal of stress for a number of years and was woefully inadequately prepared to care for her children, which resulted in the significant injuries to R.B. In his report, Dr. DeRoeck noted that the children's father had in the past been violent toward Khaleelah and the children, and Khaleelah admitted that he would leave ...


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