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Denen v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

September 20, 2017

JENNIFER DENEN APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-16-346] HONORABLE TOM COOPER, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          MIKE MURPHY, JUDGE

         Appellant Jennifer Denen appeals from the termination of her parental rights to her two children, M.F. and R.R. 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), Denen'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 she should be relieved as counsel. A copy of counsel's brief and motion was mailed to Denen, and after being informed of her right to file pro se points, Denen declined to file any points. We affirm the trial court's order and grant 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. Brown v. Ark. Dep't of Human Servs., 2017 Ark.App. 303, 521 S.W.3d 183. The appellate inquiry 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 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. Id.

         On August 17, 2016, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect concerning M.F. (d.o.b. 6-26-12) and R.R. (d.o.b. 9-22-15). The accompanying affidavit provided that DHS had received a hotline report that M.F. had been observed displaying inappropriate sexual and aggressive behaviors indicative of possible sexual and physical abuse. DHS scheduled interviews for the children at the Child Advocacy Center. One of M.F.'s half-siblings (whose custody is not at issue in this appeal) was interviewed, and he disclosed that M.F. was called an "idiot all the time" and "whooped regularly with a stick on the buttocks and back." R.R.'s physical examination showed a "horrible rash on her vagina and buttocks, " an "extremely filthy" genital area, and a diaper area with "dried feces, trash, and excessive discharge."

         M.F. disclosed that she had been spanked by Denen and R.R.'s putative father, Clarence Reed. She said that at times she would not be fed at home, even though her siblings were eating. At the time of the interview, she had a black eye, scars on her wrist, and "severe bruising covering her buttocks and down her leg." When a police officer asked M.F. her name, she responded "Idiot." The affidavit also detailed that Reed admitted zip-tying M.F.'s hands, which caused the bruising, and calling her an idiot. Denen acknowledged to the police that she knew Reed had been abusing M.F. but had not stopped him. DHS exercised an emergency hold on the children, and the trial court entered two separate ex parte orders, one granting custody to DHS for M.F. and R.R., and the other placing Denen's four other children (half-siblings to M.F. and R.R.) in their father's sole custody and suspending Denen's visits with those children.

         A probable-cause hearing was held on August 24, 2016, and continued M.F. and R.R. in DHS's custody. An adjudication hearing was held one month later, and the court found by clear and convincing evidence that M.F. and R.R. had suffered from physical abuse and neglect and had also been subjected to aggravated circumstances based on chronic abuse and extreme cruelty. The goal of the case was set for adoption. The adjudication order was not appealed. DHS then filed a petition to terminate Denen's parental rights.

         At the termination hearing, DHS first called Judy Jenson, the investigator assigned to the case. She testified to the details and allegations in the affidavit. Jenson said that she concluded her investigation with a finding that Denen and Reed had subjected a child to "Threat of Harm, Failure to Protect, Striking a Child on the Face or the Head, Cuts, Bruises or Welts, Failure to Thrive, Inadequate Food, [and] Tying and Restraining a Child."

         A DHS caseworker testified that Denen was facing criminal charges based on the reasons the children entered foster care. The caseworker further opined that termination was in the children's best interest because the children would be at risk of suffering the same abuse and neglect if returned to the mother.

         DHS also put on a counselor from the Child Advocacy Center who provided therapy to M.F. The counselor, Karen Wright, testified that M.F. suffered from PTSD and would require therapy for quite some time to recover. During therapy, M.F. had disclosed to Wright that her mom would tie her up and hit her with a plastic bat, and Wright found the disclosure to be very credible. Finally, DHS put on an adoption specialist who believed both children are adoptable based on their characteristics.

         Denen testified that she was willing to comply with the case plan. She said she had not attempted to contact her children because there was a no-contact order in place, and she did not have a way to contact her caseworker from prison. She testified she was incarcerated because she had been charged with first-degree domestic battery, permitting child abuse, and first-degree endangering the welfare of a minor child. She also informed the court of some of the services she had completed while in prison.

         On January 18, 2017, the trial court entered an order terminating Denen's parental rights as to M.F. and R.R. 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 Denen'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 three statutory grounds under subsection (b)(3)(B).

         In the no-merit brief, Denen's counsel correctly asserts that there can be no meritorious challenge to the sufficiency of the evidence supporting termination of Denen's parental rights. Although the trial court found three grounds for termination, only one ground is necessary to support the termination. See Draper v. Ark. Dep't of Human Servs., 2012 Ark.App. 112, 389 S.W.3d 58. In both the adjudication order and the termination order, the trial court found under Arkansas Code Annotated section ...


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