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Cotton v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

September 27, 2017

TAMMY COTTON APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. 42JV-15-17] HONORABLE TERRY SULLIVAN, JUDGE

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          BART F. VIRDEN, JUDGE

         In this no-merit appeal, the Logan County Circuit Court terminated appellant Tammy Cotton's parental rights to her daughter, B.C., on November 28, 2016. Appellant filed a notice of appeal the same day. Counsel for appellant filed a motion to withdraw as counsel on appeal and a no-merit brief 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), asserting that, other than the termination order itself, which is fully addressed in the brief, there were no adverse rulings to appellant and explaining why there are no nonfrivolous arguments to support an appeal. After being served by certified mail with the motion to withdraw and a copy of the no-merit brief, appellant did not file pro se points for reversal. We affirm the order terminating appellant's parental rights and grant counsel's motion to withdraw.

         In Linker-Flores, the Arkansas Supreme Court described the procedure for withdrawing as counsel from a termination-of-parental-rights appeal:

[A]ppointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel's petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent party must be provided with a copy of the brief and notified of her right to file points for reversal within thirty days. If this court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel's motion and dismiss the appeal.

Linker-Flores, 359 Ark. at 141, 194 S.W.3d at 747-48.

         Subsequently the supreme court elaborated on the appellate court's role in reviewing a petition to withdraw in a termination-of-parental-rights appeal, holding that when the trial court has taken the prior record into consideration in its decision, a "conscientious review of the record" requires the appellate court to review all pleadings and testimony in the case on the question of the sufficiency of the evidence supporting the decision to terminate and that only adverse rulings arising at the termination hearing need be addressed in the no-merit appeal from the prior orders in the case. Lewis v. Ark. Dep't of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005).

         Termination-of-parental-rights cases are reviewed de novo. Hune v. Ark. Dep't of Human Servs., 2010 Ark.App. 543. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. 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).

         B.C. (12/24/05) was taken into protective custody by the Arkansas Department of Human Services (Department) on September 10, 2015, due to concerns about the health and safety of her and her siblings.[1] The affidavit of family service worker Jennifer Jackson sets forth that Tammy had overdosed on methamphetamine and benzodiazepine and had to be airlifted to Mercy Hospital. After that Tammy was admitted to Valley Behavioral Hospital due to her attempts to commit suicide, and the children were left without a legal caregiver.

         A petition for emergency custody and dependency-neglect was filed and granted on September 14, 2015. The trial court found that there was probable cause to believe that B.C. and her siblings were dependent-neglected, and it would be contrary to their welfare to return them to their parent. A probable-cause order was entered on September 16, 2015, in which the court found that the family had a history with the Department. In the prior cases, the children had been returned to Tammy following her completion of counseling and parenting classes and after having received assistance with transportation and housing. Tammy stipulated to probable cause.

         An adjudication order finding B.C. dependent-neglected was filed on November 4, 2015, and the goal of the case was reunification with a concurrent goal of adoption. Tammy was ordered to submit to random drug screens, watch the video "The Clock is Ticking", complete parenting classes, submit to psychological and drug-and-alcohol evaluations and follow any recommendations, obtain stable housing and employment, attend counseling, submit to homemaker services, cooperate with the Department, and comply with the case plan.

         Following a hearing, the trial court changed the goal of the case to adoption in a review order entered on February 22, 2016. The trial court found that the Department had made reasonable efforts to provide services but that Tammy had failed to obtain housing, failed to maintain transportation, failed to comply with drug-and-alcohol treatment, failed to exercise visitation consistently, and she tested positive for drugs when she did submit to drug screening.

         Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark. Dep't of Human Servs., 2016 Ark.App. 227, 491 S.W.3d. 153. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(b)(3)(B)(Repl. 2015); Houseman, supra. Proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep't of Human Servs., 2010 Ark.App. 240, 374 S.W.3d 205. A trial court is required to consider only potential harm to a child's health and safety that might come from continued contact with the parents; there is no ...


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