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Mercado v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

October 4, 2017

FRANCESCA MERCADO APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-16-284] HONORABLE JIM D. SPEARS, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          RITA W. GRUBER, Chief Judge

         Counsel for Francesca Mercado brings this no-merit appeal from the circuit court's December 28, 2016 order terminating Mercado's parental rights to A.M., who was born on February 27, 2016. 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), counsel has filed a no-merit brief setting forth all adverse rulings from the termination hearing and asserting that there are no issues that would support a meritorious appeal. Counsel has also filed a motion asking to be relieved. Mercado has filed pro se points. The Arkansas Department of Human Services (DHS) and the minor child's counsel have responded to those pro se points. We grant counsel's motion to withdraw and affirm the termination order.

         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, at 2, 491 S.W.3d 153, 155. The first step requires proof of one or more statutory grounds for termination; the second step requires consideration of whether termination is in the juvenile's best interest. Ark. Code Ann. § 9-27-341(b)(3)(B), (A) (Repl. 2015). Each of these requires proof by clear and convincing evidence, which is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id.

         We review termination-of-parental-rights cases de novo. Norton v. Ark. Dep't of Human Servs., 2017 Ark.App. 285, at 2. Our inquiry is whether the circuit 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. Houseman, supra. In resolving the clearly erroneous question, the reviewing court defers to the circuit court's superior opportunity to observe the parties and to judge the witnesses' credibility. Brumley v. Ark. Dep't of Human Servs., 2015 Ark. 356, at 7.

         In Mercado v. Arkansas Department of Human Services, 2017 Ark.App. 232, 519 S.W.3d 715 (Mercado I), we recounted earlier proceedings in this case:

On June 17, 2016, the Arkansas Department of Human Services (DHS) exercised a 72-hour hold on three-month-old A.M. after a medical examination at Arkansas Children's Hospital revealed bone fractures, head trauma, brain damage, and a subdural hematoma. A probable-cause order was entered on August 17, 2016, continuing custody of A.M. with DHS. The court held a hearing on September 12, 2016, after DHS filed a motion to terminate reunification services. Dr. Karen Farst, a specialist in child-abuse pediatrics who examined A.M. at Children's, testified at the hearing that A.M.'s head injury was a "near fatality" and that her injuries were "indicative of physical abuse." Following the hearing, the circuit court adjudicated A.M. dependent-neglected with the stated goal of adoption, and granted DHSs' motion to terminate reunification services. The court entered a separate order denying appellant's petition for a second medical-expert opinion. The court attached Rule 54(b) certificates to both orders.

Mercado I, 2017 Ark.App. 232, at 1-2, 519 S.W.3d at 715-16. Mercado filed her notice of appeal in Mercado I from the circuit court's orders adjudicating A.M. dependent-neglected, relieving DHS from providing reunification services, and denying Mercado's petition for a second medical-expert opinion. However, her sole point on appeal was that the circuit court erred in denying her petition for a separate medical expert. We affirmed. Id. at 3, 519 S.W.3d at 717.

         In the order terminating Mercado's parental rights, the circuit court found that the State had proved two statutory grounds. The first ground states, as relevant to the present case:

(vi) The court has found the juvenile . . . dependent-neglected as a result of neglect or abuse that could endanger the life of the child, . . . which was perpetrated by the juvenile's parent or parents or stepparent or stepparents.
. . . .
(b) Such findings by the juvenile division of circuit court shall constitute grounds for immediate termination of the parental rights of one (1) or both of the parents;

Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a) & (b). Under the second ground, a court of competent jurisdiction has found the parent to have subjected any juvenile to aggravated circumstances. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix) (Repl. 2015). "Aggravated circumstances" means, in relevant part, that a juvenile has been "chronically abused, subjected to extreme or repeated cruelty"; or that a determination has been made by a judge that "there is little likelihood that services to the family will ...


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