FROM THE UNION COUNTY CIRCUIT COURT [NO. 70JV-16-192]
HONORABLE EDWIN KEATON, JUDGE
Bowers Lee, Arkansas Public Defender Commission, for
Crystal Butler appeals the March 13, 2017 order of the Union
County Circuit Court terminating her parental rights to her
nine-month-old twin girls, N.W.1 and N.W.2. 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), Butler's
counsel has filed a no-merit brief and a motion to withdraw
alleging that there are no meritorious grounds for appeal.
The clerk of this court sent a certified packet to Butler
notifying her of her right to file pro se points; Butler has
filed no points. After a full examination under the proper
standards, we hold that counsel provided a compliant no-merit
brief demonstrating that an appeal would be wholly without
merit and that counsel's motion to be relieved should be
Butler was incarcerated in the Arkansas Department of
Correction serving a five-year sentence for domestic battery
when she gave birth to twin girls on July 26, 2016.
Arkansas Department of Human Services (DHS) took emergency
custody of the children. At the time of removal, five of
Butler's other children were already in foster care. An
ex parte emergency-custody order was entered on August 8,
2016, and an agreed probable cause order was entered on
August 15, 2016. Butler's parental rights to the five
children in foster care were also terminated on August 15,
2016. An adjudication hearing regarding the twins was held on
October 3, 2016, and an order followed. In the adjudication
order, the court found the children to be dependent-neglected
and at a substantial risk of harm due to their mother's
incarceration and the fact that she had lost custody to her
other children. The concurrent goals of adoption, relative
placement, and reunification were set.
filed a petition to terminate Butler's parental rights on
December 5, 2016, and a hearing was held on February 6, 2017.
At the hearing, the court heard testimony first from Carolyn
Samuel, the DHS caseworker assigned to the case. She
testified about the circumstances surrounding the involuntary
termination of Butler's rights to her other children. She
explained that, in the prior case, Butler had repeatedly
reported that she would be released from prison soon, but
that was never the case. She further testified that, even if
Butler were released soon, the children would still be at
risk for potential harm because Butler has no home or income.
She stated that the children were adoptable, and a family had
been identified for the children.
next testified that she was serving a five-year sentence in
the Arkansas Department of Correction, and she did not know
when she would be released. She admitted that the sentence
she was serving was from her guilty plea to a charge of
second-degree domestic battery of one of her other children.
She said that whenever she is released, she has a place at
Hope House, a transitional-living home, and that she did not
believe it was in her twins' best interest for her
parental rights to be terminated.
closing arguments, the court announced from the bench that it
was granting DHS's petition to terminate Butler's
parental rights. The corresponding order provided that DHS
had proved by clear and convincing evidence that Butler had
subjected the children to aggravated circumstances in that
there was little likelihood that the services to the family
would result in successful reunification given Butler's
lengthy history with DHS and the services previously provided
and that her parental rights had been terminated to siblings
of these children. The trial court found that termination was
in the best interest of the twins, considering the likelihood
of adoptability and potential harm of returning them to their
mother. Butler now appeals.
cases are reviewed de novo on appeal. Woodward v. Ark.
Dep't of Human Servs., 2017 Ark.App. 91, 513 S.W.3d
284. Termination of parental rights is an extreme remedy and
in derogation of the natural rights of parents. Id.
DHS must prove by clear and convincing evidence that it is in
the juvenile's best interest to terminate parental
rights, as well as the existence of at least one statutory
ground for termination. Everett v. Ark. Dep't of
Human Servs., 2016 Ark.App. 541, 506 S.W.3d 287. Clear
and convincing evidence is that degree of proof that will
produce a firm conviction in the finder of fact regarding the
allegation sought to be established; the question that must
be answered on appeal, when the burden of proving a disputed
fact in equity is by clear and convincing evidence, 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 appellate
court, on the entire evidence, is left with a definite and
firm conviction that a mistake has been made.
Woodward, supra. However, a high degree of
deference is given to the trial court, as it is in a far
superior position to observe the parties before it and judge
the credibility of the witnesses. Dinkins v. Ark.
Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286
determining the best interest of the juvenile, a trial court
must take into consideration (1) the likelihood that the
juvenile will be adopted if the termination petition is
granted; and (2) the potential harm, specifically addressing
the effect on the health and safety of the child, caused by
returning the child to the custody of the parent. Myers
v. Ark. Dep't of Human Servs., 2011 Ark. 182, 380
S.W.3d 906. Potential harm must be viewed in a
forward-looking manner and in broad terms. Dowdy v. Ark.
Dep't of Human Servs., 2009 Ark.App. 180, 314 S.W.3d
722. The trial court is not required to find that actual harm
would result or to identify a potential harm. Lee v. Ark.
Dep't of Human Servs., 102 Ark.App. 337, 285 S.W.3d
grounds to terminate parental rights, the strongest ground
relied on by the trial court was the ground that Butler had
had her rights involuntarily terminated to the twins'
siblings pursuant to Arkansas Code Annotated section
9-27-341(b)(3)(B)(ix)(a)(4) (Repl. 2015). Only one
ground is necessary for termination to occur. Draper v.
Ark. Dep't of Human Servs., 2012 Ark.App. 112, at
15, 389 S.W.3d 58, 66. DHS introduced into evidence, without
objection, the order terminating Butler's rights to the
twins' five siblings. We affirmed that order in
Butler v. Arkansas Department of Human Services,
2017 Ark.App. 202. Accordingly, termination was warranted
under this ground, and any challenge to this finding would be
best interest, there was uncontroverted evidence from the
caseworker that the twins were adoptable, and there was
already a placement meeting with an adoptive family scheduled
to take place pending the outcome of the termination hearing.
The court also considered the potential harm of returning the
children to Butler's custody. In its order, the court
discussed Butler's history of abuse and her current
incarceration. It found that there would be a risk of abuse
to the twins if returned to Butler. Furthermore, the fact
that Butler is currently incarcerated with no concrete idea
on when she might get out makes ...