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Barnes v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

October 18, 2017

ELIZABETH S. BARNES APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT [NO. 32JV15-116] HONORABLE LEE WISDOM HARROD, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

          BART F. VIRDEN, JUDGE.

         In this no-merit appeal, the Independence County Circuit Court entered an order terminating appellant Elizabeth Barnes's parental rights to her son, O.B. (born 07/16/09), on March 3, 2017. Appellant filed a notice of appeal on March 30, 2017. 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 to support 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).

         O.B. was taken into protective custody by the Arkansas Department of Human Services (Department) on September 23, 2015, due to concerns about drug use by his legal guardian and uncle (Timothy Barnes) and O.B.'s mother. There were also allegations of physical abuse of O.B. The affidavit set forth that the family had previous contact with the Department that year for unsubstantiated allegations of environmental neglect and suspicion of drug abuse.

         A petition for emergency custody and dependency-neglect was filed and granted on September 9, 2015. The trial court found there was probable cause to believe that O.B. was dependent-neglected, and it would be contrary to his welfare to return him to his parent. An order was entered on September 29, 2015, in which the court found that there was probable cause that the emergency conditions-Timothy's and Elizabeth's use of methamphetamine-necessitated the removal of O.B. from their custody.

         An adjudication order finding O.B. dependent-neglected was filed on November 9, 2015, and the goal of the case was reunification. Elizabeth was ordered to be truthful and cooperative with the Department and the attorney ad litem, to follow the case plan, to provide documentation of compliance with the case plan two weeks before any hearing, to establish a safe and stable home, to keep medications locked away, to maintain stable employment and income, to maintain sobriety, to keep all appointments, to view the video "The Clock is Ticking, " to complete parenting classes and demonstrate the ability to parent her child, to correct all issues that caused removal, to submit to random drug screens, to submit to a drug-and-alcohol assessment, to keep the Department informed of her current address and contact information, to participate in any counseling recommended after evaluation, and to provide addresses of any family members who might be placement resources. Elizabeth was advised that a missed drug test would count as a positive result.

         In the March 17, 2016 review order, the trial court found that Elizabeth was minimally compliant with the case plan and that the Department had made reasonable efforts to provide services to the family. At the time of the hearing, the trial court found that Elizabeth had moved to Missouri, that no drug screens had occurred since she had moved, and that she had been incarcerated for 120 days while ...


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