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Smith v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

August 29, 2018



          Leah Lanford, Arkansas Public Defender Commission, for appellant Ashley Smith. Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant Archie Coats, Jr.

          Anna Imbeau, Office of Chief Counsel, for appellee.

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

          RAYMOND R. ABRAMSON, Judge.

         Appellants Ashley Smith and Archie Coats, Jr., appeal separately from the termination of their parental rights to their son, P.S., born May 17, 2013. Appellants' respective attorneys have each filed a no-merit brief and motion to withdraw as counsel 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), asserting that there are no issues that would support a meritorious appeal. Counsel's briefs contain an abstract and addendum of the proceedings below, detail all adverse rulings made at the termination hearing, and explain why there is no meritorious ground for reversal. The clerk of this court sent copies of the briefs and motions to withdraw to appellants, informing them of their right to file pro se points for reversal. Neither has done so. We affirm the orders terminating Smith's and Coats's parental rights, and we grant their attorneys' motions to withdraw as counsel.

         P.S. was taken into custody by the Arkansas Department of Human Services (DHS) in January 2016 after he was admitted to Arkansas Children's Hospital with what appeared to be second-degree burns from his waist down to his feet. The circuit court entered an emergency order followed by an order finding that probable cause existed to remove P.S. and to maintain him in DHS custody.

         The adjudication hearing took place on March 30, 2016. At the hearing, Dr. Rachel Clingenpeel, a physician at Arkansas Children's Hospital, testified that P.S. had second-and third-degree burns and that in her opinion, he was forcibly submerged in hot water because the burn patterns presented clean edges around his waist, and his knees and hands were not burned, which demonstrated he was in a retracted seated position when placed into the water. She said that if he had fallen into the water, as Smith indicated, he would have thrashed around and had burns on his knees and hands, as well as splash burns on his body. At the conclusion of the adjudication hearing, the court entered an order finding by clear and convincing evidence-a higher burden than what is required under the Juvenile Code-that P.S. was dependent-neglected due to physical abuse, neglect, and parental unfitness by Smith. The court further found that P.S. was subjected to nonaccidental physical injuries by Smith, that Smith failed to seek appropriate medical treatment for P.S. because she did not want DHS in her life, and that P.S. received treatment only because Smith had summoned emergency help for herself several hours later (when she was having an anxiety attack). The court concluded that these facts constituted extreme cruelty and, thus, aggravated circumstances. Smith did not file an appeal from that order.

         On August 18, 2017, DHS filed a petition for termination of parental rights on the basis of three grounds: failure to remedy, subsequent factors, and aggravated circumstances. The court held a hearing on the petition on September 27, 2017. At the conclusion of the hearing, the circuit court took the case under advisement. On November 3, 2017, the circuit court entered an order granting DHS's petition to terminate appellants' parental rights on all three grounds. The parents' separate notices of appeal followed.

         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, 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)(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 finder of fact a firm conviction regarding the allegation sought to be established. Watson v. Ark. Dep't of Human Servs., 2017 Ark.App. 484, 529 S.W.3d 259.

          We review termination-of-parental-rights cases de novo. Dunbar v. Ark. Dep't of Human Servs., 2016 Ark.App. 472, at 9, 503 S.W.3d 821, 827. The appellate 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. Norton v. Ark. Dep't of Human Servs., 2017 Ark.App. 285, at 2. In resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep't of Human Servs., 2015 Ark. 356, at 7.

         In dependency-neglect cases, if, after studying the record and researching the law, appellant's counsel determines the appellant has no meritorious basis for appeal then counsel may file a no-merit petition and move to withdraw. Poss v. Ark. Dep't of Human Servs., 2014 Ark.App. 514, 443 S.W.3d 594. The petition must include an argument section that lists all adverse rulings the parent received at the circuit court level and explain why each adverse ruling is not a meritorious ground for reversal. Id. The petition must also include an abstract and addendum containing all rulings adverse to the appealing parent that were made during the hearing from which the order on appeal arose. Id. Appellants' respective attorneys have each determined there are no meritorious bases for appeals in this case. We agree.

         I. Ashley Smith

          Smith's counsel explains that other than the termination itself, there technically were no adverse rulings. However, "out of an abundance of caution," counsel addressed two additional rulings that could be considered adverse. The first was the circuit court's denial of P.S.'s placement with the juvenile's grandmother, Ms. Parker, which occurred at a prior hearing but was referenced at the termination hearing. The second was the circuit court's statement that it could draw a negative inference about Smith's culpability with regard to P.S.'s injuries after Smith asserted her Fifth Amendment privileges against ...

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