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Bailey v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

November 14, 2018



          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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


         Cynthia Bailey appeals the Pulaski County Circuit Court's termination of her parental rights to her two children, a daughter, SB, born July 21, 2013, and a son, KW, born December 15, 2016.[1] 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), her counsel has filed a no-merit brief purporting to set forth all adverse rulings from the termination hearing and asserting there are no issues that would support a meritorious appeal. Her counsel has also filed a motion asking to be allowed to withdraw as counsel. The clerk of this court notified Bailey of her right to file pro se points of appeal, which she has done. We affirm the termination of Bailey's parental rights and grant her counsel's motion to withdraw.

         Standard of Review

         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 children. Griffin v. Arkansas Dep't of Human Servs., 2017 Ark.App. 635. The first step requires proof of one or more statutory grounds for termination; the second step requires that termination be in the children's best interest. Id. 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. Id.

         We review termination-of-parental-rights cases de novo, but we will not reverse the circuit court's ruling unless its findings are clearly erroneous. Gonzalez v. Arkansas Dep't of Human Servs., 2018 Ark.App. 425, 555 S.W.3d 915. 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. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the circuit court's personal observations. Id.

         Case History

         Bailey was pulled over in the early morning hours of July 11, 2016, for driving with no headlights. She gave the officers a false name; she could not provide vehicle registration or insurance; and the officers observed SB unrestrained in the back seat of the vehicle. Bailey became combative when the officers attempted to take her into custody, running into traffic with SB and using the child as a shield. Bailey was arrested and charged with second-degree endangering the welfare of a minor, obstruction, driving without headlights, and DWI. She stated she was four months pregnant, and while she asserted she was drug free, a drug screen revealed PCP in her system. Bailey refused to give officers any information about SB or relatives who could take care of SB; therefore, SB was placed in the custody of the Arkansas Department of Human Services (DHS).

         DHS filed a petition for emergency custody and dependency-neglect on July 13, 2016, and an order granting custody to DHS was entered the same day. Bailey stipulated to probable cause, and a probable-cause order was entered on July 20, 2016. SB was adjudicated dependent-neglected in an order entered on August 30, 2016, due to Bailey's neglect and parental unfitness. Concurrent goals of the case were reunification with Bailey or a permanent custodian, including permanent custody with a fit and willing relative. In a review order entered on December 14, 2016, it was noted SB was doing well in a provisional foster home with her maternal cousin; the concurrent goals of the case remained reunification with Bailey or obtaining a permanent custodian. The review order noted Bailey was partially compliant with the case plan and court orders-although she had completed parenting classes and was appropriate overall with SB during visitation, she was not cooperative with DHS at times, had missed several visitations, and even though currently pregnant, continued to test positive for illegal substances, specifically PCP and cocaine.

         Bailey gave birth to KW in December 2016. KW was removed from Bailey's custody because both KW and Bailey tested positive for PCP at the time of his birth. A petition for emergency custody of KW and an order granting emergency custody to DHS were filed on December 19, 2016. Bailey stipulated to probable cause due to the positive tests for PCP, and a probable-cause order was entered on December 22, 2016. In an order entered on February 3, 2017, KW was adjudicated dependent-neglected based on Bailey's stipulation of neglect and parental unfitness, specifically that she tested positive for PCP at KW's birth; the circuit court also ordered SB's and KW's cases to be consolidated.

         In a review order entered on March 30, 2017, the circuit court continued custody of SB and KW with DHS, finding Bailey had partially complied with the case plan and court orders. The circuit court noted Bailey had been admitted to two inpatient substance-abuse-treatment centers, but she had completed only two weeks of treatment at one treatment center, had tested positive for PCP and cocaine immediately before entering the second treatment center, and was involuntarily discharged from the second treatment center due to disputes with other residents. Though Bailey had missed several visitations with her ...

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