APPEAL
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. 47BJV-16-169] HONORABLE RALPH WILSON, JR.,
JUDGE
Leah
Lanford, Arkansas Public Defender Commission, for appellant.
One
brief only.
BART
F. VIRDEN, JUDGE
Appellant
Trachica Newmy appeals from the Mississippi County Circuit
Court's termination of her parental rights to A.N.1 (DOB:
1-16-2010) and A.N.2 (DOB: 4-2-2015). Her counsel has 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), alleging that Newmy has
no meritorious basis for an appeal. Newmy was provided with a
copy of counsel's no-merit brief and motion to withdraw
and was notified of her right to file pro se points for
reversal. Newmy has not filed any points. We affirm the
termination of parental rights and grant counsel's motion
to withdraw.
I.
Procedural History
On
October 26, 2016, the Arkansas Department of Human Services
(DHS) filed a petition for emergency custody and
dependency-neglect with respect to Newmy's children.
Attached to the petition was an affidavit in which a
family-service worker for DHS attested that a call was made
to the child-abuse hotline on October 22, 2016, reporting
that then nineteen-month-old A.N.2 had been flown to Le
Bonheur Children's Hospital in Memphis after he had
sustained a first-degree burn on his thigh. When workers went
to Newmy's home to investigate, Newmy was incoherent and
smelled of alcohol. She refused a drug test but admitted
drinking alcohol and smoking crack cocaine. A
seventy-two-hour hold was placed on the children.
On
October 27, 2016, the trial court entered an ex parte order
for emergency custody and subsequently found probable cause
to believe that the emergency conditions that necessitated
the children's removal from Newmy's custody continued
to exist. On January 26, 2017, A.N.1 and A.N.2 were
adjudicated dependent-neglected in that they had been
subjected to inadequate supervision due to Newmy's drug
use. Newmy was ordered to comply with standard welfare orders
and to submit to a drug-and-alcohol assessment and follow the
recommendations.
In a
review order entered May 24, 2017, the trial court found that
Newmy had complied with the case plan and court orders.
Another review order was entered August 17, 2017, and the
trial court found that Newmy had complied except she
had not remained drug free; she had not kept DHS informed;
and she had not successfully completed drug treatment. She
was ordered to attend and complete inpatient drug treatment
and to obtain mental-health counseling and treatment as
recommended. A permanency-planning order was entered on
October 19, 2017, in which the trial court found that Newmy
had complied except she had not obtained and
maintained stable housing and income; she had not
successfully completed drug treatment; and she had not been
able to maintain her sobriety. The trial court further
ordered Newmy to live separate and apart from Tony Newmy and
Melvin Sharkey after having completed drug
treatment.[1]
On
February 28, 2018, DHS filed a petition to terminate
Newmy's parental rights on the following grounds set
forth in Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp.
2017): (i)(a) (twelve-month failure to remedy);
(vii)(a) (subsequent factors or issues); and
(ix)(a)(3)(i) (aggravated circumstances: little
likelihood that services will result in successful
reunification).
II.
Standard of Review
We
review termination-of-parental-rights cases de novo. Hall
v. Ark. Dep't of Human Servs., 2018 Ark.App. 4. An
order forever terminating parental rights must be based on a
finding by clear and convincing evidence that termination is
in the children's best interest. Ark. Code Ann. §
9-27-341(b)(3)(A). The trial court must consider the
likelihood that the children will be adopted if the
parent's rights are terminated and the potential harm
that could be caused if the children are returned to a
parent. Id. The trial court must also find by clear
and convincing evidence one or more grounds for termination.
Id. When the burden of proving a disputed fact is by
clear and convincing evidence, the appellate inquiry is
whether the trial court's finding is clearly erroneous.
McGaugh v. Ark. Dep't of Human Servs., 2016
Ark.App. 485, 505 S.W.3d 227. 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
resolving the clearly erroneous question, we defer to the
trial court because of its superior opportunity to observe
the parties and judge the credibility of witnesses.
Id.
III.
No-Merit Petitions
Arkansas
Supreme Court Rule 6-9(i) permits counsel for an appellant in
a termination-of-parental-rights case to file a no-merit
petition and motion to withdraw if, after studying the record
and researching the law, counsel determines that the
appellant has no meritorious basis for appeal. Ark. Sup. Ct.
R. 6-9(i)(1). The petition must include an argument section
that lists all adverse rulings to the appellant made by the
trial court on all objections, motions, and requests made by
the party at the ...