FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO.
60JV-17-620] HONORABLE WILEY A. BRANTON, JR., JUDGE
Lanford, Arkansas Public Defender Commission, for appellant.
PHILLIP T. WHITEAKER, JUDGE
Clint Kloss, appeals a Pulaski County Circuit Court order
terminating his parental rights to daughters, K.K.1 and
K.K.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) (2018), Kloss's
counsel has filed a motion to be relieved as counsel and a
no-merit brief asserting that there are no issues of arguable
merit to support an appeal. The clerk of our court sent
copies of the brief and the motion to withdraw to Kloss,
informing him of his right to file pro se points for reversal
pursuant to Rule 6-9(i)(3); however, he has filed no points.
brief contains an abstract and addendum of the proceedings
below, states that the only ruling adverse to Kloss was the
termination itself and asserts that there was sufficient
evidence to support the termination. See
Linker-Flores, supra; Ark. Sup. Ct. R. 6-9(i).
Because counsel's brief does not adequately address all
of the adverse rulings, we deny the motion to withdraw at
this time and order rebriefing.
Sinkey and Clint Kloss are the unmarried biological parents
of K.K.1 and K.K.2. In May 2017, Kloss and Sinkey were living
together with the children when the Pulaski County
Sheriff's Office executed a search warrant on their home.
During the execution of the warrant, the officers found
marijuana, hydrocodone, and methamphetamine within reach of
four-year-old K.K.1 and two-year-old K.K.2. The home was
infested with roaches, and the children were dirty and
covered in bug bites. Kloss and Sinkey were arrested on two
counts of endangering the welfare of a minor, maintaining a
drug premises (enhanced), possession of paraphernalia,
possession of a Schedule II substance, and felony theft by
receiving. Following his arrest, Kloss overdosed in the back
of the police vehicle and had to be rushed to the emergency
room. Based on the arrests of Kloss and Sinkey, as well as
the condition of the home and the children, the Arkansas
Department of Human Services (DHS) exercised a
seventy-two-hour hold on the children.
children were adjudicated dependent-neglected in July 2017.
The trial court found that the juveniles were
dependent-neglected due to parental unfitness. The court
specifically found that the children were living in a drug
premises, that the home was the subject of a drug raid, that
the children were exposed to toxic illegal drugs, and that
the evidence constituted environmental neglect. Based on the
extreme and multiple risks of harm, the court made a finding
by clear and convincing evidence that Sinkey and Kloss had
subjected the children to aggravated
circumstances. Kloss did not appeal the adjudication
order or the court's finding of aggravated circumstances.
It is important to note that at the time of the adjudication
hearing, Kloss had not yet been declared the father of the
children; Kloss's status as a parent was not established
until the permanency-planning hearing on March 27, 2018.
Thus, as of the date of adjudication and the court's
aggravated-circumstances finding, Kloss had attained the
status of only a putative father.
2018, DHS filed a petition to terminate the parental rights
of Sinkey and Kloss. As to Kloss, DHS alleged the following
three grounds for termination: (1) the failure-to-remedy
ground as it applies to a noncustodial parent, Ark. Code Ann.
§ 9-27-341(b)(3)(B)(i)(b) (Supp. 2017); (2) the
subsequent-other-factors-or-issues ground, Ark. Code Ann.
§ 9-27-341(b)(3)(B)(vii)(a); and (3) the
aggravated-circumstances ground, Ark. Code Ann. §
trial court terminated Kloss's parental rights based on
all three grounds alleged in the petition. Regarding the
failure-to-remedy ground, the trial court found that the
children had been out of the Kloss's home (the
noncustodial parent) for over a year and that he had failed
to remedy the conditions preventing
reunification. As to the subsequent-other-factors ground,
the court found that it had made an aggravated-circumstances
finding at adjudication and could have fast tracked the case
and proceeded immediately to termination; it did not do so,
giving the parents an opportunity to achieve reunification by
receiving and benefiting from services. Despite this
opportunity, a year later, the parents had still not
corrected or fixed the problems which caused removal. As for
the aggravated-circumstances ground, the court found that
there was little likelihood that services to the family would
result in successful reunification within a reasonable period
of time as measured from the children's perspectives and
consistent with their developmental needs. The court then
found that termination was in the best interest of the
children, considering potential harm and adoptability.
states in her no-merit brief that any argument challenging
either the statutory grounds for termination or the circuit
court's "best interest" findings would be
wholly frivolous. More specifically, she claims that
challenging the grounds for termination would be wholly
frivolous because the trial court had made an
aggravated-circumstances finding at adjudication; Kloss had
not appealed that finding; and as a result, he was precluded
from challenging the aggravated-circumstances finding at
termination. See Hannah v. Ark. Dep't of Human
Servs., 2013 Ark.App. 502; see also Dowdy v. Ark.
Dep't of Human Servs., 2009 Ark.App. 180, 314 S.W.3d
722. Counsel argues that because only one ground of section
9-27-341(b)(3)(B) need be proved to support termination and
Kloss is precluded from challenging the
aggravated-circumstances ground, there can be no meritorious
argument for challenging the statutory-grounds findings of
the court. See Draper v. Ark. Dep't of Human
Servs., 2012 Ark. App, 112, 389 S.W.3d 58. As a result,
counsel does not present any additional argument addressing
the sufficiency of the remaining statutory grounds pertaining
to failure to remedy or subsequent other factors.
to Linker-Flores, our rules were created to ensure
that someone who is advocating on behalf of the appellant has
reviewed the record and considered all the arguments that
could be made in the client's favor before a no-merit
brief is submitted. Counsel has a duty to address all adverse
rulings and to explain why each ruling is not a meritorious
ground for reversal. Ark. Sup. Ct. R. 6-9(i)(1)(A).
counsel's no-merit argument, as it applies to the
court's finding of statutory grounds, is problematic.
First, it does not appear that the trial court based its
aggravated-circumstances finding at termination on its
previous ruling at adjudication. Instead, it appears that the
trial court made an entirely new finding predicated on its
determination that there was little likelihood of successful
reunification. Counsel has not addressed why challenging the
aggravated-circumstances finding based on little likelihood
of successful reunification is without merit. Second,
counsel's argument that there is no merit to challenging
the aggravated-circumstances ground because Kloss failed to
appeal this finding from adjudication is based on a
conclusion that the aggravated-circumstance finding at
adjudication applied to Kloss. As noted earlier, Kloss was
only a putative father at adjudication. He was not found to
be a "parent" at the time the
aggravated-circumstances finding was made during
adjudication. By definition, a finding of aggravated
circumstances applies only to a "parent." Ark. Code
Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A). Counsel
has not addressed why challenging the
aggravated-circumstances finding based on Kloss's
putative-father status at adjudication is without merit.
Counsel's failure to address these deficiencies is
further compounded by a failure to address the alternative
statutory grounds found by the court, thereby leaving us with
a brief that has not adequately addressed all of the adverse
there is one additional adverse ruling that has not been
addressed by counsel. At the close of the testimony, counsel
asked the trial court to allow Kloss more time-three
additional months-to obtain reunification; the trial court