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Baltimore v. Arkansas Department of Human Services and Minor Children

Court of Appeals of Arkansas, Division III

May 29, 2019

BRITTANY BALTIMORE APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV17-557] HONORABLE WILEY A. BRANTON, JR., JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant.

          One brief only.

          PHILLIP T. WHITEAKER, JUDGE.

         Appellant Brittany Baltimore appeals an order of the Pulaski County Circuit Court terminating her parental rights to her three daughters-twins IB and EB (DOB 02/17/2015) and AW (DOB 06/24/2016).[1] Baltimore's counsel has filed a motion to withdraw from representation and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2003), and Arkansas Supreme Court Rule 6-9(i) (2018), stating that there are no meritorious grounds to support an appeal. The clerk mailed a certified copy of counsel's motion and brief to Baltimore at her last-known address informing her of her right to file pro se points for reversal, but the packet was returned and marked "unclaimed," "unable to forward," and "return to sender." Because there are no issues of arguable merit presented, we affirm and grant counsel's motion to withdraw.[2]

         I. Facts and Procedural History

         Baltimore is the biological mother of IB, EB, and AW. She has an extensive history with the Arkansas Department of Human Services (Department). In 2012, the Department initiated a dependency-neglect proceeding against Baltimore as to two other children due to her drug usage and her continued association with abusive men.[3] The Department removed those children from her custody after their father was arrested in the home for drug possession, and authorities found cocaine in plain sight and in reach of the children. One of the children, a one-year-old, tested positive for cocaine and codeine. In this previous dependency-neglect action, the court found Baltimore unfit, in part, due to her drug usage. In July 2013, the court terminated her parental rights finding that despite being offered services aimed at rehabilitation, Baltimore had failed to address her substance-abuse issues, had failed to visit the children, had failed to comply with the case plan, and had repeatedly lied to the court, prompting the court to suggest she be prosecuted for perjury.

         In this current dependency-neglect action, the Department received a hotline referral in May 2017 after two-year-old IB was treated at Arkansas Children's Hospital (ACH) for a four-day-old fractured femur that had required a surgical repair. Baltimore's explanation as to how the injury occurred was not plausible and did not match the presentation or severity of the child's injuries.[4] Additionally, Baltimore was uncooperative during the initial investigation. While she admitted that IB has a twin, she refused to tell the investigator where the child could be located and denied having a third child. When the Department eventually located the other children, they were placed in protective custody under a seventy-two-hour hold. Subsequent drug testing revealed that IB had tested positive for both cocaine and marijuana and that her one-year-old sister, AW, had tested positive for marijuana.

         After the seventy-two-hour hold, the Department initiated this dependency-neglect action. The court adjudicated the children dependent-neglected in July 2017 due to parental unfitness, inadequate supervision, failure to protect, medical neglect, and injury inconsistent with the history provided. In addition, the court made two separate aggravated-circumstances findings. Considering the severity of the child's injury and Baltimore's significant delay in obtaining treatment for the child, the court found by clear and convincing evidence that one of the children (IB) had been subjected to extreme cruelty through medical neglect. Considering the facts and circumstances of the previous dependency-neglect action and Baltimore's lack of progress therein, the court also found by clear and convincing evidence that there was little likelihood of successful reunification despite a reasonable offer of services. However, despite its finding of aggravated circumstances, the court did not fast track the case or authorize the filing of a petition for termination of parental rights at that time, instead opting to allow Baltimore the opportunity to attempt reunification.

         Baltimore did not take advantage of the opportunity for reunification. While she participated in services and court proceedings, the court found that she exerted only "some" effort at complying with the case plan, that she had not made any substantive progress, and that she had not addressed the core issues at stake in the case. The court also noted that her testimony with regard to her relationship with Tommy Wright-her abusive boyfriend and the alleged offender in the injury of IB-was not credible.

         The Department subsequently filed a petition for termination of parental rights alleging that termination of Brittany's parental rights was in the best interest of the children; that the children are adoptable; and that potential harm would be caused if the children were returned to Brittany's custody.[5] The petition also alleged the following statutory grounds as to Brittany: twelve-month failure to remedy (Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a)) (Supp. 2017)); subsequent other factors (Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a)); aggravated circumstances-extreme cruelty (Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i)); aggravated circumstances-little likelihood of successful reunification (Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i)); and prior involuntary termination (Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4)). Following a termination hearing, the trial court entered an order terminating Baltimore's parental rights based on all five grounds alleged in the petition and based on the court's best-interest finding, including its consideration of the adoptability of the children and the potential harm if they were returned to Baltimore's care.

         Baltimore filed a timely notice of appeal, and her counsel has filed a no-merit brief. After carefully examining the record and the no-merit brief, we hold that Baltimore's counsel has complied with the requirements for a no-merit parental-termination appeal and that the appeal is wholly without merit for the reasons set forth below.

         II. Standard of Review

         We conduct a de novo review of termination-of-parental-rights cases because the rights of natural parents are not to be passed over lightly, and the termination of parental rights is an extreme remedy in derogation of these natural rights. Fox v. Ark. Dep't of Human Servs., 2014 Ark.App. 666, 448 S.W.3d 735. In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). Additionally, the trial court must find proof, by clear and convincing evidence, of one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep't of Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). In this de novo review process, we will not reverse the trial court's ruling unless its findings are clearly erroneous. Dade v. Ark. Dep't of Human Servs., 2016 Ark.App. 443, 503 S.W.3d 96. A finding is ...


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