Baltimore v. Arkansas Department of Human Services

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          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.

         OPINION

         PHILLIP T. WHITEAKER, Judge

          Appellant Brittany Baltimore appeals an order of the Pulaski County Circuit Court terminating her parental rights to

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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 (2004), 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

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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 ...