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 ...