APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO.
60JV-17-620] HONORABLE WILEY A. BRANTON, JR., JUDGE.
Leah
Lanford, Arkansas Public Defender Commission, for appellant.
One
brief only.
PHILLIP T. WHITEAKER, JUDGE.
Clint
Kloss appeals a Pulaski County Circuit Court order
terminating his parental rights to his daughters, K.K.1 and
K.K.2.[1] 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 no-merit brief asserting that
there are no issues of arguable merit to support an appeal
and an accompanying motion to be relieved as counsel.
Counsel's brief contains an abstract and addendum of the
proceedings below and states that the only rulings adverse to
Kloss were the termination decision and the denial of his
request for additional time to achieve reunification. Counsel
asserts that there was sufficient evidence to support the
termination and that the trial court's denial of
additional time did not constitute reversible error. After
carefully reviewing the record and the no-merit brief, we
conclude that counsel's brief adequately addresses all
the adverse rulings and correctly posits that there are no
issues of arguable merit on which to base an appeal.
As
required by Rule 6-9(i)(3), 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; he has done so. We have reviewed his claims and
hold that they were not raised below; are not preserved for
appeal; or present no meritorious basis for reversal.
Therefore, we affirm.
We
provide the following summary of facts and procedural history
of the case. Sherrie Sinkey and Clint Kloss are the
unmarried, biological parents of K.K.1 and K.K.2. Sinkey and
Kloss were living together with the children in May 2017,
when the Pulaski County Sheriff's office executed a
search warrant on their home. During the execution of the
warrant, the officers found illegal controlled
substances,[2] drug paraphernalia, and stolen property.
As a result, 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.
The Arkansas Department of Human Services (DHS) responded to
take a seventy-two-hour hold on the children. DHS found the
home infested with roaches, and the children were dirty and
covered in bug bites.
In July
2017, the circuit court adjudicated the children
dependent-neglected as a result of parental unfitness, living
in a drug premises, being the subject of a drug raid,
exposure to toxic illegal drugs, and environmental neglect.
The court also found, by clear and convincing evidence, that
both Sinkey and Kloss had subjected the children to
aggravated circumstances based on extreme and multiple risks
of harm.[3] Despite its finding of aggravated
circumstances, the court declined to fast track the case.
Subsequent
to the adjudication, DHS provided services to Kloss, and the
court monitored the services through appropriate review
hearings. Eventually, Kloss was adjudicated the father and
obtained status as a parent at the permanency-planning
hearing on March 27, 2018.
In May
2018, DHS filed a petition to terminate the parental rights
of both Sinkey and Kloss. As to Kloss, DHS alleged three
grounds for termination: (1) failure to remedy as a
noncustodial parent, Ark. Code Ann. §
9-27-341(b)(3)(B)(i)(b); (2) other factors or issues
arising subsequent to adjudication, Ark. Code Ann. §
9-27-341(b)(3)(B)(vii)(a); and (3) aggravated
circumstances, Ark. Code Ann. §
9-27-341(b)(3)(B)(ix)(a)(3)(B)(i). The court held a
hearing on the petition, and ultimately the trial court
terminated Kloss's parental rights based on all three
grounds alleged in the petition. The court then found that
termination was in the best interest of the children,
considering potential harm and adoptability. Kloss appeals
the termination decision.
Pursuant
to Arkansas Code Annotated section 9-27-341(b)(3), an order
forever terminating parental rights shall be based on a
finding by clear and convincing evidence that (1) there are
one or more statutory grounds and (2) it is in the best
interest of the juvenile, including consideration of the
likelihood that the juvenile will be adopted and the
potential harm to the health and safety of the child if
returned to the custody of the parent. We review
termination-of-parental-rights orders de novo but will not
reverse the trial court's findings of fact unless they
are clearly erroneous. Harjo v. Ark. Dep't of Human
Servs., 2018 Ark.App. 268, 548 S.W.3d 865. A finding is
clearly erroneous when, although there is evidence to support
it, the appellate court is left on the entire evidence with
the firm conviction that a mistake has been committed.
Id. We must defer to the superior position of the
circuit court to weigh the credibility of the witnesses.
Ewasiuk v. Ark. Dep't of Human Servs., 2018
Ark.App. 59, 540 S.W.3d 318. On appellate review, this court
gives a high degree of deference to the trial court, which is
in a far superior position to observe the parties before it.
Id. Termination of parental rights is an extreme
remedy and in derogation of the natural rights of parents,
but parental rights will not be enforced to the detriment or
destruction of the health and well-being of the child.
Id.
Counsel
states in her no-merit brief that any argument challenging
the statutory grounds for termination would be wholly
frivolous. Regarding the statutory grounds supporting
termination, counsel argues that there was sufficient
evidence to support the trial court's finding of
aggravated circumstances. DHS pled, and the trial court
found, that Kloss had subjected his children to aggravated
circumstances, meaning there is little likelihood that
services to Kloss will result in successful reunification.
Ark. Code Ann. §
9-27-341(b)(3)(B)(ix)(a)(3)(B).[4] Counsel correctly
asserts that Kloss was determined to be the father of K.K.1
and K.K.2 at the permanency-planning hearing; thus, he falls
within the class of persons to whom this statutory ground
applies. Counsel further argues that the evidence reflects
that there is little likelihood that services would result in
a successful reunification. Counsel is correct in this regard
as well.
We
agree that there was little likelihood of successful
reunification and that there was sufficient evidence to
support the trial court's finding of aggravated
circumstances. Kloss has a persistent and unresolved
addiction to drugs. Kloss admitted in his own testimony that
he has a drug problem and admitted that his drug of choice is
methamphetamine. While he denied having a problem with either
cocaine or opiates, he admitted testing positive in a
hair-follicle test to multiple drugs and admitted that he had
overdosed on fentanyl. In response to Kloss's addiction,
DHS provided rehabilitation services, including drug screens
and a drug assessment. On the drug screens, Kloss tested
positive for amphetamines, methamphetamine, opiates
(hydrocodone and oxycodone), cocaine, benzos, and BUP, which
is a narcotic. He did complete his drug assessment but did
not complete the recommended drug counseling. James Zachary
Green, a substance-abuse counselor, testified that it had
been recommended that Kloss attend nine individual sessions
and eighteen group sessions over a nine-week period. Kloss
did not attend any of the individual sessions and attended
only eight group sessions. While Kloss testified that he
believes the drug classes have been helpful, he admitted that
he does not have a sponsor, could not recite what
"step" of "12 step" recovery he was
practicing, and continues his relationship with Sinkey, who
admittedly could not maintain her own sobriety.
[5]
In
addition, DHS offered Kloss parenting classes and a
psychological evaluation, both of which he completed. He was
then referred for individual counseling. Lynn Hemphill, a
clinical social worker, testified that Kloss was one of his
clients and that he was scheduled for weekly individual
therapy sessions to deal with generalized anxiety and
situational depression. After the initial meeting, Hemphill
considered referring him to a psychiatrist for a
medication-management ...