APPEAL
FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36JV-17-53]
HONORABLE, JUDGE KEN D. COKER, JR.
Tina
Bowers Lee, Arkansas Public Defender Commission, for
appellant.
One
brief only.
MEREDITH B. SWITZER, JUDGE
Aric
Danes appeals the Johnson County Circuit Court's
termination of his parental rights to his daughter, J.W.,
born April 18, 2017.[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), his
counsel has filed a no-merit brief setting forth all adverse
rulings from the termination hearing and asserting there are
no issues that would support a meritorious appeal. Counsel
has also filed a motion asking to be allowed to withdraw. The
clerk of this court notified Danes of his right to file pro
se points. Danes has filed no pro se points. We affirm the
order terminating Danes's parental rights and grant
counsel's motion to withdraw.
I.
Standard of Review
Termination
of parental rights is a two-step process requiring a
determination that the parent is unfit and that termination
is in the best interest of the child. Rylie v. Ark.
Dep't of Human Servs., 2018 Ark.App. 366, 554 S.W.3d
275. The first step requires proof of one or more statutory
grounds for termination; the second step, the best-interest
analysis, includes consideration of the likelihood that the
juvenile will be adopted, and the potential harm caused by
returning custody of the child to the parent. Id.
Each step requires proof by clear and convincing evidence,
which is the degree of proof that will produce in the
factfinder a firm conviction regarding the allegation sought
to be established. Id.
Appellate
review for parental termination cases is de novo, and our
inquiry on appeal is whether the circuit court's finding
that the disputed fact was proved by clear and convincing
evidence is clearly erroneous. Griffin v. Ark. Dep't
of Human Servs., 2017 Ark.App. 635. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with a
definite and firm conviction that a mistake has been made.
Id. In resolving the clearly erroneous question, the
reviewing court defers to the circuit court because of its
superior opportunity to observe the parties and to judge the
credibility of witnesses. Id.
II.
Facts
On July
20, 2017, the Arkansas Department of Human Services (DHS)
filed a petition for emergency custody and dependency-neglect
with respect to J.W. The affidavit attached to the petition
averred that J.W. was removed from the custody of her mother,
Katherina Waugh, on July 17, 2017. Waugh and J.W. had been
living with Danes, who was identified as Waugh's
boyfriend and J.W.'s putative father. There was no food
in the home, there was no refrigerator, and it was unknown if
the home had electricity. J.W. was removed from Waugh's
custody due to Waugh's mental instability and inability
to care for J.W. An ex parte order of emergency custody was
entered the same day. A probable-cause order was entered on
July 26, and J.W. was adjudicated dependent-neglected in an
order entered August 22. The adjudication order directed
Danes to submit to random drug screens; attend and complete
parenting classes; obtain and maintain stable and appropriate
housing; obtain and maintain stable and gainful employment;
attend counseling as recommended; submit to a psychological
examination and follow any recommendations; and submit to a
paternity test.
In a
review order entered on November 28, the circuit court found
Danes had complied with the case plan (Waugh had not); Danes
was determined to be J.W.'s legal father; and the goal of
the case remained reunification. The circuit court entered
additional review orders on January 23 and April 17, 2018;
the goal of the case remained reunification, but there was no
finding as to whether Danes was in compliance with the case
plan in either order.
A
permanency-planning hearing was held on July 17, 2018, the
same day Waugh filed her consent to terminate her parental
rights to J.W. The circuit court entered the
permanency-planning order on July 31, changing the goal of
the case from reunification to adoption.
DHS
filed a petition to terminate Danes's parental rights on
August 17, 2018, alleging four bases: (1) J.W. had been
adjudicated dependent-neglected and had continued out of
Danes's custody for a period of twelve months, and
despite a meaningful effort by DHS to correct the conditions
causing removal, the conditions had not been remedied; (2)
J.W. had lived outside Dane's home for a period of twelve
months, and Danes had willfully failed to provide significant
material support in accordance with his means or to maintain
meaningful contact with J.W.; (3) Danes had abandoned J.W.;
and (4) other factors arose subsequent to the filing of the
original petition for dependency-neglect that demonstrate
placement of J.W. in Danes's custody is contrary to her
health, safety, and welfare, and that, despite the offer of
appropriate family services, Danes had manifested the
incapacity or indifference to remedy the subsequent issues or
factors or rehabilitate the circumstances that prevented the
placement of J.W. in his custody. In a termination hearing
held on November 20, the circuit court terminated Danes's
parental rights, finding it was in J.W.'s best interest
and that DHS had proved the twelve-months-failure-to-remedy
and subsequent-factors grounds.
At the
termination hearing, Danes testified he had moved several
times during the case. At one residence, not only were there
child-safety issues, there were also issues regarding people
moving in and out of his home and his failure to inform DHS
of these people. Danes stated that he currently had a
two-bedroom apartment where he lived with his fiancée
that was appropriate for J.W. Danes was unemployed at the
time of the termination hearing due to injuries suffered in a
scooter accident, but he testified that he was supposed to
begin work at Subway the Saturday after the termination
hearing, even though he was not yet cleared to return to work
due to his injuries. Danes admitted he had "pointed
out" due to excess absences at Tyson after only eight
months of employment, quit OK Foods after approximately four
months due to excess absences, worked for ...