APPEAL
FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14JV-15-81]
HONORABLE DAVID W. TALLEY, JR., JUDGE
Katalina Wyninger, for appellant.
Andrew
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
WAYMOND M. BROWN, JUDGE
Counsel
for appellant Catherine Hardiman brings this no-merit appeal
from the Columbia County Circuit Court's order
terminating appellant's parental rights to her sons,
D.H.1 (DOB: 02/27/05) and D.H.2 (DOB: 05/11/06). Pursuant to
Linker-Flores v. Arkansas Department of Human
Services[1] and Arkansas Supreme Court Rule 6-9(i),
appellant's counsel has filed a motion to withdraw and a
no-merit brief contending that there are no meritorious
issues that would support an appeal. The clerk of this court
mailed a certified copy of counsel's brief and motion to
be relieved to appellant, informing her of her right to file
pro se points for reversal, which she has elected to do. We
affirm the termination order and grant counsel's motion
to withdraw.
This
court reviews termination-of-parental-rights cases de
novo.[2] Grounds for termination of parental rights
must be proved by clear and convincing evidence, which is
that degree of proof that will produce in the finder of fact
a firm conviction of the allegation sought to be
established.[3] The appellate inquiry is whether the
circuit court's finding that the disputed fact was proved
by clear and convincing evidence is clearly
erroneous.[4] 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.[5] In resolving the
clearly erroneous question, we give due regard to the
opportunity of the circuit court to judge the credibility of
witnesses.[6]
To
terminate parental rights, a circuit 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.[7] The circuit court must also find by clear
and convincing evidence that one or more statutory grounds
for termination exists.[8] Proof of only one statutory ground is
sufficient to terminate parental rights.[9] Termination of
parental rights is an extreme remedy and in derogation of a
parent's natural rights; however, parental rights will
not be enforced to the detriment or destruction of the health
and well-being of the child.[10] The intent behind the
termination-of-parental-rights statute is to provide
permanency in a child's life when it is not possible to
return the child to the family home because it is contrary to
the child's health, safety, or welfare, and a return to
the family home cannot be accomplished in a reasonable period
of time as viewed from the child's
perspective.[11]
Arkansas
Supreme Court Rule 6-9(i) allows counsel for an appellant in
a termination-of-parental-rights case to file a no-merit
petition and motion to withdraw if, after studying the record
and researching the law, counsel determines that the
appellant has no meritorious basis for appeal. The petition
must include an argument section that lists all adverse
rulings to the appellant made by the circuit court on all
objections, motions, and requests made by the party at the
hearing from which the appeal arose and explain why each
adverse ruling is not a meritorious ground for
reversal.[12]
On
October 26, 2015, the Arkansas Department of Human Services
(DHS) was contacted after a call had been made to the
child-abuse hotline. Following an investigation, DHS
exercised a seventy-two-hour hold on D.H.1 and D.H.2,
removing them from the legal custody of their mother,
appellant, and the physical custody of their paternal
grandmother, Debbie Daniels. On December 4, D.H.1 and D.H.2
were adjudicated dependent-neglected due to physical abuse by
an aunt and failure to protect by the grandmother. The goal
of the case was set as reunification.[13]
Following
the October 7, 2016 permanency-planning hearing, the goal of
the case was changed to authorize a plan to obtain a
permanent custodian, including custody with a fit and willing
relative. The circuit court ordered DHS to work with Daniels
toward achieving the goal of permanent custody after finding
appellant was not in compliance with the case plan or orders
of the court. At a second permanency-planning hearing held on
November 3, 2017, the circuit court found appellant unfit and
unable to protect D.H.1 and D.H.2's health and safety if
returned to her. The court further found that despite
reasonable efforts by DHS, appellant had not been
"involved in the case plan." Consequently, the goal
of the case was changed from reunification to termination of
parental rights and adoption.
DHS
filed a petition for termination of parental rights on
December 12, 2018, alleging five grounds for termination.
Following a hearing, the circuit court granted DHS's
petition to terminate appellant's parental rights based
on two of the grounds alleged in the petition: (1) aggravated
circumstances[14] and (2) abandonment.[15] A termination
order was entered on February 13, 2019.
Evidence
presented at the January 18, 2019 termination hearing
supports the abandonment ground for termination. Appellant
testified that she had not attended any court hearings nor
had she seen D.H.1 and D.H.2 since July 2017.[16] Although
she claimed she had no transportation, she admitted she was
able to get rides to other places she wanted to go;
however, she claimed that DHS was on the other side of
town, which was just too far. Additionally, appellant
claimed that she thought the case was closed despite the
fact that she was present at the July 2017 hearing at which
a future court date was set. Appellant went more than a
year without seeing her children and she contacted DHS on
January 16, 2019, only two days prior to the termination
hearing. Abandonment is defined as the failure of a parent
to support or maintain regular contact with a child without
just cause.[17] Additionally, the termination statute
does not require that the abandonment last for any
particular length of time.[18]
Evidence
presented at the termination hearing also supports the
circuit court's best-interest finding. Adoption
specialist Crystal Williams testified that D.H.1 and D.H.2
are adoptable. She stated that the boys do not have any
medical or physical barriers to adoption and that they are a
match for one-hundred-nine possible adoptive families. The
testimony of an adoption specialist is sufficient to support
a circuit court's adoptability findings.[19] As for
potential harm, appellant was noncompliant with the ...