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Pace v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

November 13, 2019

Kimberly PACE, Appellant
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees

Page 434

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV-17-1434], HONORABLE WILEY A. BRANTON, JR., JUDGE

         Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          One brief only.

         OPINION

         BART F. VIRDEN, Judge

          Appellant, Kimberly Pace, appeals a Pulaski County Circuit Court order terminating her parental rights to K.W. (born 11/28/17). Pace’s counsel has filed a motion

Page 435

to withdraw and a no-merit brief pursuant to our rules and caselaw, stating that there are no meritorious grounds to support an appeal. Ark. S.Ct. R. 6-9 (2019); Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004).

          The clerk of our court mailed a certified copy of counsel’s motion and brief to Pace’s last-known address at the Arkansas Department of Correction informing her of her right to file pro se points for reversal, and Pace untimely filed pro se points. We affirm the court’s decision to terminate Pace’s parental rights to K.W. and grant counsel’s motion to withdraw.

          We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep’t of Human Servs., 2012 Ark.App. 209, 396 S.W.3d 272. An order terminating parental rights must be based on a finding by clear and convincing evidence that the termination is in the children’s best interest. Id. The circuit court must consider the likelihood that the children will be adopted if the parent’s rights are terminated and the potential harm that could be caused if the children are returned to a parent. Harper v. Ark. Dep’t of Human Servs., 2011 Ark.App. 280, 378 S.W.3d 884. The circuit court must also find that one of the grounds stated in the termination statute is satisfied. Id. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction that the allegation has been established. Pratt v. Ark. Dep’t of Human Servs., 2012 Ark.App. 399, 413 S.W.3d 261. When the burden of proving a disputed fact is by clear and convincing evidence, we ask whether the circuit court’s finding on the disputed fact is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.

          In dependency-neglect cases, if, after studying the record and researching the law, appellant’s counsel determines that the appellant has no meritorious basis for appeal, then counsel may file a no-merit petition and move to withdraw. Ark. S.Ct. R. 6-9(i)(1). The petition must include an argument section that lists all adverse rulings that the parent received at the circuit court level and explain why each adverse ruling is not a meritorious ground for reversal. Ark. S.Ct. R. 6-9(i)(1)(A). The petition must also include an abstract and addendum containing all rulings adverse to the appealing parent that were made during the hearing from which the order on appeal arose. Ark. S.Ct. R. 6-9(i)(1)(B).

         The circuit court considered testimony, exhibits, and statements of the parties in deciding to terminate Pace’s parental rights. The Arkansas Department of Human Services (Department) filed a petition for emergency custody and dependency-neglect on December 4, 2017, and attached an affidavit setting forth the following relevant facts: following K.W.’s birth, Pace tested positive for PCP, and K.W. tested positive for PCP and methamphetamine. Pace denied using methamphetamine and PCP but she admitted that she drank alcohol and used marijuana, and she explained that she had been around people using PCP. K.W. was admitted to the NICU and was treated for withdrawal. Pace told the caseworker that she has two other children living in California and that she did not have current addresses for those children. Pace acknowledged that she had been diagnosed with bipolar disorder and that she refused to take her medication. K.W. was removed from Pace’s care and placed under a seventy-two-hour emergency hold.

          The court entered the order for emergency custody and found that K.W. was ...


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