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.
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 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. Sup. 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. Sup. 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. Sup. 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. Sup. 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 dependent-neglected, and immediate removal from
Pace's custody was necessary to protect the K.W. The
court directed in the probable cause order that any relative
interested in placement should submit to hair-and-urine-based
drug screening and that a home study would be conducted.
Following
K.W.'s removal, the circuit court ordered that Pace
submit to random drug testing and that she be offered
preadjudication reunification services. In an adjudication
order entered on February 13, 2018, the circuit court found
that the ability to offer services to Pace, who was
incarcerated, was limited. The court found that Pace had
subjected K.W. to aggravated circumstances by exposing him to
drugs while she was pregnant, and it was highly unlikely that
services would result in reunification. Pace did not appeal
the adjudication order.
In the
permanency-planning order entered April 23, 2018, the circuit
court found that Pace was still incarcerated, and it
reiterated its finding that it was unlikely that services
would result in reunification. The court found that
Pace's testimony raised concern as to her trustworthiness
and credibility and that she expressed no understanding of
her mental-health issues and criminal history. In a second
permanency-planning order entered October 5, 2018, the court
stated that Pace had made some effort to comply with the case
plan but that she had made no material progress toward
reunification. She had submitted to a psychological
evaluation, but the report was "not very
encouraging." The court found that Pace had given up a
child for adoption when she was fifteen years old, and drugs
had been a factor in that situation as well. Pace admitted
that she self-medicated with marijuana. The mental-health
evaluation report set forth that "based on her scores in
the evaluation, the possibility of an inability to maintain
custody may be indicated[.]" Pace continued to test
positive for PCP, and in September 2018, she refused to
submit to a drug test. Though Pace had completed thirty-day
in-treatment drug rehabilitation, she had not done the
recommended follow-up care. Pace had been arrested again on
drug-related charges, and she could not provide a release
date. The court found that the Department had made reasonable
efforts.
The
Department filed a petition to terminate Pace's parental
rights and alleged the following three statutory grounds in
support of the petition: (1) that the juvenile had been
adjudicated dependent-neglected and continued out of the
custody of the parent for twelve months, and despite
meaningful effort by the Department, the parent failed to
correct the conditions that caused removal;[1] (2) the
"other factors" ground-that other factors or issues
arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that placement of the
juvenile in the custody of the parent is contrary to the
juvenile's health, safety, or welfare and that, despite
the offer of appropriate family services, the parent has
manifested the incapacity or indifference to remedy the
subsequent issues or factors or rehabilitate the parent's
circumstances that prevent the placement of the juvenile in
the custody of the parent;[2] and (3) the "aggravated
circumstances" ground-that the parent is found by a
court of competent jurisdiction to have subjected any
juvenile to aggravated circumstances, which means, among
other things, that a determination has been or is made by a
judge that there is little likelihood that services to the
family will result in successful reunification.[3] The Department
asserted that K.W. is adoptable, and he is a happy, healthy
child.
The
circuit court held a termination hearing, and caseworker
Tameka Jones testified that Pace had refused a drug test in
September and tested positive for drugs during treatment.
Jones recounted that Pace had been arrested in August and
again in December and that Pace had been sentenced on January
24, 2019, to twenty-four months' incarceration. Counsel
for Pace stated that though home studies had been done in
California, the results were not back, and "it takes a
while for California." The adoption specialist testified
...