Opinion
CV-22-264
11-30-2022
MCKENSIE COLLINS APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES
Dusti Standridge, for appellant. One brief only.
APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-20-583] HONORABLE THOMAS SMITH, JUDGE
Dusti Standridge, for appellant.
One brief only.
BART F. VIRDEN, JUDGE
The Benton County Circuit Court terminated the parental rights of appellant McKensie Collins to her three children born in 2016 (Minor Child 1), 2018 (Minor Child 2), and 2020 (Minor Child 3). Collins's counsel has filed a no-merit brief and motion to withdraw pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 6-9(j), asserting that there are no issues of arguable merit to support an appeal. The clerk of our court sent a copy of the brief and motion to Collins in an attempt to inform her of her right to file pro se points for reversal. The packet, however, was returned having been marked "return to sender/unclaimed/ unable to forward," and no additional contact information for Collins has been made available. We affirm the termination of Collins's parental rights and grant counsel's motion to withdraw.
The trial court also terminated the parental rights of Caleb Jackson, father of the minor children born in 2020 and 2018; however, he is not a party to this appeal. It was determined that the parental rights of Dylan Wilson, putative father of Minor Child 1, had not attached due to his complete absence from his son's life.
I. Factual and Procedural History
The Arkansas Department of Human Services (DHS) received a Garrett's Law report that Minor Child 3 had been born on December 1, 2020, with amphetamines in her system. DHS received another report that Collins had been using methamphetamine and marijuana, had left drugs and drug paraphernalia within reach of the children, and would become violent with the children when coming down from a high. There was also information that Collins had been pulled over for a traffic violation and that a search of the vehicle revealed four syringes loaded with methamphetamine, two baggies of methamphetamine, and a pipe containing one "hit" of marijuana. DHS filed a petition for ex parte emergency custody, which the trial court granted.
All three minor children were later adjudicated dependent-neglected because of Collins's parental unfitness, to which she stipulated. In a probable-cause order, the trial court ordered that DHS provide Collins with a substance-abuse evaluation and any recommended treatment, parenting classes, and a sobriety plan. A disposition order was entered in January 2021. It was noted that the case goal was reunification and that Collins had tested positive for methamphetamine, amphetamines, and marijuana at the hearing. Collins admitted recent drug use. A review hearing was held in April, but Collins was not present. The trial court found that she had not complied with the case plan and court orders but that DHS had offered services, including substance-abuse evaluations, random drug screening, and recommended treatment, along with individual counseling and parenting classes. A DHS court report indicated that Collins had not taken advantage of any of the services, had had little contact with the DHS caseworker, and had not regularly visited her children. The trial court, however, continued the goal of reunification. In a permanency-planning order entered in July, the trial court noted that Collins was not present at the hearing and that she had not complied with the case plan and court orders by taking advantage of the services that had been offered to her. The trial court then changed the goal of the case from reunification to adoption.
In September, DHS filed a petition to terminate Collins's parental rights to all three minor children. A termination hearing was scheduled for October and December but was continued for good cause. A hearing was finally held in January 2022. The trial court entered its order terminating Collins's parental rights in February based on three grounds alleged in DHS's petition: twelve-month failure to remedy, subsequent factors, and aggravated circumstances-little likelihood that services will result in successful reunification. See Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) , (vii)(a) & (ix)(a)(3)(B)(i) (Supp. 2021). The trial court also considered the children's potential for adoption and the potential harm they would suffer if returned to Collins's custody. Collins filed a timely notice of appeal, and her counsel has filed a no-merit brief and a motion to withdraw.
II. Standard of Review
Arkansas Supreme Court Rule 6-9(j)(1) allows counsel for an appellant in a termination case to file a no-merit brief and motion to withdraw if, after studying the record and researching the law, counsel determines that the appellant has no meritorious basis for appeal. In the brief, counsel must include an argument section that lists all trial court rulings that are adverse to the appellant on all objections, motions, and requests made by the party at the hearing from which the appeal arose and an explanation why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 6-9(j)(1)(A). In evaluating a no-merit brief, we determine whether the appeal is wholly frivolous or whether there are any issues of arguable merit. Cullum v. Ark. Dep't of Human Servs., 2022 Ark.App. 34.
We review termination-of-parental-rights cases de novo but will not reverse the trial court's ruling unless they are clearly erroneous. Day v. Ark. Dep't of Human Servs., 2022 Ark.App. 411, 653 S.W.3d 812. 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 determining whether a finding is clearly erroneous, the appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
III. Discussion
A. Statutory Grounds
An order terminating parental rights must be based on a showing by clear and convincing evidence as to one or more of the grounds for termination listed in Ark. Code Ann. § 9-27-341(b)(3)(B). Only one ground must be proved to support the termination decision. Best v. Ark. Dep't of Human Servs., 2020 Ark.App. 485, 611 S.W.3d 690. Counsel identified the failure-to-remedy ground as having the least potential for arguable merit. That ground allows for termination when a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) . With respect to the failure-to-remedy ground, the trial court found, in part, the following:
Today, the Court heard testimony, from the mother's own mouth, that she used methamphetamine as recently as a week ago, but claimed it was only to deal with the fact that her children are in DHS'[s] care. The Court finds that drugs have been a part of this case since day one, as drugs were one of the reasons for the removal of the children. Mom has not been present, nor has she been stable. Mom had two opportunities to go into transitional living, but she did not show.
Counsel argues that Collins's children were removed from her custody because of her drug use-specifically, methamphetamine-and that, although Collins was provided with multiple opportunities to submit to drug treatment, she admitted using methamphetamine the week before the termination hearing. Adame v. Ark. Dep't of Human Servs., 2020 Ark.App. 248, 601 S.W.3d 432 (affirming termination on failure-to-remedy ground when mother continued to use drugs, including two weeks prior to the termination hearing, despite offers of inpatient and outpatient drug treatment). We agree with counsel that no meritorious argument can be made that the trial court erred in terminating Collins's parental rights on this ground.
B. Best Interest
In addition to finding at least one statutory ground to support termination, the trial court must also 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. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii).
Regarding adoptability, the trial court heard testimony from a family-service worker. In light of that testimony, the trial court found that the children had no impediments or special needs that would prevent adoption and that they were doing well in their foster placement. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Strickland v. Ark. Dep't of Human Servs., 2018 Ark.App. 608, 567 S.W.3d 870.
In assessing the potential-harm factor, the trial court is not required to find that actual harm would result or to identify specific potential harm. Gonzalez v. Ark. Dep't of Human Servs., 2018 Ark.App. 425, 555 S.W.3d 915. A court may consider a parent's past behavior as a predictor of future behavior. Id. The trial court noted that Collins had continued to use drugs and had demonstrated instability. We have frequently held that continued drug use and instability demonstrate potential harm sufficient to support a best-interest finding in a termination-of-parental-rights case. Jordan v. Ark. Dep't of Human Servs., 2022 Ark.App. 344, 652 S.W.3d 611; Jones v. Ark. Dep't of Human Servs., 2019 Ark.App. 299, 578 S.W.3d 312; King v. Ark. Dep't of Human Servs., 2016 Ark.App. 368.
C. Other Adverse Rulings
Finally, counsel notes that, other than the termination decision itself, there were several hearsay objections raised during Collins's testimony, which the trial court sustained. First, Collins told her uncle that the children had been in DHS custody for almost a year and attempted to testify to her uncle's response; second, Collins testified that her "Pappaw" had told her to be quiet the last time; third, Collins testified to statements made by a DHS employee about how she feels and said that that particular DHS employee should be there to tell about what "an amazing mom" she is; and fourth, Collins testified that her grandparents were too afraid of DHS to let her in their house. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). Counsel argues that there were no exceptions available that would have allowed these hearsay statements into evidence. Counsel further argues that, in any event, these adverse rulings did not prejudice Collins because her statements did nothing to negate the fact that she had continued to use methamphetamine and had not taken advantage of the offers of drug treatment.
IV. Conclusion
We are satisfied that counsel has complied with the requirements of Linker-Flores, supra, and the Rules of the Arkansas Supreme Court and Court of Appeals and that none of the adverse rulings provide a meritorious basis for reversal. We therefore affirm the termination of Collins's parental rights, and we grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Barrett and Hixson, JJ., agree.