Mitchell v. Arkansas Department of Human Services

Cite as 2013 Ark. App. 715

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-678

AMANDA L. MITCHELL and JOHN Opinion Delivered December 4, 2013
ANTHONY MITCHELL
APPELLANTS APPEAL FROM THE POPE COUNTY
CIRCUIT COURT
V. [NO. JV-12-60]

HONORABLE KEN D. COKER, JR.
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILDREN
APPELLEES AFFIRMED; MOTION GRANTED

KENNETH S. HIXSON, Judge

Appellant Amanda Mitchell and appellant John Mitchell appeal separately from the

termination of their parental rights to their twelve-year-old son T.M., eleven-year-old son

Z.M., and eight-year-old daughter L.M. Amanda’s sole argument on appeal is that there was

insufficient evidence to support the termination of her parental rights. John’s counsel has filed

a no-merit appeal and a motion to withdraw, stating that there is no issue of arguable merit

to advance on appeal and that she should be relieved of counsel. We affirm both appeals, and

we grant John’s counsel’s motion to be relieved.

We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of

Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist,

in addition to a finding that it is in the child’s best interest to terminate parental rights; these

must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2011);
Cite as 2013 Ark. App. 715

M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and

convincing evidence is that degree of proof that will produce in the fact-finder a firm

conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633,

839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the

disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.

Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark.

Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).

Appellee Department of Human Services (DHS) has an extensive history with this

family. It began in 2003, when the appellants’ children were removed from their custody for

about a month due to inadequate supervision and incarceration of both parents for

endangerment of a minor. In June 2010 the children were placed in foster care at Amanda’s

request due to alcohol abuse and domestic violence in the home. After Amanda and John

completed various DHS services including counseling and parenting classes, the children were

returned to them in May 2011. In December 2011, DHS opened a protective-services case

based on findings that the parents stayed drunk most of the time, that John abused Amanda

in front of the children, and that the children were scared at home due to the domestic

violence. It was found that Amanda had recently been arrested for public intoxication,

disorderly conduct, and criminal mischief. John tested positive for THC, and Amanda refused

to take a drug test.

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The most recent removal of the children occurred on March 13, 2012, when the trial

court entered an ex parte order for emergency DHS custody. The emergency order was

based on an affidavit by a family service worker regarding events that occurred on the

morning of March 10, 2012. On that morning, DHS received a call stating that Amanda was

drunk and going from house to house in her neighborhood. The police were dispatched to

the appellants’ residence, and the police found Amanda to be intoxicated with multiple

bruises, swelling, and abrasions on her face and neck. Amanda registered .19 on a breathalyzer

test, and she indicated that John had caused her injuries the night before when they were

drinking whiskey. Amanda said that John had whipped her with a dog leash and locked her

in the dog pen in their living room, which occurred in the presence of their daughter.

Amanda’s daughter had to let Amanda out of the cage. John had left home with the boys

before the police arrived that morning.

On April 13, 2012, the trial court entered an order adjudicating the children

dependent/neglected due to the parents’ alcohol abuse and domestic violence. The goal

of the case was reunification, and the parents were given visitation supervised by DHS.

Both Amanda and John were ordered to submit to drug and alcohol screens, attend

parenting classes, attend counseling, submit to a psychological evaluation and follow any

recommendations, attend anger-management classes, and maintain stable housing and

employment. John was ordered to submit to a drug-and-alcohol assessment, and Amanda was

ordered to complete inpatient substance-abuse treatment.

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On April 16, 2012, the trial court entered an emergency ex parte order suspending

John’s visitation, and a subsequent order suspending John’s visitation was entered on June 11,

2012. These orders were based on proof that, after the children were taken into DHS

custody, the appellants were drinking together on March 28, 2012, and John dragged Amanda

by her hair, kicked her, sprayed roach spray in her face, and choked her until she blacked out.

As a result of this abuse Amanda suffered broken ribs, a punctured lung, and a lacerated liver,

for which she underwent surgery and an extended stay in the intensive-care unit. These acts

ultimately resulted in a felony conviction against John for domestic battery, for which he

received a two-year prison sentence followed by a four-year suspended imposition of

sentence.

On November 2, 2012, the trial court entered an order terminating reunification

services because there was little likelihood that further services would result in successful

reunification. The no-reunification order was based on proof that John was in prison, and

that Amanda was not visiting the children and continued to drink alcohol excessively. An

affidavit of a family service worker stated that Amanda drank alcohol for a week straight

beginning on September 9, 2012, and then tried to commit suicide. The affidavit further

stated that Amanda was unstable and had failed to cooperate with DHS or the court’s orders.

On November 21, 2012, the trial court entered a permanency-planning order changing the

goal of the case to termination of parental rights and adoption.

DHS filed a petition to terminate both parents’ parental rights on December 14, 2012.

The termination hearing was held on April 15, 2013.

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On May 3, 2013, the trial court entered an order terminating both Amanda’s and

John’s parental rights to their three children. The trial court found by clear and convincing

evidence that termination of parental rights was in the children’s best interest, and the court

specifically considered the likelihood that the children would be adopted, as well as the

potential harm of returning them to the custody of their parents as required by Ark. Code

Ann. section 9-27-341(b)(3)(A)(i) & (ii) (Supp. 2011). The trial court also found clear and

convincing evidence of these two statutory grounds under subsection (b)(3)(B):

(vii)(a) That other factors or issues arose subsequent to the filing of the original petition
for dependency-neglect that demonstrate that return of the juvenile to 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 return of the juvenile to the custody of the parent.

....

(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile
division of circuit court, to:
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) . . . [A] determination has been made by a judge that there is little
likelihood that services to the family will result in successful
reunification[.]

At the termination hearing, Amanda testified that she had lived in a one-bedroom

apartment for the past four months. Amanda stated that she had plans to move into a three-

bedroom trailer in about six weeks. She acknowledged that since her children were removed

in March 2012 she has lived in five different places. Amanda stated that she was unemployed,

but that she has lupus and draws a monthly disability check.

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Amanda acknowledged that she has had alcohol-abuse issues for the past thirteen years,

and she said that she consistently endured domestic violence from John throughout their

marriage. Despite their turbulent and violent relationship, Amanda remained in a relationship

with John until he was incarcerated in September 2012. However, Amanda filed for divorce

against John in January 2013, and she thought the divorce would be final a few weeks after

the termination hearing.

Amanda testified about a fire at her residence in early January 2013. Amanda stated

that she got drunk and forgot to turn off a burner on the stove, which caused the fire.

Amanda said that while the house was on fire she was on the floor, was depressed, and did not

want to leave the building. The house was full of smoke, and a fireman had to physically

remove Amanda from the house.

As a result of the circumstances of the house fire, Amanda’s family had her

involuntarily committed to a twenty-one-day inpatient alcohol-treatment program, which she

completed. However, two days after her release from the rehabilitation program, Amanda

was cited for public intoxication. She explained that this occurred in early February 2013 and

that she got drunk because she was depressed. Amanda claimed that she had not consumed

alcohol since then and had been sober for the past few months. Amanda testified that she

thought she could provide a safe home for the children with John removed from her life. She

said that she was taking parenting classes, which she would complete in a couple of weeks.

Amanda asked that her parental rights not be terminated, and that she be given a couple of

months to prepare a suitable home for the children.

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John testified that he was still incarcerated at the time of the termination hearing, but

that he expected to be paroled in four or five months. John stated that upon being paroled

he had a job lined up and planned to move in temporarily with his mother. John thought that

he could be in a position to take his children back shortly after his release from prison.

Melissa Cain was the DHS caseworker assigned to this case. Ms. Cain testified that

after the children were removed in March 2012 neither parent maintained stable housing, and

she said that “they weren’t supposed to be together so they were pretty much in hiding.”

According to Ms. Cain, neither party completed any of the services offered by DHS.

Ms. Cain stated that the last time Amanda visited the children was almost a year before the

termination hearing on May 23, 2012.

Ms. Cain testified that L.M. had made dramatic improvement since being removed

from her parents’ home, and that her foster parents were interested in adopting her. Ms. Cain

stated that the two boys, T.M. and Z.M., had behavioral issues but had no medical issues that

would prevent their adoption. She said that DHS had been successful in adopting children

with these characteristics in the past, and she thought that the boys were adoptable. Ms. Cain

gave the opinion that there would be a great potential for harm in placing the children back

in the custody of their parents, and that termination of parental rights was in the children’s

best interest.

In Amanda’s appeal to this court, she challenges the sufficiency of the evidence

supporting termination of her parental rights. Specifically, Amanda argues that the trial court

erred in finding that termination was in the best interest of her children. Amanda submits that

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she was a victim of domestic violence for many years but has made the decision to terminate

her relationship with her abuser, John. Amanda asserts that she has been striving to overcome

the obstacles to complete the necessary goals to provide a home for her family, noting that she

has completed alcohol rehabilitation and is taking parenting classes. Amanda contends that

she should have been given more time to rectify her situation and to prove she could provide

a stable home.

Amanda also contends that termination of her parental rights was not in the best

interest of her boys because they have exhibited significant behavioral problems, even to the

point of harming a foster parent, which makes their adoption unlikely. Amanda also notes

that her oldest son, T.M., is now twelve years old and likely would not consent to being

adopted.

We hold that the trial court did not clearly err in finding that termination of Amanda’s

parental rights was in the best interest of the children. Amanda has a long history with DHS,

and despite the repeated offer of DHS services Amanda failed to demonstrate that she could

provide a suitable and safe home for her children. Amanda had five different residences since

the most recent removal of the children in March 2012, she failed to comply with the

caseplan, and she had not visited the children since May 2012. Amanda presently lives in a

one-bedroom apartment and said she wanted more time to obtain a suitable home and

complete parenting classes. However, we have held that a child’s need for permanency and

stability may override a parent’s request for additional time to improve the parent’s

circumstances. Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17, 372 S.W.3d 849.

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In addition to having no suitable place for the children to live, Amanda has a long

history of alcohol abuse and this continued long after John’s incarceration. In particular,

Amanda’s conduct had near-deadly consequences in January 2013 when she got drunk and

accidently set her house on fire, and then chose to remain in the house and had to be

physically removed by a fireman. And although Amanda completed inpatient alcohol

treatment, this was forced on her by her family, and she was cited for public intoxication just

two days after her release. There was also evidence that, on a previous occasion in December

2012, Amanda had called the police, reporting that she needed help and had harmed herself

by cutting her forearms. And although Amanda testified that she did not plan to reunite with

her abusive husband upon his release from prison, the trial court understandably thought,

based on her history of staying with him in the past (including after John had put her in

intensive care), that she would again be back with John. There was ample evidence showing

that there would be significant potential harm to the children if returned to Amanda’s custody.

While Amanda suggests that T.M. and Z.M. are not likely to be adopted, there was

evidence to the contrary, and at any rate we have held that adoptability is but one factor that

is considered when making a best-interest determination. See Renfro v. Ark. Dep’t of Human

Servs., 2011 Ark. App. 419, 385 S.W.3d 285. The guiding principle is that, when all factors

are considered, the evidence must be clear and convincing that termination is in the child’s

best interest. Childress v. Ark. Dep’t of Human Servs., 2009 Ark. App. 322, 307 S.W.3d 50.

We have also held that a child’s consent to an adoption, which may be required for a child

over twelve years of age under Ark. Code Ann. section 9-9-206(a)(5) (Supp. 2011), is not a

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necessary element of proof when a court is considering termination of parental rights. See id.

Considering the evidence before the trial court demonstrating Amanda’s instability and

inability to provide a safe and suitable home for the children, we conclude that the trial court’s

finding that termination was in the children’s best interest was not clearly erroneous.

Although Amanda’s point on appeal only makes reference to the best-interest

requirement for termination of parental rights, in her conclusion she also states that “the

statutory requirements were not met.” However, we disagree. Proof of only one statutory

ground is sufficient to terminate parental rights. Hughes v. Ark. Dep’t of Human Servs., 2010

Ark. App. 526. In this case the trial court found, pursuant to Ark. Code Ann. section 9-27-

341(b)(3)(B)(ix)(a), that Amanda had subjected the children to aggravated circumstances

because there was little likelihood of successful reunification. In view of the evidence

discussed above, we hold that this finding was not clearly erroneous.

We now turn to John’s no-merit appeal. In compliance with Linker-Flores v. Arkansas

Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 6-

9(i), John’s counsel has examined the record for adverse rulings, explaining why each adverse

ruling would not support a meritorious ground for reversal. John’s counsel has accurately

asserted that the only adverse ruling was the termination itself. A copy of John’s counsel’s

brief and motion to withdraw were sent to John at his last known address, with information

about his right to file a list of pro se points. However, the packet was returned and marked

“paroled.” John’s counsel has no additional contact information.

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We agree with John’s counsel that any challenge to the sufficiency of the evidence

supporting the termination of his parental rights would be wholly without merit. The

evidence showed that throughout the course of his marriage to Amanda he physically abused

her in front of his children, and his severe domestic abuse ultimately resulted in a felony

conviction and prison sentence. At the time of the termination hearing John was still in

prison. The trial court’s finding that John had subjected his children to aggravated

circumstances, and its finding that termination was in the best interest of the children, were

not clearly erroneous.

After examining the record and the briefs presented, we affirm the termination of

Amanda’s parental rights. Moreover, we have determined that John’s counsel has complied

with our requirements for no-merit cases and that his appeal is wholly without merit.

Accordingly, we affirm the order terminating both appellants’ parental rights, and we grant

John’s counsel’s motion to be relieved from representation.

Affirmed; motion granted.

GLOVER and WOOD, JJ., agree.

Janet Lawrence, for appellant Amanda L. Mitchell; Leah Lanford, Arkansas Public

Defender Commission, for appellant John Anthony Mitchell.

Tabitha B. McNulty, Office of Chief Counsel, and Chrestman Group, PLLC, by: Keith

L. Chrestman, for appellees.