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ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-1113
B.M. Opinion Delivered APRIL 29, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
EIGHTH DIVISION
[NO. 60JV-13-827]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES HONORABLE WILEY A. BRANTON,
APPELLEE JR., JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
CLIFF HOOFMAN, Judge
Appellant B.M. appeals from the order of the Pulaski County Circuit Court
terminating her parental rights to her daughter, K.M. Appellant’s attorney has filed a no-
merit brief and a motion to withdraw as counsel pursuant to Rule 6-9(i) of the Rules of the
Arkansas Supreme Court and Linker-Flores v. Arkansas Department of Human Services, 359 Ark.
131, 194 S.W.3d 739 (2004). The clerk of this court mailed a certified copy of counsel’s
motion and brief to appellant, informing her of her right to file pro se points for reversal, but
no such points have been filed.1 We grant counsel’s motion to withdraw and affirm the
termination order.
Appellant was thirteen years old when she became pregnant with K.M. (DOB
1
When the first certified packet mailed to appellant was returned, her counsel
obtained an updated address. A second packet mailed to this new address was also returned,
marked “No Such Number.” Counsel has no additional contact information for appellant.
Cite as 2015 Ark. App. 283
7/15/12). K.M.’s father, Vanoy Green, who was twenty-one years old at the time, was
convicted of statutory rape of appellant and sentenced to a twenty-year term of imprisonment
in Texas. The Arkansas Department of Human Services (DHS) became involved with
appellant’s family in November 2012 after appellant was adjudicated delinquent due to a
domestic battery against her mother, Kristil Mitchell. Appellant violated the conditions of her
probation in February 2013, and she was placed in juvenile detention, followed by a
residential-treatment program at Youth Home. K.M. initially remained in the custody of
appellant’s mother, Kristil; however, despite the fact that services were offered to the family
to prevent removal, DHS eventually exercised a seventy-two-hour hold of K.M. on April 25,
2013, due to Kristil’s unfitness and inadequate housing.
Both appellant and K.M. were adjudicated dependent-neglected on July 11, 2013, as
a result of parental unfitness. The circuit court found that appellant was an unfit parent, partly
based on her family history of instability, and noted that, although the court had previously
attempted to release her from detention, appellant did not comply with the court’s directives.
The court stated that appellant’s behavior was out of control, that she was sexually
promiscuous, and that she would not follow rules or directives; thus, the court ordered that
she remain in a residential facility. The circuit court set the goal of K.M.’s case as
reunification, ordered that appellant complete residential treatment and follow the
recommendations upon discharge, and ordered supervised visitation with K.M. The court
warned appellant that she had one year to work toward reunification with her daughter and
that after one year, the court would have to consider alternative means of achieving
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permanency for K.M. unless there were compelling reasons to continue with reunification
efforts. The court stated that for it to find such compelling reasons, appellant would have to
make significant, measurable progress, and there would have to be a likelihood that
reunification could occur within a time period of a few months.
A permanency-planning hearing was held on February 11, 2014. The circuit court
continued the goal of reunification, stating that it would give appellant the full statutory time
period of one year to make herself a fit and appropriate parent. The court found that the
toxicity of appellant’s parents was a concern because it had caused appellant to have
dysfunction of her own. The court noted that it was concerned about K.M. also being
negatively affected if she were to be returned to appellant’s custody. The court found that
appellant “still had a long way to go” and that she needed to show maturity and “step up to
the plate.” The court was disturbed by appellant’s desire to maintain a relationship with
Green, noting that she had been corresponding with Green’s sister via Facebook. The court
found that any relationship between the Green family and appellant or K.M. was
inappropriate and that appellant needed to demonstrate to the court that Green was out of the
picture.
Another permanency-planning hearing was held on April 29, 2014, after K.M. had
been out of appellant’s custody for one year. The circuit court found that there were issues
with appellant’s trustworthiness and credibility because she had been dishonest when she
initially testified at the hearing that she had not continued to have contact with Green’s family
and that she did not know where her mother was living. After considering her history and
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track record, the court found that there were no compelling reasons to give appellant more
time to pursue reunification and authorized DHS to file a petition for termination of parental
rights. The court noted that termination was not a foregone conclusion and continued
services to appellant; however, the court reiterated its concerns about appellant’s credibility
and her real intentions regarding Green. Thus, the court advised appellant that she needed
to address her issues and also achieve the highest level possible at Youth Home.
On May 20, 2014, DHS filed a petition to terminate appellant’s and Green’s parental
rights to K.M. As grounds for termination with regard to appellant, DHS alleged (1) that
K.M. had been adjudicated dependent-neglected and remained out of the home for more than
twelve months and that the parents had failed to remedy the conditions causing removal; (2)
that subsequent to the filing of the original petition for dependency-neglect, other factors or
issues arose that demonstrated that return of K.M. to the custody of the parents was contrary
to the child’s health, safety, or welfare and that, despite the offer of appropriate family services,
the parents had manifested the incapacity or indifference to remedy the subsequent issues or
factors or rehabilitate the parents’ circumstances that prevent return of the child to the custody
of the parents; and (3) that the parent is found by the court to have subjected the child to
aggravated circumstances.
The termination hearing was held on July 29, 2014. Deborah Penny, appellant’s
therapist at Youth Home, testified that she had worked with appellant since October 2013,
when appellant was admitted to the residential-treatment program. Penny stated that
appellant had made significant progress during treatment, that she had attained the highest
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level possible at Youth Home, and that she was ready to be discharged from the program.
Penny indicated that appellant had demonstrated increased maturity and consequential
thinking skills, including her understanding that contact with her family or with Green could
jeopardize her having custody of K.M. According to Penny, appellant had a good prognosis,
although she would continue to need structure in a step-down facility. Penny stated that she
had discussed the possibility of K.M.’s being placed with appellant in a therapeutic foster
home, although one had not yet been identified. Penny indicated that it could take
approximately thirty to ninety days for appellant to adapt to her new environment and for
K.M. to be gradually integrated into the home. In response to the court’s concerns about
appellant’s continued contact with Green, Penny agreed that this had been an issue as recently
as the last court hearing and that it was only since the goal had been changed to termination
that appellant had attempted to comply with the court’s directives in this regard. Although
Penny opined that, due to her progress, appellant’s parental rights should not be terminated,
Penny agreed that she was qualified to testify as to what was best only for appellant, not K.M.
Toni Hansberry, the DHS caseworker for the family, agreed with Penny that appellant
should be given more time to demonstrate that she can be an appropriate parent to K.M.
because she had not been given an opportunity to do so during the case. Hansberry indicated
that she was hoping to find a therapeutic foster home for appellant, where after a period of
transition and additional visitation, K.M. could be placed with her. According to Hansberry,
the supervised visits between appellant and K.M. had gone well, although she noted that
K.M.’s foster parent had expressed concern over how appellant was taking care of the child
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as recently as April. When the court asked Hansberry how much additional time appellant
would need for reunification to occur, Hansberry indicated that appellant, who was sixteen
years old at the time of the hearing, would have to be at least eighteen years old, have stable
employment and housing, and demonstrate appropriate parenting skills. Hansberry agreed
that it was appellant’s fault that she had been placed in a detention facility and had remained
there for twenty months. She further agreed that K.M. had not lived with appellant since she
was four or five months old. Hansberry testified that K.M. was adoptable and that DHS
would have no problem finding an adoptive home for her.
Appellant testified that she had purposely not had contact with Green or his family
since May 2014 because she did not want her parental rights terminated. She did testify,
however, that she did not think that what Green did to her was wrong because it was
consensual. She also indicated that it was not wrong for a twenty-one-year-old to have sex
with a thirteen-year-old, although she would not allow her daughter to do so. Appellant
further stated that she thought it would be good for K.M. to know Green’s family. She
requested that the court give her more time to work toward reunification with K.M. and
testified that she could learn how to be a parent if given the chance to live in the same home
with her child.
After extensively discussing the history of the case and all the evidence presented, the
circuit court found that there was clear and convincing evidence to support the termination
of appellant’s parental rights on all three grounds alleged with respect to appellant in the
petition. The court further found that termination was in K.M.’s best interest, specifically
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considering K.M.’s adoptability and the potential harm to her health and safety if custody
were to be returned to appellant. The termination order was entered on October 1, 2014,
and appellant timely appealed from this order.2 Appellant’s counsel has filed a no-merit brief
pursuant to Arkansas Supreme Court Rule 6-9(i) (2014), alleging that there are no issues of
arguable merit for appeal.
The first adverse ruling discussed by counsel is the order granting the petition for
termination. A trial court’s order terminating parental rights must be based upon findings
proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2013);
Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and
convincing evidence is defined as that degree of proof that will produce in the fact-finder a
firm conviction as to the allegation sought to be established. Dinkins, supra. On appeal, the
appellate court will not reverse the trial court’s ruling unless its findings are clearly erroneous.
Id. 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, an
appellate court gives due deference to the opportunity of the trial court to judge the
credibility of witnesses. Id.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3), an order terminating
parental rights shall be based upon a finding by clear and convincing evidence that it is in the
2
The circuit court also terminated Green’s parental rights in this order; however, he
is not a party to this appeal.
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best interest of the juvenile, including consideration of the likelihood of adoption and the
potential harm, specifically addressing the effect on the health and safety of the child, caused
by continuing contact with the parent. The order terminating parental rights also must be
based on a showing of clear and convincing evidence as to one or more of the grounds for
termination listed in section 9-27-341(b)(3)(B).
While the circuit court’s order in this case found clear and convincing evidence to
support all three grounds alleged in the termination petition that were pertinent to appellant,
only one ground must be proved to support termination. Lee v. Ark. Dep’t of Human Servs.,
102 Ark. App. 337, 285 S.W.3d 277 (2008). Counsel therefore discusses only the subsequent-
factors ground for termination, asserting that any argument as to this ground on appeal would
be wholly frivolous.
We agree with counsel that there was sufficient evidence presented to support the
termination of appellant’s parental rights based on the subsequent-factors ground found in
Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). As support for its finding on this
ground for termination, the circuit court noted appellant’s slow response to efforts at
treatment, her prior deceitfulness and lack of credibility with the court, and the fact that she
still wanted K.M. to have access to and know the Green family despite the fact that Green had
been convicted of raping her. The court found that, based on all of these factors, there were
no compelling reasons to delay permanency for K.M. The circuit court was not clearly
erroneous in finding that termination was warranted based on this evidence, which
demonstrated that appellant was incapable of remedying the issues that prevented the return
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of K.M. within a reasonable period of time as viewed from the child’s perspective. See Ark.
Code Ann. § 9-27-341(a)(3) (Supp. 2013). Thus, there would be no merit to an appeal on
this issue.
There was also clear and convincing evidence to support the circuit court’s finding that
it was in K.M.’s best interest for termination to occur. The court found that two-year-old
K.M. was adoptable based on the testimony of Hansberry that there would be no problem
finding an adoptive home for the child. The court also found that there would be potential
harm to K.M.’s health, safety, and welfare if she were to be returned to appellant’s custody
based on appellant’s lack of credibility and trustworthiness regarding whether she would
contact the Green family in the future. This finding was supported by appellant’s own
testimony at the termination hearing that she did not think that what Green did to her was
wrong and that she thought it would be good for K.M. to know the Green family. The court
thus found that it was highly probable that K.M. would be exposed to family dysfunction if
returned to appellant’s custody.
While the court was sympathetic to the fact that appellant is a young mother and
recognized that she had made recent progress in the case, the circuit court found that her
“eleventh-hour efforts” should not be given much weight, especially considering her
“significant and material credibility issues.” As the circuit court noted, a parent’s overtures
toward complying with the case plan and court orders following the permanency-planning
hearing and prior to the termination hearing are an insufficient reason not to terminate
parental rights. Ark. Code Ann. § 9-27-341(a)(4)(A) (Supp. 2013). The court also
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recognized that it might be in appellant’s best interest to have her daughter returned;
however, the court stated that it was charged with the responsibility to decide what was in
K.M.’s best interest, not appellant’s. Given the evidence presented in this case, the circuit
court’s finding that it was in K.M.’s best interest to terminate appellant’s parental rights was
not clearly erroneous, and there would be no merit to an appeal on this basis.
As counsel discusses in her brief, there were two additional rulings adverse to appellant
during the termination hearing, when the attorney ad litem objected to leading questions
asked of appellant by her trial counsel regarding whether (1) appellant’s mother was a good
role model and (2) appellant’s real motivation for her recent avoidance of the Green family.
Both of these objections were sustained by the circuit court. There would be no merit to an
appeal challenging either of these rulings, as the circuit court did not abuse its discretion in
not allowing leading questions during direct examination, and there was also no prejudice to
appellant based on the other evidence that was admitted regarding her family history and her
intentions toward the Green family. See Blakes v. Ark. Dep’t of Human Servs., 2010 Ark. App.
379, 374 S.W.3d 898.
Based on our review of the record and the brief submitted, we conclude that counsel
has complied with Ark. Sup. Ct. R. 6-9(i) and agree that the appeal is without merit.
Therefore, we affirm the termination order and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
VAUGHT and BROWN, JJ., agree.
Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect
Appellate Division, for appellant.
No response.
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