dissenting.
I cannot in good conscience agree that a merit appeal of the termination of Michael Tenny’s parental rights to A.T., born March 12, 2009, would be wholly frivolous. 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), require an explanation of why each adverse ruling would not be a meritorious ground for reversal. The brief before me utterly fails in this regard.
First, Tenny’s appellate counsel does not discuss the trial court’s “reasonable efforts” finding. Tenny was imprisoned during the majority of this case. An ADHS witness testified at the termination hearing that ADHS was unable to provide reunification services to Tenny, despite the fact that the Washington County Circuit Court twice denied ADHS’s motion to terminate reunification services. For Tenny, there was no staffing, no case plan, no effort to arrange visitation, and no reunification services. Ultimately, the trial court forgave this flagrant disregard of its orders and blamed Tenny for ADHS’s failure to provide services. I cannot conceive of how this finding would not be worthy of challenging in a merit brief. It is worth |,¡noting that, without ADHS assistance, Tenny underwent substance-abuse treatment and attempted to take parenting classes on his own. Whether Tenny manifested the incapacity or indifference to rehabilitate his circumstances in light of his efforts in prison could certainly support a nonfrivolous appeal.
Second, at the August 18, 2010 termination hearing, the only evidence regarding the expected duration of Tenny’s incarceration came from Tenny himself, who testified that he had already been approved for parole and would be released during the next month. The trial court apparently found this testimony to be credible, and our clerk’s unsuccessful attempt to furnish Tenny with a copy of appellate counsel’s brief at the Arkansas Department of Correction proved that Tenny’s testimony was truthful. Accordingly, the validity of the trial court’s termination of Tenny’s parental rights on the grounds stated in Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii) (Repl. 2009), that Tenny would be incarcerated for a “substantial period of the juvenile’s life,” is worthy of a merit brief. Significantly, the trial court did not make an adequate finding on this element; it merely stated that Tenny had criminal “issues” to deal with — he would face an additional two years’ probation. I submit that a merit brief on how this finding falls short of the requirements of Arkansas Code Annotated section 9 — 27—341(b)(3)(B)(vii) would not be wholly frivolous. In fact, I cannot see how Tenny’s case is different in any material way from a similarly situated appellant in Fredrick v. Arkansas Department of Human Services, 2009 Ark. App. 652, 2009 WL 3208740, where we ordered a merit brief. This court should be bound under the law to treat similarly situated litigants the same.
|7Finally, the trial court’s finding regarding the exposure of the children to the meth lab — which the majority has chosen to cite — does not survive close scrutiny. The sole evidence on this issue came from an affidavit attached to ADHS’s petition for emergency custody. The trial court found that Tenny “expose[d] the child to aggravated circumstances and extreme cruelty in having her in a house with a humongous meth lab.” However, there was no evidence that the meth lab was operational; the affiant merely stated that the drug task force “discovered multiple components of a meth lab.” There is also no evidence that the child was exposed to any chemicals; the child was examined and drug-tested at Washington Regional Medical Center, and no evidence of methamphetamine or precursors were reported as being found in the child’s system. In fact, after the examination, the child was declared “healthy.” While it is true that the child’s hair follicle test revealed that the child had been exposed to marijuana, there is no evidence that it was Tenny, and not the child’s mother, Jennifer Ralston, or some other person, who exposed the child to the drug. Given Ralston’s history of drug addiction and the tender age of the child at the time she entered ADHS custody (she was only four months old), it is even possible that the child’s exposure to marijuana occurred while she was in útero. In short, these key findings are almost entirely speculation and conjecture. Again, I submit that a merit brief in which the validity of these findings is discussed would not be wholly frivolous.
Certainly I do not condone mistreatment of children in any way. However, to fulfill our obligations as appellate judges, we must look at the facts of this case dispassionately. Here, |8we have a natural parent who accompanied the mother of his child to a house belonging to her relatives. Present in the house were components used to manufacture methamphetamine. Tenny is now out on parole, under the supervision of the probation department. ADHS gave him no opportunity to regain custody of his child, perhaps in no small part because, as the majority noted, the child was “a friendly, easy baby who was favorable for adoption statistically because she was healthy, Caucasian, and under the age of two.”