Harris v. Ark. Dep't of Human Servs.

Cite as 2014 Ark. App. 447

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-215

TARA BROOKS HARRIS Opinion Delivered September 3, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
TENTH DIVISION [NO. JN-13-1027]

ARKANSAS DEPARTMENT OF HONORABLE JOYCE WILLIAMS
HUMAN SERVICES and MINOR WARREN, JUDGE
CHILD
APPELLEES AFFIRMED; MOTION TO
WITHDRAW GRANTED

KENNETH S. HIXSON, Judge

Appellant Tara Harris appeals from the termination of her parental rights to her three-

year-old daughter, A.A.1 Tara’s attorney has filed a no-merit brief and a motion to withdraw,

stating that the appeal is without merit and that she should be relieved as counsel. We affirm.

Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194

S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), appellant’s attorney has

addressed all of the adverse rulings made at the hearing from which the appeal arose,

and explained why each adverse ruling is not a meritorious ground for reversal. Tara was

provided with a copy of her counsel’s brief and motion and informed of her right to file pro

se points. Tara has submitted a list of pro se points, which essentially amounts to a lengthy

1
The parental rights of A.A.’s putative father were also terminated, but the putative
father has not appealed.
Cite as 2014 Ark. App. 447

narrative challenging the sufficiency of the evidence supporting the termination of her parental

rights.

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

Human Servs., 2014 Ark. App. 199. 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. 2013); 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 factfinder 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.A. initially came into the custody of the Arkansas Department of Human Services

in February 2012, when she was six months old. At that time, A.A. was removed from Tara’s

custody based on a finding of maltreatment and inadequate supervision after A.A. was found

to have facial bruising, a fractured femur, and multiple rib fractures. A.A. was placed in foster

care for more than a year, during which time Tara received extensive DHS services. A.A. was

returned to Tara’s custody on April 25, 2013.

Just five weeks later, on June 3, 2013, DHS filed a motion for emergency custody of

A.A. based of life-threatening injuries to the child. A.A. had been taken to the hospital after

having seizures, and she was found to have intracranial hemorrhaging as well as bruising all

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Cite as 2014 Ark. App. 447

over her body. A.A. was placed on a mechanical ventilator and the medical staff was unsure

whether she would survive. Tara reported that she had left the child with her husband while

she was at work, and neither Tara nor her husband gave any explanation consistent with

A.A.’s injuries. On the same day the petition was filed, the trial court entered an ex parte

order for emergency DHS custody.

On August 27, 2013, the trial court entered an order adjudicating A.A. dependent-

neglected. In the adjudication order, the trial court credited the testimony of A.A.’s doctor

given at the adjudication hearing, wherein the doctor stated that A.A.’s extensive injuries were

consistent with child abuse. The trial court found that A.A. was at substantial risk of serious

harm as a result of physical abuse and medical neglect. The trial court further found that Tara

had subjected A.A. to aggravated circumstances because A.A. had been chronically abused and

subjected to extreme and repeated cruelty.

DHS filed a petition to terminate Tara’s parental rights on September 5, 2013. The

termination hearing was held on November 20, 2013.

On December 9, 2013, the trial court entered an order terminating Tara’s parental

rights. The trial court found by clear and convincing evidence that termination of parental

rights was in A.A.’s best interest, and the court specifically considered the likelihood of

adoption, as well as the potential harm of returning the child to the custody of her mother as

required by Ark. Code Ann. § 9-27-341(b)(3)(A). The trial court also found clear and

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

(vi)(a) The court has found the juvenile or a sibling dependent-neglected as a result
of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual

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Cite as 2014 Ark. App. 447

exploitation, any of which was perpetrated by the juvenile’s parent or parents or step-
parent or step-parents.

....

(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 juvenile has been abandoned, chronically abused, subjected to extreme or
repeated cruelty, sexually abused, or 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[.]

In the no-merit brief submitted to this court, Tara’s counsel accurately explains that

there can be no meritorious argument challenging the sufficiency of the evidence supporting

termination of Tara’s parental rights. There can be no challenge to the statutory grounds of

aggravated circumstances because this finding was made by the trial court in its adjudication

order, which was not appealed. In termination cases, a challenge to a finding of abuse or

aggravated circumstances must be made, if at all, in an appeal from the adjudication hearing.

Hannah v. Ark. Dep’t of Human Servs., 2013 Ark. App. 502. Nor could a merit argument be

raised on the best-interest requirement. The evidence demonstrated that A.A. would be at

significant risk of potential harm if returned to Tara’s custody given that A.A. was severely

injured at the age of six months while in Tara’s care, prompting A.A.’s removal by DHS, and

shortly after A.A. was placed back with Tara she was critically injured and suffered irreversible

neurological deficits. Dr. Paul DeYoub performed a psychological evaluation and determined

that A.A. would be in grave danger in Tara’s care because Tara was incapable of protecting

her child from serious injury or death, and Dr. DeYoub recommended that A.A. never be

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Cite as 2014 Ark. App. 447

returned to Tara. Moreover, there was testimony at the termination hearing that A.A. was

adoptable. On this record, the trial court’s decision to terminate Tara’s parental rights was not

clearly erroneous, and we agree with appellant’s counsel that any appeal challenging the

sufficiency of the evidence would be wholly without merit.

As Tara’s counsel correctly asserts in her brief, the only other adverse ruling at the

termination hearing had no bearing on the ultimate issue of termination and could not support

a merit appeal. After the trial court issued its ruling of termination from the bench near the

end of the hearing, the trial court permitted Tara’s mother to be heard over Tara’s objection

that her mother lacked standing to speak to the court. Tara’s mother then let the court know

that she disagreed with the termination, that she worried about the safety of A.A. in an

adoptive home, and that she wished A.A. could remain in foster care longer so she could seek

placement of her. These comments by Tara’s mother caused Tara no prejudice, and the trial

court’s adverse ruling in this regard could be no basis for reversal.

After examining the record, Tara’s counsel’s no-merit brief, and Tara’s pro se points,

we have determined that there has been compliance with our no-merit rules and that this

appeal is without merit. Accordingly, we affirm the order terminating Tara’s parental rights

and grant her attorney’s motion to be relieved from representation.

Affirmed; motion to withdraw granted.

WYNNE and BROWN, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

No response.

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Cite as 2014 Ark. App. 447