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ARKANSAS COURT OF APPEALS
DIVISIONS I, II, and IV
No. CV-17-418
Opinion Delivered: November 15, 2017
TIMOTHY BRINKLEY AND
DORLETHA BRINKLEY LAMBERT APPEAL FROM THE CRAIGHEAD
APPELLANTS COUNTY CIRCUIT COURT,
WESTERN DISTRICT
V. [NO. 16JV-15-173]
HONORABLE MELISSA BRISTOW
ARKANSAS DEPARTMENT OF RICHARDSON, JUDGE
HUMAN SERVICES AND MINOR
CHILDREN AFFIRMED IN PART; REVERSED
APPELLEES AND REMANDED IN PART
KENNETH S. HIXSON, Judge
Appellants Dorletha Brinkley Lambert and Timothy Brinkley appeal from the
termination of their parental rights to their three children, T.M.1, T.M.2, and T.M.3, who
are now ages nine, eight, and six. On appeal, Dorletha argues that there was insufficient
evidence to support the termination of her parental rights because there was a failure of
proof as to the statutory grounds found by the trial court. In his appeal, Timothy also
challenges the sufficiency of the evidence, arguing that there was insufficient proof of the
statutory ground found by the trial court pertaining to him. In addition, Timothy argues
that the trial court erred in proceeding on the petition to terminate his parental rights
because he was not appointed counsel until immediately before the termination hearing.
Finally, Timothy contends that it was error to terminate his parental rights because he was
not served with the case plan or relevant pleadings, and because his attendance or
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participation was not secured at any hearing before the termination hearing. We affirm the
termination of Dorletha’s parental rights. However, based on our conclusion that the trial
court clearly erred in finding sufficient proof of a statutory ground as to Timothy, we reverse
the termination of his parental rights.
We review termination of parental rights cases de novo. Mitchell v. Ark. Dep’t of
Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. 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 (Repl.
2015); 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 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).
This case was initiated by appellee Arkansas Department of Human Services (DHS)
when it filed a petition for emergency custody of the three children on May 11, 2015.
When the petition was filed, the children were living with Dorletha in Jonesboro, Arkansas,
and Timothy was incarcerated in Texarkana, Texas. An affidavit of a family service worker
stated that the three children had been left unsupervised and locked out of their house for
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more than two hours, and when Dorletha came home she told the worker that she had been
at her aunt’s house across town. Dorletha was arrested and charged with three counts of
first-degree endangering the welfare of a minor. On the same day the petition was filed,
the trial court entered an ex parte order for emergency custody of the three children.
The trial court entered a probable-cause order on May 12, 2015. In the probable-
cause order, the trial court ordered the parents to cooperate with DHS, comply with the
case plan, remain drug free, submit to a drug-and-alcohol assessment, and complete
parenting classes. The parents were also ordered to maintain stable housing and
employment, and to resolve all outstanding criminal matters.
On June 30, 2015, the trial court entered an adjudication order adjudicating the
children dependent-neglected. The goal of the case was reunification.
A review order was entered on November 3, 2015, wherein the trial court found
that Dorletha was in noncompliance with the case plan due to a positive drug screen and
her failure to attend drug treatment. The order indicated that Timothy did not appear at
the hearing, and the trial court found that Timothy had participated in none of the case
plan.
On April 28, 2016, the trial court entered a permanency-planning order finding that
Dorletha was in compliance with the case plan but needed to resolve her criminal matters,
including a DWI charge. The order again indicated that Timothy did not appear at the
hearing, and the trial court found that Timothy had participated in none of the case plan.
In the permanency-planning order, the goal of the case continued to be reunification with
Dorletha. However, in a fifteen-month-review order entered on July 21, 2016, the trial
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court authorized DHS to file a petition to terminate parental rights. In that order, it noted
that Timothy again did not appear, and under section 8, “The court finds that the parents
have participated in the case as follows,” the trial court noted that Dorletha was currently
incarcerated and facing criminal charges for both DWI and aggravated assault; Timothy was
not mentioned at all.
DHS filed a petition to terminate both parents’ parental rights on September 14,
2016. The termination hearing was scheduled for October 18, 2016. However, on the day
of the scheduled termination hearing, the trial court entered an order of continuance
wherein it rescheduled the hearing for November 18, 2016, appointed counsel to represent
Timothy at the hearing, and instructed counsel to arrange for Timothy’s transportation from
jail to the hearing. The termination hearing was held on November 18, 2016, with both
Dorletha and Timothy present and represented by counsel.
On March 2, 2017, the trial court entered an order terminating Dorletha’s and
Timothy’s parental rights to the 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 trial 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 Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) & (ii) (Repl. 2015). The trial
court also found, with respect to Dorletha, clear and convincing evidence of the following
two statutory grounds under subsection (b)(3)(B):
(i)(a) That 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 (12) months and,
despite a meaningful effort by the department to rehabilitate the parent and correct
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the conditions that caused removal, those conditions have not been remedied by the
parent.
....
(vii)(a) That other factors or issues arose subsequent to the filing of the original
petition for dependency-neglect that demonstrate that placement of the juvenile in
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 the placement of the juvenile in the custody
of the parent.
The trial court found that Dorletha had been incarcerated seventeen times during the case,
had consistently minimized her arrests, and had a long and unresolved history of alcohol
abuse. As to Timothy, the trial court found under subsection (b)(3)(B)(iv) that he had
abandoned the juveniles.
DHS caseworker Tina Green testified at the termination hearing. Ms. Green testified
that Dorletha has had issues with alcohol abuse throughout the case, which was in large part
the reason for Dorletha being arrested and incarcerated seventeen times for various offenses.
According to Ms. Green, in the past several months Dorletha had been convicted of DWI,
driving on a suspended license, and two counts of aggravated assault. Dorletha was last
arrested two weeks before the termination hearing, and she remained in jail awaiting transfer
to a court-ordered inpatient treatment facility. Ms. Green indicated that Dorletha had
completed a previous treatment program, but with unsuccessful results, and that Dorletha
minimized and made excuses for her criminal troubles.
Ms. Green stated that, after the children were removed, Dorletha remarried and now
has stable housing. Ms. Green further acknowledged that Dorletha had been fairly
compliant with the case plan as far as “checking the boxes,” but that she had not remained
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sober or resolved her criminal issues. Ms. Green stated that one of the assault charges against
Dorletha arose from an incident where Dorletha had cut her husband with a razor.
Ms. Green also believed that Dorletha has mental-health issues. Ms. Green was concerned
that the children’s safety and welfare would be at risk if they were returned to their mother’s
custody, and she testified that the children are adoptable.
Ms. Green testified that Timothy has been incarcerated from the outset of the case,
and she was not aware of him ever asking for DHS services or asking to visit the children.
The only contact Ms. Green had with Timothy was through a letter he sent after being
served with the termination petition, wherein he asked to be present for the termination
hearing. Ms. Green stated that the children could not be safely placed with either parent
due to both parents’ incarceration, and she thought termination of both parents’ parental
rights was in the best interest of the children.
Dorletha testified and acknowledged being incarcerated, with her most recent charge
being public intoxication. Dorletha testified that after her children were removed from her
home she “started drinking real heavy and getting into trouble because it felt like [she] lost
everything.” However, Dorletha stated that she loves her children and that, were she not
incarcerated, they could be returned to her.
Timothy testified that he was incarcerated in September 2014 for a battery conviction
and that his earliest release date would be in September 2017, which was ten months after
the termination hearing. Timothy stated that he was served with a copy of the original
emergency petition in prison on May 21, 2015. However, Timothy testified that he was
never served with, nor did he ever receive, any order, notices, or any type of
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communication from DHS or the court for the next fifteen-plus months. Timothy testified
that he was not provided a copy of the case plan or notice of any of the interim hearings,
and that he was never offered any services by DHS. The first time he received any
communication from DHS was when he was served with the petition for termination of his
parental rights on or about September 15, 2016. Timothy stated that, during that fifteen-
month period, he was indigent and that nobody had asked him if he wanted a lawyer to
represent him. After Timothy was served with the petition for termination, he wrote a
letter requesting counsel and was appointed counsel. Timothy stated that he had not
abandoned his children and did not want his parental rights terminated.
We first address Dorletha’s argument on appeal, which is that the trial court clearly
erred in finding statutory grounds to terminate her parental rights. The first ground found
by the trial court was that, under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), the children
were adjudicated dependent-neglected and had been out of Dorletha’s custody for twelve
months, and that despite meaningful DHS efforts to rehabilitate the parent and correct the
conditions that caused removal, those conditions had not been remedied by the parent.
Dorletha argues that this ground was not sufficiently proved because there was a lack of
evidence that she failed to remedy the conditions causing removal. Dorletha asserts that the
condition that caused removal was inadequate supervision of the children, while the proof
supporting the trial court’s order was not inadequate supervision but rather Dorletha’s
alcohol abuse and frequent incarcerations, which were problems unrelated to the condition
that caused removal.
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The remaining ground found by the trial court was that, under Arkansas Code
Annotated section 9-27-341(b)(3)(B)(vii)(a), other factors or issues arose demonstrating that
the return of the children to Dorletha was contrary to the children’s welfare, and that despite
the offer of appropriate family services, the parent manifested the incapacity or indifference
to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances which
prevent the return of the juveniles to the parent’s custody. Dorletha contends that the trial
court erred in finding that this ground was satisfied because DHS failed to prove that it
offered appropriate family services for Dorletha’s mental-health issues, which she claims
contributed significantly to her persistent criminal troubles. For these reasons, Dorletha
submits that the order terminating her parental rights should be reversed.
Only one ground is necessary to terminate parental rights. Wafford v. Ark. Dep’t of
Human Servs., 2016 Ark. App. 299, 495 S.W.3d 96. We uphold the termination of
Dorletha’s parental rights based on our conclusion that the trial court did not clearly err in
finding that DHS proved the “other factors” ground under subsection (b)(3)(B)(vii)(a) of
the termination statute.
In this case there can be no doubt that other factors arose after the children were
removed from Dorletha’s custody, which included her persistent alcohol abuse, even after
completing alcohol rehabilitation, and her ongoing criminal troubles that resulted in
seventeen incarcerations during the case. Dorletha’s incarcerations compromised her ability
to visit the children, and she remained in jail at the time of the termination hearing.
Dorletha does not appear to contest the sufficiency of the proof as to these other factors that
showed the juveniles could not be safely returned to her custody, but instead claims that
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DHS failed to offer appropriate services. We cannot agree. The record demonstrates that
Dorletha did receive DHS services throughout this case, including a rehabilitation program
that was unsuccessful in remedying her problem with alcohol. The testimony of the
caseworker demonstrated that Dorletha’s alcohol abuse and related criminal problems were
the factors preventing the return of the children to her custody, and the trial court found
that Dorletha manifested the incapacity or indifference to remedy these issues. Although
there was some testimony suggesting that Dorletha also had mental-health issues, these issues
were not the basis for the termination. We hold that the trial court did not clearly err in its
finding that appropriate family services were offered to Dorletha, and we affirm the
termination of her parental rights based on the “other factors” ground.
We now turn to Timothy’s appeal of the termination of his parental rights. Timothy
argues that the trial court clearly erred in finding that he had abandoned his children, which
was the only statutory ground pled in support of DHS’s termination petition. 1 Timothy
also argues that his termination should be reversed because he was not appointed counsel
until shortly before the termination hearing, and because DHS failed to serve him with the
case plan or any pleadings (other than the initial dependency-neglect petition and
termination petition) or secure his attendance or participation in any of the hearings before
1
DHS did not allege in its petition the “imprisonment” ground under Arkansas Code
Annotated section 9-27-341(b)(3)(B)(viii), which allows for termination when the parent is
sentenced in a criminal proceeding for a period of time that would constitute a substantial
period of the juvenile’s life. At the termination hearing, DHS moved to allow the pleadings
to conform with the evidence to permit it to rely on the unalleged “imprisonment” ground
to justify termination. However, the trial court denied the motion. Therefore, our review
is limited to the only statutory ground alleged by DHS in the petition and found by the trial
court, which was abandonment.
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the termination hearing. We agree on this record that the trial court clearly erred in finding
that Timothy had abandoned the children as defined by Arkansas Code Annotated section
9-27-303(2)(A), and therefore we reverse the termination of his parental rights on that basis.
Arkansas Code Annotated section 9-27-303(2)(A) contains the definition of
“abandonment,” and it provides:
(2)(A) “Abandonment” means:
(i) The failure of the parent to provide reasonable support for a juvenile and to
maintain regular contact with a juvenile through statement or contact when the
failure is accompanied by an intention on the part of the parent to permit the
condition to continue for an indefinite period in the future;
(ii) The failure of a parent to support or maintain regular contact with a child
without just cause; or
(iii) An articulated intent to forego parental responsibility.
The evidence in this case showed that Timothy was in prison when the children
were taken into DHS custody and remained in prison throughout the entirety of this
proceeding. Timothy did receive notice of the emergency-custody petition while in prison.
However, there is no evidence that Timothy was served with the emergency order of
custody as required by Arkansas Code Annotated section 9-27-314(c)(1)(A). 2 So the only
2
The dissenting opinion suggests that Timothy did receive the emergency-custody
order. However, from our review of the record and the briefs, we conclude otherwise.
The summons sent to Timothy at the beginning of the case states that “a lawsuit has been
filed against you” with proof that he was served with the summons and complaint. The
proof of service does not indicate that Timothy received the emergency order, which would
typically appear at the “other” section of the document, which was left blank. At trial,
Timothy testified that he received the petition. In appellant’s brief, he states that he only
received a copy of the petition and not the order. And this does not appear to be disputed
by DHS, who states in its brief that “Brinkley’s failure to visit the children occurred despite
being on notice that the Department was requesting custody of his children. He was served
with a summons and petition on June 2, 2015, which clearly explained that ‘the children were
removed from the physical custody of Lambert.’ Brinkley’s own testimony further
confirmed that he received the petition.” (emphasis ours).
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information that the record reflects that Timothy had was that a 72-hour hold of the children
had been taken, with no proof that there had been any court order of removal. Subsequent
to that notice, Timothy received no assistance, guidance, or even minimal contact from
DHS as to what he needed to do to comply with the case plan or contact his children for
over fifteen months. In fact, it is undisputed that Timothy never even received the case plan,
and that despite that omission, the trial court’s orders repeatedly found him to be in
noncompliance with a case plan of which he had no knowledge. By the DHS caseworker’s
own testimony, DHS had no contact with Timothy at all throughout the case and offered
no services.
Although appropriate services is not an element of the statutory abandonment
ground, we conclude that the complete lack of services, communication, or guidance by
DHS in this case is relevant in deciding whether Timothy abandoned his children.
In Friend v. Arkansas Department of Human Services, 2009 Ark. App. 606, 344 S.W.3d
670, we wrote:
Although imprisonment imposes an unusual impediment to a normal parental
relationship, it is not conclusive on the issue of termination. Crawford v. Ark. Dep’t
of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Nevertheless, a parent’s
imprisonment does not toll his responsibilities toward his child. Malone v. Ark. Dep’t
of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Tolling a parent’s
obligations to comply with reunification orders while he is in jail would be contrary to the
goal of the juvenile code to provide permanency for the child. Id.; see also Zgleszewski
v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976). The appropriate inquiry where a
parent has been ordered to comply with a court’s reunification orders and is incarcerated is
whether the parent utilized those resources available to maintain a close relationship with the
child. Malone, supra.
2009 Ark. App. 606, at 12−13, 344 S.W.3d at 677 (emphasis added.) Although Zgleszewski,
supra, cited above, involved the adoption of a child by a stepparent and was decided under
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prior law, the supreme court in that case characterized abandonment as an indication that
the parent deserted, forsook entirely, or relinquished all connection with or concern in the
child.
In Bradbury v. Arkansas Department of Human Services, 2012 Ark. App. 680, 424
S.W.3d 896, the appellant’s parental rights were terminated based on the trial court’s finding
that he had abandoned the child. Even though the appellant had been incarcerated during
the majority of the case, we stated that whether his incarceration constituted abandonment
under the statute was questionable. More importantly, however, we affirmed on the basis
that DHS had also alleged the “other factors” statutory ground and that, although the trial
court made no specific finding on this ground, it was nonetheless proved. In holding in our
de novo review that the “other factors” ground was proved, we relied on evidence that the
appellant had failed to comply with the case plan or avail himself of DHS services, and that
he had an explosive temper and was facing a possible prison sentence of thirty years.
That cannot be said in the present case. In stark contrast to the appellant in Bradbury,
Timothy received no services from DHS, nor was he even provided with the case plan or
any orders of the court, so it cannot be said that he failed to avail himself of services or was
in willful noncompliance. Furthermore, unlike Bradbury, in this case the only statutory
ground alleged by DHS and found by the trial court was that Timothy had abandoned his
children. 3 The trial court’s findings in the termination order in support of abandonment
were as follows:
3
See footnote 1.
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The father has had no contact with the department during the pendency of this case,
and he has not visited with the juveniles during that period. The father had no just
cause. No evidence that he ever requested counsel prior to the TPR, or that he
requested services at any time.
Limiting our analysis to this single ground, as we must, we conclude that the trial court
clearly erred in this regard. Timothy testified that, although he was incarcerated during the
entire proceedings, he did not abandon his children, and during his incarceration he was
not included as a participant in the case despite the fact that DHS had actual knowledge of
his location and address. We hold that this does not rise to the level of abandonment under
a clear-and-convincing standard as defined by Arkansas Code Annotated section 9-27-
303(2)(A), and therefore we reverse the termination of Timothy’s parental rights. 4
Having concluded that there was a sufficient statutory ground to support the
termination of Dorletha’s parental rights, we affirm the trial court’s termination order as to
her. Based on our holding that the trial court clearly erred in finding that the ground of
abandonment alleged against Timothy was proved by clear and convincing evidence, we
reverse the termination of Timothy’s parental rights.
Affirmed in part; reversed and remanded in part.
ABRAMSON, VIRDEN, GLADWIN, GLOVER, and MURPHY, JJ., agree.
KLAPPENBACH, VAUGHT, and BROWN, JJ., dissent.
LARRY D. VAUGHT, Judge, dissenting. I join the majority opinion as to the
appeal brought by the mother, Dorletha Brinkley, but I dissent because I would also affirm
as to the father, Timothy Brinkley.
4
Because we hold that there was insufficient evidence to support the termination, we
need not specifically address Timothy’s remaining arguments.
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On May 11, 2015, the appellants’ three minor children were removed from
Dorletha’s custody after she left them unsupervised. Timothy was incarcerated at the time
and remained so throughout the case. It is undisputed that Timothy was adequately served
with the petition for emergency custody. 5 It is further undisputed that Timothy did nothing,
and the case proceeded without his presence or involvement until (DHS) filed a motion to
terminate, at which time he was appointed counsel. The court terminated Timothy’s
parental rights based on the finding that he had abandoned the juveniles.
The issue on which the majority and I disagree is whether Timothy’s incarceration,
combined with DHS’s failure to have any contact with him throughout the case, excuses
his complete lack of interest in his children. I maintain that it does not and would affirm the
circuit court’s abandonment finding. Despite knowing that he has children and that those
children had been taken into DHS custody, Timothy did nothing for approximately
eighteen months. He did not contact DHS or the court; did not request visitation or other
services; did not request an attorney or try to participate in the case; and most importantly,
for more than a year and a half, Timothy made no effort to contact his children.
Under the statute, abandonment can be established by “[t]he failure of a parent to
support or maintain regular contact with a child without just cause.” Ark. Code Ann. § 9-
27-303(2)(A)(Repl. 2015). Here, the majority accepts the circuit court’s finding that
Timothy had no contact with his children. The only issue we must resolve is whether
Timothy’s failure to maintain any contact with his children was “without just cause.”
5
While the majority and I disagree on whether the evidence also demonstrates that
Timothy received the court’s initial ex parte order granting emergency custody, that issue
does not ultimately matter in determining whether he abandoned his children.
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While the majority acknowledges that a finding that DHS provided “appropriate
services is not an element of the abandonment statutory ground,” it goes on to find that the
lack of such services is “relevant in deciding whether Timothy abandoned his children.” I
disagree. DHS’s failure to provide appropriate services (something that is not required in an
abandonment case) has no bearing on whether a parent attempts to contact his or her
children. The majority has not pointed to, and cannot point to, any particular services, the
lack of which prevented Timothy from writing a letter or sending a birthday card to his
children.
Although it is clear that Timothy made no effort whatsoever to maintain a
relationship with his children, the majority holds that “this does not rise to the level of
abandonment under a clear and convincing standard.” I fail to see how Timothy could have
done any less. Therefore, I fear that the majority is setting the precedent that an inmate can
never legally abandon his or her child. Incarceration does not make a person helpless, and
Timothy has never claimed that his incarceration or lack of DHS services prevented him
from attempting to contact his children. This decision devalues the efforts incarcerated
parents take every day to maintain the bond with their children.
It also defies legislative intent. The practical effect of the majority’s decision will be
to require DHS to provide family services to incarcerated parents who have demonstrated
no interest in maintaining a parent-child relationship. The Arkansas General Assembly chose
not to include this requirement. While several other statutory grounds for termination
require a showing that DHS provided “meaningful efforts,” the abandonment ground does
not. It is reasonable to infer that the Arkansas General Assembly determined that it would
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be a waste of time and resources to require DHS to provide expensive and time-consuming
family services to a parent who shows no interest in being a parent. I dissent from the
majority’s decision because it effectively grafts a “meaningful efforts” requirement onto the
abandonment ground in defiance of legislative intent and at the expense of the children at
the heart of all such cases who deserve permanency.
KLAPPENBACH and BROWN, JJ., join.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant Dorletha
Brinkley Lambert.
Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Timothy
Brinkley.
Mary Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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