Dunbar v. Arkansas Department of Human Services
2016 Ark. App. 472
| Ark. Ct. App. | 2016Background
- DHS opened a protective-services case after discovering school truancy and reported concerns about Xazevier Dunbar’s mental-health history, prior DHS involvement, and incidents of aggression.
- Ex parte emergency custody was ordered May 15, 2015; children placed in DHS custody and later adjudicated dependent-neglected (July 20, 2015).
- Prior psychiatric evaluation (from an earlier DHS case) diagnosed schizoaffective disorder and borderline intellectual functioning; the trial court found similar behavior in the current case.
- Appellant displayed repeated combative, threatening, and disruptive conduct toward DHS staff and at hearings; visitation was suspended after safety concerns.
- DHS petitioned to terminate parental rights alleging subsequent factors making return contrary to children’s welfare, aggravated circumstances (unlikely reunification), and abandonment as to one father; the trial court found two statutory grounds proven by clear and convincing evidence and terminated mother’s rights.
- Appointed counsel filed a Linker-Flores no-merit brief and motion to withdraw; appellant filed pro se points. The appellate court reviewed the record and affirmed and granted counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument (Dunbar) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether DHS had an appropriate placement plan/adoptability | Mother sought reunification and restoration of visitation | DHS argued children were adoptable and needed permanency; placement plan appropriate | Court: DHS presented clear and convincing evidence children were adoptable and placement plan appropriate — affirmed |
| Whether returning children posed potential harm | Mother denied allegations of neglect and harm (claimed school absences exaggerated) | DHS pointed to prior neglect, mother’s mental-health instability, violent outbursts, and supervised/suspended visitation | Court: Trial court’s potential-harm finding supported by clear and convincing evidence — affirmed |
| Whether statutory grounds for termination (subsequent factors; aggravated circumstances) were proven | Mother argued she was improving and sought another chance | DHS relied on subsequent dangerous/erratic conduct, prior psychiatric findings, history of DHS involvement making reunification unlikely | Court: Both subsequent-factors and aggravated-circumstances grounds proved by clear and convincing evidence — affirmed |
| Whether counsel properly moved to withdraw under Linker-Flores (no-merit) | Mother filed pro se points but did not identify reversible error | Appointed counsel argued no meritorious appellate issues after conscientious review | Court: Counsel complied with no-merit procedure; appellate review found appeal wholly without merit; withdrawal granted |
Key Cases Cited
- Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (Ark. 2004) (procedure for counsel to withdraw on first appeal in TPR cases after a conscientious record review)
- Lewis v. Arkansas Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (Ark. 2005) (appellate scope in reviewing no-merit withdrawals where prior records informed trial court’s decision)
- Posey v. Arkansas Dep’t of Human Servs., 370 Ark. 500, 262 S.W.3d 159 (Ark. 2007) (appellate court should not reweigh evidence or substitute its credibility determinations for the trial court)