Lunon v. Ark. Dep't of Human Servs.
2016 Ark. App. 483
| Ark. Ct. App. | 2016Background
- DHS removed Lunon’s daughters M.L. and H.A. in Nov. 2013 after H.A. (age 3) was punched in the face; Lunon previously had parental rights to an older child involuntarily terminated.
- DHS filed a dependency-neglect petition; the court adjudicated the children dependent-neglected in Feb. 2014 based on the abuse and risk to the sibling.
- The circuit court initially set reunification as the goal but later changed the goal to termination of parental rights.
- DHS alleged multiple statutory grounds for termination, including Lunon’s prior involuntary termination of parental rights to a sibling.
- The court found by clear and convincing evidence that the statutory ground (prior involuntary termination) was met, the children were adoptable, Lunon would pose potential harm if custody were returned, and Lunon failed to accept responsibility or comply with the case plan.
- Lunon appealed pro se; appointed counsel filed a no-merit brief and moved to withdraw under Ark. Sup. Ct. R. 6-9(i); the Court of Appeals affirmed and granted counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument (Lunon) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether statutory grounds for termination were proven | Prior involuntary termination does not justify a new termination | Prior involuntary termination as to a sibling is a statutory ground under § 9-27-341(b)(3)(B)(ix)(a)(4) | Court: Ground proved by clear and convincing evidence |
| Whether termination was in children’s best interest | Return to Lunon would be better; requests full evidentiary re-hearing | Children are adoptable; Lunon poses risk, failed case-plan, and did not accept responsibility | Court: Termination is in the children’s best interest |
| Validity of counsel’s no-merit brief and motion to withdraw | Counsel should remain because Lunon is entitled to representation on appeal and Anders-like protection | No-merit brief complied with Ark. Sup. Ct. R. 6-9(i); record supports no meritorious appellate issue | Court: No-merit brief adequate; counsel’s motion to withdraw granted |
| Appellant’s request for new hearing / complain about hearsay | Requested a new hearing and fuller fact presentation | Appellate review examines the full trial record; appellant already had a full hearing | Court: No basis for new hearing; pro se points lack merit |
Key Cases Cited
- T.J. v. Arkansas Department of Human Services, 329 Ark. 243 (1997) (two-step test for termination: parent unfitness and best interest).
- Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131 (2004) (procedures for no-merit pleadings in DHS appeals).
- Smith v. Arkansas Department of Human Services, 431 S.W.3d 364 (2013) (discussion of best-interest considerations in termination cases).
- Cheney v. Arkansas Department of Human Services, 396 S.W.3d 272 (2012) (Rule 6-9(i) no-merit brief requirements and appellate review).
- Anders v. California, 386 U.S. 738 (1967) (procedural protections when appointed counsel seeks to withdraw for lack of meritorious issues).