Washington v. Ark. Dep't of Human Servs.
2014 Ark. App. 13
Ark. Ct. App.2014Background
- Terry Washington appealed the Craighead County Circuit Court’s June 2013 order terminating his parental rights to his son TW (born Mar. 2010).
- DHS sought termination after the children were adjudicated dependent-neglected in Apr. 2012 following the mother’s drug use and incarceration; DHS filed termination petitions in Jun. 2012.
- Two statutory grounds were alleged against Washington: (1) "other issues or factors" showing incapacity or indifference despite services, and (2) a substantial period of incarceration that would span a large part of TW’s life.
- Washington was incarcerated for substantial periods (notably since Oct. 2012), had no stable income or housing, had not resolved criminal issues, and had not formally established paternity until Feb. 2013.
- The trial court found TW adoptable, concluded termination was in the child’s best interest, and found DHS proved at least one statutory ground by clear and convincing evidence; counsel filed a no-merit brief and moved to withdraw.
- The Arkansas Court of Appeals concluded appellate counsel failed to show the appeal would be frivolous, denied the motion to withdraw, and ordered rebriefing.
Issues
| Issue | Plaintiff's Argument (Washington) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether appellate counsel properly moved to withdraw via a no-merit brief | Counsel contended no arguable issues existed and sought to be relieved | DHS implicitly relied on record showing statutory grounds and best interest findings | Court denied withdrawal; ordered rebriefing because no-merit requirements not satisfied |
| Whether clear and convincing evidence supported statutory grounds (other issues/factors) | Washington argued DHS failed to include him in the case plan and failed to provide adequate services | DHS relied on evidence of instability, lack of income/housing, unresolved criminal issues, and services offered/attempted | Court found counsel failed to explain why record supported this ground; rebriefing ordered to address it |
| Whether clear and convincing evidence supported statutory ground of substantial incarceration | Washington asserted incarceration period would not justify termination (cursory) | DHS argued Washington’s repeated and lengthy incarcerations would constitute a substantial period of the child’s life | Trial court found incarceration sufficient; appellate court noted counsel’s discussion was cursory and inadequate |
| Whether termination was in child’s best interest (adoptability, stability) | Washington asserted the ability to parent upon release and participation in some services | DHS pointed to adoptability, foster placement with half-sibling, lack of stable plan from Washington, and harm risk if returned | Trial court found termination in TW’s best interest; appellate court deferred to fact-finder on credibility but required fuller appellate analysis |
Key Cases Cited
- Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131 (Ark. 2004) (standard and procedure for counsel withdrawal in termination appeals)
- Dinkins v. Arkansas Department of Human Services, 344 Ark. 207 (Ark. 2001) (de novo review in termination-of-parental-rights cases)
- Anderson v. Douglas, 310 Ark. 633 (Ark. 1992) (definition of clear and convincing evidence)
- J.T. v. Arkansas Department of Human Services, 329 Ark. 243 (Ark. 1997) (appellate review asks whether trial court’s clear-and-convincing finding is clearly erroneous)
- Camarillo-Cox v. Arkansas Department of Human Services, 360 Ark. 340 (Ark. 2005) (case-plan compliance not dispositive; focus on parent’s stability and ability)
- Moiser v. Arkansas Department of Human Services, 95 Ark. App. 32 (Ark. Ct. App. 2006) (credibility determinations reserved to the trial court)