JENNIFER BROWN v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILD
No. CV-15-52
ARKANSAS COURT OF APPEALS, DIVISION II
August 26, 2015
2015 Ark. App. 425
PHILLIP T. WHITEAKER, Judge
APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. JV-2014-631], HONORABLE VICKI SHAW COOK, JUDGE. MOTION TO WITHDRAW DENIED; REBRIEFING AS A MERIT APPEAL ORDERED.
The Appellant, Jennifer Brown, is the mother to daughter, S.B. She appeals the Garland County Circuit Court‘s order terminating her parental rights. Her attorney has filed a motion to be relieved from representation and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and
The next day, the appellant contacted DHS requesting help. The appellant informed the family service worker that she was concerned for S.B.‘s safety because S.B.‘s homeless and drug-addicted father, Frederick Brown, had taken the child from the home with nothing but a bottle and the clothes and diaper the child was wearing. The family service worker located Mr. Brown and the child at his sister‘s house. He tested positive for methamphetamine, amphetamine, cocaine, and THC. At that time, the family service worker removed the child and instituted a seventy-two-hour hold.
After the child had been removed, the family service worker obtained additional information on the appellant, including her social security number. A subsequent CHRIS check revealed that appellant had a history with DHS, including an involuntary termination of another child.
An ex parte order for emergency custody was entered on September 9, 2014, and counsel was appointed. A probable-cause order was entered the next day. The only services
On September 11, 2014—less than one week after removal—DHS filed a petition to terminate the appellant‘s parental rights. As the grounds for termination, DHS alleged that, in September 2009, her parental rights to one of S.B.‘s siblings had been involuntarily terminated. DHS did not seek to terminate the parental rights of Frederick Brown at that time.
The adjudication and termination hearings were held simultaneously on October 23, 2014. At the hearing, counsel for appellant attempted to introduce evidence that S.B. was not born with drugs in her system in contrast to the children for whom appellant‘s previous rights had been terminated. The trial court denied admission of such evidence, determining that such evidence was not relevant, and then prevented counsel from completing a proffer of that evidence upon further objection by DHS.
The trial court adjudicated the child dependent-neglected and ultimately found that termination was in the best interest of the child. Separate orders of adjudication and for termination of parental rights were entered on October 28, 2014.
Based on this record, we are not convinced that the appeal would be so wholly without merit as to satisfy the requirements of Linker-Flores, supra, and
We also find that a nonfrivolous argument could be made that the trial court‘s rulings on DHS‘s relevancy objections were in error or that the trial court‘s prevention of the proffer was in error. DHS was relying on its past history with the appellant to make the case that termination was in this child‘s best interest, and this evidence was received by the court as relevant. However, when appellant attempted to rebut that argument by highlighting the differences between this case and her previous cases, the trial court held that this information was not relevant. A nonfrivolous argument could be made that evidence of the parent‘s history with the particular child at issue in the termination is actually relevant to whether the parent‘s parental rights to that particular child should be terminated.
Our recitation of these potential issues does not dictate how counsel should structure a merit brief, the extent or nature of the arguments that should be made, or whether any procedural bar or other evidentiary items may exist to defeat them; nor does it guarantee any appellate outcome. The factors merely demonstrate why we were not able to conclude that
Motion to withdraw denied; rebriefing as a merit appeal ordered.
VAUGHT and HIXSON, JJ., agree.
Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.
No response.