CLINT KLOSS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN
No. CV-18-709
ARKANSAS COURT OF APPEALS DIVISION III
February 20, 2019
Cite as 2019 Ark. App. 121
PHILLIP T. WHITEAKER, Judge
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV-17-620] HONORABLE WILEY A. BRANTON, JR., JUDGE MOTION TO WITHDRAW DENIED; REBRIEFING ORDERED
Counsel’s brief contains an abstract and addendum of the proceedings below, states that the only ruling adverse to Kloss was the termination itself and asserts that there was sufficient evidence to support the termination. See Linker-Flores, supra;
The children were adjudicated dependent-neglected in July 2017. The trial court found that the juveniles were dependent-neglected due to parental unfitness. The court specifically found that the children were living in a drug premises, that the home was the subject of a drug raid, that the children were exposed to toxic illegal drugs, and that the evidence constituted environmental neglect. Based on the extreme and multiple risks of harm, the court made a finding by clear and convincing evidence that Sinkey and Kloss had subjected the children to aggravated circumstances.1 Kloss did not appeal the adjudication order or the court’s finding of aggravated circumstances. It is important to note that at the time of the adjudication hearing, Kloss had not yet been declared the father of the children; Kloss’s status as a parent was not
In May 2018, DHS filed a petition to terminate the parental rights of Sinkey and Kloss. As to Kloss, DHS alleged the following three grounds for termination: (1) the failure-to-remedy ground as it applies to a noncustodial parent,
The trial court terminated Kloss’s parental rights based on all three grounds alleged in the petition. Regarding the failure-to-remedy ground, the trial court found that the children had been out of the Kloss’s home (the noncustodial parent) for over a year and that he had failed to remedy the conditions preventing reunification.2 As to the subsequent-other-factors ground, the court found that it had made an aggravated-circumstances finding at adjudication and could have fast tracked the case and proceeded immediately to termination; it did not do so, giving the parents an opportunity to achieve reunification by receiving and benefiting from services. Despite this opportunity, a year later, the parents had still not corrected or fixed the problems which caused removal. As for the aggravated-circumstances ground, the court found that there was little likelihood that services to the family would result in successful reunification within a reasonable period of time as measured from the children’s perspectives and consistent
Counsel states in her no-merit brief that any argument challenging either the statutory grounds for termination or the circuit court’s “best interest” findings would be wholly frivolous. More specifically, she claims that challenging the grounds for termination would be wholly frivolous because the trial court had made an aggravated-circumstances finding at adjudication; Kloss had not appealed that finding; and as a result, he was precluded from challenging the aggravated-circumstances finding at termination. See Hannah v. Ark. Dep’t of Human Servs., 2013 Ark. App. 502; see also Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. Counsel argues that because only one ground of
Pursuant to Linker-Flores, our rules were created to ensure that someone who is advocating on behalf of the appellant has reviewed the record and considered all the arguments that could be made in the client’s favor before a no-merit brief is submitted. Counsel has a duty to address all adverse rulings and to explain why each ruling is not a meritorious ground for reversal.
Here, counsel’s no-merit argument, as it applies to the court’s finding of statutory grounds, is problematic. First, it does not appear that the trial court based its aggravated-circumstances finding at termination on its previous ruling at adjudication. Instead, it appears
Finally, there is one additional adverse ruling that has not been addressed by counsel. At the close of the testimony, counsel asked the trial court to allow Kloss more time—three additional months—to obtain reunification; the trial court denied the request. Counsel has not addressed this adverse ruling in her brief.
We recognize that a counsel’s failure to address adverse rulings does not always automatically require rebriefing. See Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877 (holding that the failure to list and discuss all adverse rulings in a no-merit termination-of-parental-rights case does not automatically require rebriefing if the ruling would clearly not present a meritorious ground for reversal); see also Houseman v. Ark. Dep’t of Human Servs., 2016 Ark. App. 227, 491 S.W.3d 153 (affirming termination of parental rights by addressing a statutory ground that was omitted from counsel’s brief). While we have the authority to affirm without rebriefing, we are not required to do so in every case. See Bentley v. Ark. Dep’t of Human Servs., 2018 Ark. App. 125 (requiring rebriefing where counsel failed to address numerous adverse rulings). We decline to exercise that authority in this case.3 Counsel’s motion to withdraw is therefore denied at this time.
Motion to withdraw denied; rebriefing ordered.
GRUBER, C.J., and VAUGHT, J., agree.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
One brief only.