*1 153 apparently which the Commission did not This court
find credible. has stated that authority
we defer to the Commission’s witness,
disregard testimony of any claimant,
even a as not Making credible.17
credibility deciding determinations weight give
what particular pieces are
evidence within Commission’s
рrovince.18 Where there are evidence, it is with- ^contradictions province
in the Commission’s to reconcile
conflicting evidence and to determine the
true facts.19 appellant presented
Because no evidence
showing that he was entitled additional beyond
medical his treatment own testimo-
ny, apparently which Commission credible,
deemed not we affirm.
Affirmed. Glover, JJ., agree.
Gruber and
2016 App. Ark. 227 HOUSEMAN, Appellant
Jennifer
v. DEPARTMENT
ARKANSAS OF
HUMAN and Minor SERVICES
Children, Appellees
No. CV-16-8 Arkansas, Appeals
Court of
DIVISION IV. 27,
Opinion
April
Delivered
2016
Stores, Inc.,
Co.,
Long
App.
v.
(citing
Wal-Mart
98 Ark.
698
v. Bemis
2010
Adams
263,
(2007) (citing
5129957).
859,
App.
2010 WL
206,
Bray
Group,
App.
Int’l Wire
95 Ark.
(2006)).
Tabitha Commission, for appellant. Defender response. No GRUBER, Judge RITA W. .appeal from the circuit This arises h 2015 order court’s October of Jennifer Houseman A.M.1 and A.M.2. and Marc Mathis to Arkansas Pursuant Linker-Flores Services, 359 Ark. Department Human (2004), 131, 194 Arkansas 6-9(i), Supreme Court Rule counsel has filed motion be relieved asserting that a no-merit -there termination-of-paren brief We review Cheney tal-rights v. Ark. arguable cases novo. are no issues merit de Human The clerk of this at- appeal. at 6, Houseman, 276. The tempted to deliver certi- grounds for termination of pаrental mail, packet copy fied *3 by must proved be clear convincing and brief, attorney’s along motion and with a evidence, the degree proof which is of that informing right pro letter her of file will produce fact-finder a firm con points for se reversal in the case. The regarding allegation sought the viction packet, last-known sent Houseman’s ad- Hughes Dep’t v. Ark. be established. of dress, tо the clerk’s office returned Servs., Human App. 2010 at Ark. 2. address, no marked unable to “moved left of proving disputed Wien the burden forward,” setpoints no pro and have been by evidence, fact is convincing clear and filed. whether, inquiry the is appellate the circuit Counsel’s brief contains an abstract and finding court’s disputed that the fact was below, of the proceedings addendum dis- proved by convincing and clear is evidence ruling the cusses adverse terminate and Id. A. clearly finding erroneous. is clearly possible ruling, another although |sthere adverse and ex- when, is evi erroneous court, |gnó plains it, is that there meritorious to support dence the reviewing on Linker-Flores, reversal. See supra; the evidence is left entire with definite 6-9(i) (2015). Sup. Ct. and Ark. R. note firm. conviction that a has We mistake Id. In resоlving been clearly from the made. outset that counsel dis- does question, erroneous the reviewing court proper ground cuss for termination defers the circuit court of However, because its regarding A.M.2. for the reasons superior opportunity parties observe the forth in affirm opinion, we set judge and to credibility of witnesses. order Brumley Servs., Dep’t Ark. Human rights1 grant motion and counsel’s to with- of 7; Dep’t at Dinkins v. Ark. 2015 Ark. draw. Servs., Human 40 of (2001). S.W.3d of parental Termination is a two-step process requiring a determination 6-9(i)(l) Supreme Arkansas Court Rule that unfit termi is and that fpr (2015) appellant counsel in a allows inis nation the best interest the child. petition termination case file no-merit Harbin v. Ark. Human motion, if, studying after withdraw law, researching coun- record and sel, step requires proof first one determines., the appellаnt that has termination; grounds statutory more for;appeal. meritorious basis ..The step, analysis, the second the best-interest argument must include section . of includes consideration the likelihood list all rulings appel- “shall .adverse will adopted be by objec- lant made circuit on all court potential returning harm by custo tions, motions, caused requests by the made dy child Ark.Code party hearing apрeal which the 27—341(b)(3)(B),(b)(3)(A) § (Repl. explain why Ann. ruling arose and each adverse 9— 2015); Harbin, supra. is not a meritorious for reversal.” Mathis, by 1. The record us a notice -No brief his before includes has been filed behalf, signed appeal by attorney appeal. party Mathis's but and he is not a to this 6-9(i)(l)(A). presence methamphetamine tional Additionally, R. Sup. Ct. propoxyphene; posi- abstract and the father tested and addendum the petition’s rulings methamphetamine, opiates, adverse to tive for “shall contain stated, the circuit court at the appellant” amphetamines. affidavit also appeal order hearing which '[A.M.2], living 1-year-old, been 9(f)(1)(B). R. Sup. Ct. arose. Ark. grandmother paternal with Concetta Here, termi found past Mathis for the Jenni- few months. chil was in the nation- of fer stated went live Con- [A.M.2] with that three interest found dren’s best pregnant, cetta because' Jennifer was statutory proved. car, living in her hav- homeless and in her no-merit states brief Counsel ing problems dealing everything challenging statutory any argument going appears on. Concetta to meet- *4 or for termination the needs, ing all of the child’s and the findings interest” would be court’s “best parents having are no contact her with also frivolous. She states wholly at this time. was re arguable preserved issue of merit finding Jennifer has true from 10-8- declining court’s' re garding the circuit 13 for of Harm as Threat with [A.M.2] their quest place the Juveniles the was victim. Jennifer admitted paternal See Cowan v. Ark. grandmother. Hospital for Bridgeway acute mental
Dep’t Human stating health after treatment that she (holding that our stat to kill herself her car driving wanted given utory that a provision relative stating into the she river wanted place for preferential consideration initial 1-year-old daughter. choke her apply placement ment when does The that ADHS exer- affidavit recited rights has termination of cised hold A.M.1 72-hour due noting that requested appellants pre drug prenatal drug abuse and persuasive or arguments sented no- new exposure; substantial, “in that A.M.1 was precluded by was the |^irreparable serious danger harm un- grandmother’s willingness for care less care of ... removed House- juvenile). man”; no hold and that was taken on 2, 2013, the On Arkansas De- December A.M.2, appear who did be in imme- (ADHS) partment of Human Services filed living with danger grand- diate while petition emergency custody and de- 2, 2013, mother. On December the court The affi- pendency-neglect. accоmpanying parte emergency entered ex order for to a Illegal referred “Newborn Sub- davit custody.2 Exposure” report stance to ADHS. affidavit, According to In a probable-cause Houseman— December order, history drug who probable had a abuse—had the circuit found given emergency cause ne- birth A.M.1 conditions November day, posi- cessitating 2013. The Houseman same A.M.l’s removal Hоuse- amphetamines, opiates, tive for man’s custody and benzo- continued and that it was test; hospital’s contrary diazepine initial to A.M.l’s welfare to be returned addi- home. temporary Houseman’s second test revealed the The allowed cus- order emergency custody concerning apparent "oversight” ex trial day. parte timing filings, being were filed on same with the order order argumеnt petition. Counsel notes that no was made at filed before the tody grand- of A.M.2 to remain with the n
mother. (iv) A parent'-has juve- abandoned the nile; January juveniles On
adjudicated dependent-neglected. court found that A.M.1 was at substantial (vii)(a) That other factors or issues risk of serious harm ... “due to the moth- arose subsequent filing of the drug er’s use” A.M.2 was “at original petition for dependency-neglect risk substantial of serious harm due that demonstrate that placement of the sibling.” to a On December abuse juvenile in custody of the parent is the court emergency change ordered an contrary juvenile’s health, to the safety, custody, removing grand- A.M.2 from her that, or despite welfare and offer mother’s home placing her in the care appropriate services, family the parent custody of to protect ADHS in order has manifested the incapacity or indif- prevent immediate serious harm to remedy ference issues Specifically, her. the court found factors parent’s rehabilitate the grandmother required assistance to circumstances that prevent place- care herself and A.M.2 and that other ment of custody family members the home were under of drugs. the influencе *5 Ann., §. 9-27-341(b)(3)(B). Ark. Code six hearings, At review from March alleged also that petition of termination through 2014, December the court in juveniles’ was the best consistently found ADHS had that interest. reasonable efforts to provide services and At the termination hearing Sep- held on that Houseman was not complying with tember requested plan the ADHS termi- case the court’s orders. At the of parent’s nation each parеntal rights first permanency-planning hearing in on the statutory grounds: based same March fail- months after the case had to begun, goal ure correct the conditiohs that re- the case was reunifica- caused [fiof moval, abandonment, tion with father only. the At fac- the third copies permanency-planning tors. Certified of all in hearing, in orders the July held goal matter were changed the was to admitted into adoption evidence. of and termination parental for.each Houseman testified that when the case parent. goal father, was reunification with the “I petition the ADHS filed termination complete could services but that was 17still of rights on August upof kind to me.” acknowledged She that set forth statutory three drug ADHS had offered treatment for her. grounds for terminating parental rights: She testified 'that initiаlly she went
(i)(a) That a adjudi- has been treatment, House for inpatient Freedom by the dependent- cated court discharged she was for noncompliance, she neglected and has continued- be out of then a program entered Point Decision custody (12) the of the completed it in April twelve but she and, despite meaningful months positive' continued test drugs. .effort and us'e by department the to rehabilitate positive methamphetamine She was in parent and January correct the conditions that 2015 and once afterward.- twice , removal, caused those drugs, including conditions have She used methamphet- not by amine, been remedied in preceding Sep- the summer
Í58 however, not had hearing Houseman corrected last tember 2015 —the “.two, drug problem had caused removal a half months being time .two beginning methamphetamine at the the case. Houseman ago,” used least She , drug permanency-planning requested time work her more once after last July argued there hearing problem and was —conducted changed to terminátion goal was there reason to terminate was where when she rights, continued custody. take grandparent available having' drugs without prescriptiоn use terminating parental rights, In its order prescription. proved by the court found that ADHS had juveniles failed visit Houseman convincing evidence the follow- clear and September She February ing: visiting: she gave reasons for multiple is .parental That termination rough in ... through time “going was juveniles, interest of the tak- the best medication, taking her was life,” was not ing into consideration likelihood house,” “bouncing house ter- juveniles adopted will be if deny visita- that ADHS would concerned is The Court granted. mination petition she did have necessities tion because adoption finds likelihood snacks, diapers and children’s such as placement high. The very current permitting before required which ADHS adopting expressed an interest that she acknowledged the visits. She juveniles. potential harm There is any problems thé informed safety juveniles thfe health At time of the termi- visits. returning the children to cus- caused living for hearing, two nation she had placing them in tody of mother or trailer home behind the weeks a travel §§ 9- father. A.C.A. custody uncle; it tem- -she considered of her boss’s 27-341(b)(3)(A)(i) (ii).... Despite in- & working at housing had been porary *6 treatment, drug the mother con- patient for six ac- job weeks. She her current illegal drugs for positive tinues to or test obtaining on knowledged progress that рre- a prescription medication without had occurred employment af- housing and positive The mother scription. tested ter, hearing. July permanency-planning prescription a for hydrocodone without from She that: she benefit could believed September first of The at the drug treatment and outpatient using methamphet- mother admitted a be to her “within children could returned plan- permanency amine since last Irrelatively short time.” . mother ning hearing. currently The testified ADHS The caseworker employ- camper lives in a and obtained recommended permanency planning ment since juveniles that the parents, both hearing. The months mother went 7 highly adoptable,.and there was the children. The visiting without adopt family who She them.. good not for wanted have a reason mother does believed, 20- said that ADHS based visiting not the children. case, length month termination been has] That [A.M.1 children’s best interest. adjudicated depen- be by the Court dent-neglected disputed January closing,
At Houseman’s counsel custody of or have out of the proved [sic] continued that ADHS abandonment (cid:127) (12) months the mother statutory factors as for twelve subsequent meaningful by the acknowledged, despite a effоrt for termination. Counsel | gdepartment to parent findings, granted rehabilitate-.the On the court these correct the conditions which caused petition for termination of pa- removal, those conditions have rental rights. by § the parents.
remedied A.C.A. 9- correctly Counsel states the ar 341(b)(3)(B)(i)(a). Despite inpatient 27— gument portion of her brief that only one treatment, drug mother continues ground 9-27-341(b)(3)(B) of section need for positive illegal drugs pre- test or proven termination. Sims v. scription prescrip- medication without Servs., Ark. Dep’t Human positive tion. The mother for tested App. agrees at 7. She with House hydrocodone prescription without man’s trial argument that there was insuf September the first of 2015. The moth- prove ficient evidence to abandonment or er to using methamphetamine admitted subsеquent factors. Counsel then ad permanency planning since last only dresses the failure-to-remedy ground. hearing. note, however,
We
the order of
A.M.1,
this
limited
^termination
mother,
Houseman,
Jennifer
has
who was
removed
Houseman’s custo
juveniles.
§
9-
abandoned
A.C.A.
dy
drug problems.
because of
Counsel has
341(b)(3)(B)(iv).
27—
6-9(i)(l)’s
Rule
followed
clear instruc
That, subsequent
filing
to the
of the
determine,
tion to
“after
only
studying the
original petition for dependency-neglect,
record,” that there
is meritorious basis
factors or
other
issues arose which dem-
appeal.
juveniles
onstrate that
return
custody of
parent
either
contrary
is
is
Because
case
one
ter
health,
juveniles’
safety
or welfare
mination,
we
able
affirm address
are
despite
and that
the offer
appropriate
ing
statutory ground
that counsel-ha
family services,
each
has mani-
s
if
omitted
her brief. Even
an ad
incapacity
fested the
or indifference to
ruling
verse
from a
omitted
no-merit
remedy
issues or factors
case,
brief in a
may
affirm
parent’s
rehabilitate
circum-
if
ruling
clearly
would
not constitute a
prevent
ju-
stances which
return of the
appeal. Hughes
meritorious
to the custody
venile
of the
Human
27—341(b)(3)(B)(vii)(a).
§
A.C.A.
State,
(citing
at 5-6
Sartin v.
mother
housing
had stable
*7
16,
877);
Sartin,
2010 Ark.
362
see
S.W.3d
employment
began.
since the case
De-
at
362
at
882
treatment,
spite inpatient drug
(noting the inherent differences between
positive
mother continues to
for
test
ille-
civil
regarding
and criminal law
of
gal drugs or
burdens
prescription medication
review,
proof and
of
holding
standards
a prescription.
without
The mother
that a no-merit brief that
not
positive for
does
hydrоcodone
tested
without
address
ruling in a
prescription
of
adverse
case
September
the first
criminal
does
3(k)(l)
Ark.
satisfy
Sup.
2015. The mother
Ct. R.
using
admitted
rebriefed).
methamphetamine
cases,
must
In
perma-
since
last
termination
nency planning hearing.
“through
error,
de
novo
for clear
father has
review
recently
the appellate
been sentenced to the
court will
of
Arkansas
all
review
оf
Department
error,
Corrections
for
presented
18 evidence
resolving
for
months.
has not
in
of
[sic]
had stable
inferences
appellee.”
favor
.the
Sar
housing
tin,
or employment during
the case.
160 Human manner diminish parent counsel’s re- v. Ark.
(citing Dinkins
of
review the record
(2001)).
sponsibility
diligently
207, 40
Ark.
S.W.3d 286
344
evidence
if there
sufficient
ascertain
why
explained
adequately
has
Counsel
termination,
to call atten-
err in
clearly
did
the circuit
rulings, and to detеr-
tion to all adverse
best
it was
the children’s
finding that
any
argu-
issues of
mine whether there are
rights and
parental
terminate
interest
for appeal.
able merit
finding
the failure-to-
clearly err
did not
terminate,
three
In
DHS’s
Regard-
regarding A.M.I.
remedy ground
alleged. At
termination
inquiry on the
A.M.2,
focus our
we
ing
hearing, and
the termi-
the termination
proved
finding that ADHS
court’s
order,
trial court
terminated
nation
statu-
convincing evidenсe the
by clear and
rights
girls
to both
Houseman’s
subsequent
Al-
factors.
tory ground
grounds of abandonment and subse-
on the
not discussed
though counsel
factors,
court termi-
quent
but the h atrial
testimony in the
abstract
ground,
parental rights only
Houseman’s
nated
it.
brief addresses
younger girl
the basis
twelve
sub
|nThe circuit court found that
to reme-
custody
out of
and failure
months
Nevertheless, in
original peti
filing
dy
girl.
the older
sequent to
—not
brief,
stаtes,
counsel
not obtained stable
no-merit
tion,
had
Houseman
agrees with
counsel for Jennifer
“While
employment; she
tested
had
housing
argument at trial
the evidence
pre
hydrocodone
without
positive
Jennifer’s
terminat[e]
was insufficient
to test
she had continued
scription;
under
abandonment
drugs
prescription
illegal
positive
ground,
factors
and the
prescrip
she
for which
medication
thаt the termination
argue
counsel cannot
efforts to
ADHS’s reasonable
despite
tion
remedy
the failure
was incorrect under
conducting a de
After
provide services.
ground.”
singular reli-
Parent counsel’s
evidence,
all the relevant
novo review of
failure-to-remedy ground
ance
that the circuit court did
conclude
we
as
the older
leaves
brief deficient
pa
clearly err in
not a basis for
girl, as that
subsequent-factors
on the
rental
of Houseman’s
A.M.2.
ground regarding
to her.
on our examination
the record
Based
Depart
Arkansas
In Linker-Flores v.
us,
grant counsel’s
and the brief before
Services,
Ark.
ment Human
and affirm the order
motion to withdraw
(Linker-Flores
II),
(2005)
did relevant isabstract
ports subsequent-factors ground
termination Houseman’s girl, majority the older discussed
opinion. erroneously Parent counsel as-
serts that there was insufficient evidence support subsequent-factors ground;
but, ability perform due to our a de record, can, do,
novo review the is ample
hold there evidence to ground. Certainly, may our court clear,
perform such a To review. this
function falls squarely first and foremost shoulders,
on parent counsel’s
court, parent simply counsel cannot
abdicate no-merit review to our court to
perform parent the work counsel should performed.
have Our affirmance termi-
nation of grant
our of counsel’s motion to be re- way appellate
lieved in no excuses counsel presenting a conforming brief —a losing parental rights deserves a counsel, by appellate
conscientious review
especially appellate when counsel deter-
mines that a no-merit brief is in order. comment, the above I
With concur.