NICOLE NICHOLS аnd MICHAEL NICHOLS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILD
No. CV-13-413
ARKANSAS COURT OF APPEALS DIVISION III
September 18, 2013
2013 Ark. App. 504
HONORABLE JIM D. SPEARS, JUDGE
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. JV-2011-267]; AFFIRMED; MOTION TO WITHDRAW GRANTED
Nicole Nichols and Michael Nichols both appeal from the Sebastian County Circuit Court‘s order terminating their parental rights to their child, E.N. (DOB 1-10-10). Nicole‘s counsel has filed a motion to withdraw as counsel that is accompanied by a brief filed pursuant to Arkansas Supreme Court Rule 6-9 and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). Michael‘s cоunsel has filed a merit brief. We affirm the circuit court‘s termination order as to both appellants and grant the motion to withdraw as counsel.
E.N. was taken into custody by the Arkansas Department of Human Services (the Department) on April 2, 2011, after Michael was arrested for domestic battery and Nicole tested positive for methamphetamine, marijuana, and benzodiazepines. Following an
The Department filed a petition for termination of parental rights on June 26, 2012. In the petition, the Department alleged the following statutory grounds for termination: (1) thаt the juvenile has been adjudicated dependent-neglected and has continued to be out of the custody of the parents for twelve months and, despite a meaningful effort by the Department to rehabilitate the parents and correct the conditions that caused removal, those cоnditions have not been remedied;1 (2) the juvenile has lived outside the home of the parents
At the termination hearing, Nicole testified that she was living with her grandparents and earning an average of $250 per week taking care of her grandmother. Nicole finished parenting classes in February 2012, and was going to attend her “third or fourth” domestic-violence class on the day of the termination hearing. Nicole stated that she went to her psychologiсal examination but did not stay because she was called stupid and told that she could not read. She attended drug-and-alcohol-treatment sessions but left because “[i]t was all about Christ.” Nicole insisted that it had been “a long minute” since she had used drugs. Nicole spent December 2011 in jail. She admitted to being chаrged with two drug-related offenses since the beginning of the case. At the time of the termination hearing, she was on
Michael testified that he was living alone in a house owned by his mother. Regarding his marriage to Nicole, he was going tо “see how things go.” Michael stated that he was employed with M&R Roofing doing seasonal roofing and that he did not have income at the time of the hearing. He was in prison for nine months and was released on September 12, 2012. His total sentence was ten years, with five years deferred. He was on parolе at the time of the hearing. He denied having any other criminal charges pending. Michael testified that he completed substance-abuse treatment, anger-management classes, parenting classes, and received his GED while he was imprisoned. He did not have a valid driver‘s license.
Tandy Butler, the family sеrvices worker who had been assigned to the case since July 2012, testified that she attempted to contact Nicole three days prior to a scheduled hair-follicle test that had been ordered by the circuit court but was unable to contact her. When Ms. Butler called Nicole‘s grandparents’ hоme, her grandfather said that he had not seen Nicole in two days.
Jackie Hamilton, the director of the Parenting Without Violence Program, testified that she received referrals on both appellants as a result of their criminal convictions. Nicole attended orientation on Fеbruary 6, 2012, but only attended one class and did not return until September 24, 2012. Michael was referred on June 16, 2011, did not attend orientation, and came in to enroll on September 24, 2012. Hamilton testified that both appellants could have completed the program had they come in when they were referred.
Cathlеen Hampton, Nicole‘s mother, testified that E.N. had been placed in her home for the previous eighteen months and that E.N. was doing well. Ms. Hampton expressed a desire to adopt E.N. if the termination petition were granted. She testified that she had never seen any stability or long period of sobriety from either Nicole or Michael. Lillian Nichols, Michael‘s mother, testified that Michael would be capable of caring for E.N. without assistance.
Jennifer Marsh, who was the worker assigned to the case prior to Tandy Butler, testified that Nicole was discharged from drug-and-alcohol treatment for noncompliance and
In an order filed on February 25, 2013, the circuit court granted the Department‘s petition for termination of parental rights аs to both appellants. These appeals followed.
We review termination of parental rights cases de novo. Grant v. Ark. Dep‘t of Human Servs., 2010 Ark. App. 636, 378 S.W.3d 227. The grounds for termination of parental rights must be proved by clear and convincing evidence. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the circuit court‘s finding thаt the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidеnce is left with a definite and firm conviction that a mistake has been made. Id.
As is noted above, Nicole‘s appellate counsel has filed a motion to withdraw along with a no-merit brief. In dependency-neglect cases, if, after studying the record and researching the law, appellant‘s counsel determines that the appellant has no meritorious basis for appeal, then counsel may file a no-merit petition and move to withdraw. Ark. Sup. Ct.
Nicole‘s counsel argues that there would be no merit to a challenge to the sufficiency of the evidence to support termination. We agree. A circuit court may terminate parental rights if the court finds by clear and convincing evidence that termination is in the child‘s best interest, considering the likelihood that the child will be adopted and the potential harm the child would suffer if returned to the parent‘s custody, and finds by clear and convincing evidence that at least one statutory ground for termination exists. Fields v. Ark. Dep‘t of Human Servs., 104 Ark. App. 37, 43, 289 S.W.3d 134, 138 (2008). The circuit court found that the Department proved all of the statutory grounds pled in the petition to terminate Nicole‘s parental rights. E.N. had been out of Nicole‘s custody for over a year at the time of the termination hearing after being removed due to domestic violence and drug use in the
Regarding whether termination was shown to be in E.N.‘s best interest, at the time of the termination, there were serious questions regarding Nicole‘s stability, her drug use, and her turbulent relationship with Michael. During the case, E.N. had done well in a stable placement with her grandmother who expressed a willingness to adopt her. Nicole‘s counsel correctly argues that the circuit court did not clearly err by finding that termination was in E.N.‘s best interest.
Nicole‘s counsel has identified additional rulings during the termination hearing that were adverse to Nicоle and has explained in the brief why none of the rulings presents a meritorious issue for appeal. We agree with counsel that none of the adverse rulings at the termination hearing presents an issue of arguable merit for appeal. Based on our review of the brief and the record, we hold thаt counsel has complied with the requirements of Rule 6-9. We affirm the circuit court‘s termination order as to Nicole and grant the motion to withdraw as counsel.
Regarding the Department‘s provision of services, Michael did not take advantage of any of the services offered by the Department before he was incarcerated and while he did, to his credit, take advantage of services provided through the Department of Correction, he began working on the case plan after the case was several months old and after he had been arrested and imрrisoned on a drug-related charge for a criminal act he committed after E.N. was removed from the home. Most importantly, there was no indication at the termination hearing that the services he completed made him a viable placement option for E.N. or that he would become so within a reasonable amount of time from E.N.‘s perspective. We hold that the circuit court did not clearly err by granting the petition to terminate Michael‘s parental rights. Accordingly, we affirm the circuit court‘s termination order as to Michael.
HARRISON and BROWN, JJ., agree.
Deborah R. Sallings, Arkansas Public Defender Commission, for appellant Nicole Nichols.
Janet Lawrence, for appellant Michael Nichols.
Tabitha B. McNulty, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.