Miles v. Ark. Dep't of Human Servs. , 2014 Ark. App. 477 ( 2014 )

Cite as 2014 Ark. App. 477
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-14-336
Opinion Delivered September 17, 2014
CATAUYAH MILES APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[No. J-2012-720-D/N]
V.
HONORABLE THOMAS SMITH,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILDREN AFFIRMED; MOTION TO WITHDRAW
APPELLEES GRANTED
LARRY D. VAUGHT, Judge
In an order entered on January 14, 2014, the Benton County Circuit Court terminated
the parental rights of appellant Catauyah Miles in her two children, SM and EK. Appellant’s
attorney has filed a no-merit brief and motion to withdraw pursuant to Linker-Flores v. Arkansas
Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup. Ct. R. 6-9(i)
(2010). In accordance with Rule 6-9(i)(A), the brief lists all adverse rulings at the termination
hearing and discusses why the adverse rulings do not present meritorious grounds for reversal.
Our supreme court clerk’s office mailed copies of counsel’s brief and motion to appellant
as required by Arkansas Supreme Court Rule 6-9(i)(B)(3) (2010), and appellant has filed a pro
se letter in response. We conclude that appellant’s attorney has complied with the requirements
for no-merit termination cases and that an appeal would be wholly without merit. We further
conclude that appellant’s pro se letter presents no meritorious ground for reversal. Accordingly,
we affirm the termination order and grant the motion to withdraw.
Cite as 2014 Ark. App. 477
The Arkansas Department of Human Services (DHS) became involved with appellant
in October 2012 when appellant was arrested for leaving her children in the care of an
intoxicated person because she, too, was intoxicated. The children were adjudicated dependent-
neglected due to parental unfitness, environmental neglect, and inadequate supervision. The case
continued for fourteen months, with little improvement in appellant’s circumstances. By her
own testimony, she remained homeless, with no income, and had failed to complete any aspect
of her case plan.
DHS filed a petition to terminate appellant’s rights on November 5, 2013, alleging five
statutory grounds of unfitness and that termination was in the children’s best interest. The trial
court granted the petition, finding beyond a reasonable doubt that it was in the children’s best
interest to terminate appellant’s parental rights and to be adopted and that appellant was unfit
based on three grounds: 1) the children had been out of her custody for at least twelve months
and despite meaningful effort by DHS to remedy the issues causing removal, those issues had
not been remedied; 2) the children had lived outside the home of appellant for a period of
twelve months and she had willfully failed to provide significant material support in accordance
with her means or to maintain meaningful contact with the children; 3) appellant had subjected
the children to aggravated circumstances and there was little likelihood that further services to
her would result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a),
(b)(3)(B)(ii)(a), (b)(3)(B)(ix).
The court mindfully considered the facts and the testimony of the qualified experts under
the heightened “beyond a reasonable doubt” burden of proof as opposed to the “clear and
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Cite as 2014 Ark. App. 477
convincing” standard, as required by the Indian Child Welfare Act—a federal statute that
governs termination of parental rights of an Indian child. The Act provides in pertinent part:
No termination of parental rights may be ordered in such proceeding in the absence of
the determination, supported by evidence beyond a reasonable doubt, including
testimony by a qualified expert witness, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or physical damage to
the child.
25 U.S.C. § 1912(f).
In accordance with Ark. Sup. Ct. R. 6-9(i)(1)(A), counsel for appellant has carefully
reviewed the record for all rulings that were adverse to appellant by the trial court, including
objections, motions, and requests made by appellant at the final hearing. Counsel accurately
concluded that there were none other than the termination order, which was supported by more
than sufficient grounds and was in the children’s best interest.
Turning now to appellant’s pro se letter, she claims that she has finally committed to a
treatment program to overcome her addictions and is ready to turn her life around in order to
become a suitable parent. The fact that appellant has now enrolled in an inpatient rehabilitation
program is a significant step in remedying the impediments that caused removal. However, the
trial court considered appellant’s last-hour effort—she enrolled in Monarch only eight days
before the termination hearing—and still concluded that termination was warranted. As an
appellate court, we will not act as a super fact-finder or second guess the trial court’s credibility
determinations; that is not our function. Lynch v. Ark. Dep’t of Human Servs., 2012 Ark. App. 149,
at 2.
Affirmed; motion to withdraw granted.
GRUBER and WHITEAKER, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect Appellate
Division, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
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