Michelle Baltzell v. Arkansas Department of Human Services and Minor Child , 2022 Ark. App. 299 ( 2022 )

Cite as 2022 Ark. App. 299ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-22-35
MICHELLE BALTZELL Opinion Delivered August 31, 2022
APPELLANT
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. 26CV-20-190]
ARKANSAS DEPARTMENT OF HONORABLE LYNN WILLIAMS,
HUMAN SERVICES AND MINOR JUDGE
CHILD
APPELLEES AFFIRMED; MOTION TO
WITHDRAW GRANTED
BART F. VIRDEN, Judge
The Garland County Circuit Court terminated the parental rights of appellant
Michelle Baltzell to her daughter, Z.B. Baltzell appeals the decision to terminate her rights,
and her counsel has filed a motion to withdraw along with a no-merit brief pursuant to our
rules and caselaw, stating that there are no meritorious grounds to support an appeal. Ark.
Sup. Ct. R. 6-9(i); Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739(2004). Our court clerk mailed a certified copy of counsel’s motion and brief to Baltzell and
notified her of her right to file pro se points for reversal. We affirm the termination and
grant counsel’s motion to withdraw.
I. Background
The Arkansas Department of Human Services (DHS) filed a petition for dependency-
neglect on July 8, 2020. In an affidavit attached to the petition, a family-service worker
supervisor attested that DHS had received a hotline referral on July 8 alleging medical neglect
of then one-month-old Z.B. because Baltzell, who had called her pediatrician on July 6 about
Z.B.’s arm, had disregarded the pediatrician’s advice to take Z.B. to the hospital immediately.
When Z.B. was finally examined at Arkansas Children’s Hospital, it was found that she had
sustained a broken arm, multiple broken ribs, and a subdural hematoma. A second affidavit
accompanied the petition in which an investigator with the Arkansas State Police Crimes
Against Children Division (CACD) stated that Baltzell and everyone in the household had
been interviewed, including the maternal grandmother and Z.B.’s two juvenile uncles, and
that the history given by family members was not consistent with Z.B.’s injuries. Ryan Ragan
was identified as Z.B.’s putative father. The trial court entered an ex parte order for
emergency custody of Z.B.
Z.B. was subsequently adjudicated dependent-neglected as a result of abuse, neglect,
and parental unfitness. The order noted that Baltzell claimed that Z.B. had slipped out of
Ragan’s arms while the three of them were showering; however, Ragan claimed that Baltzell’s
family, with whom they were living, had forced him to tell the shower story. Ragan later said
that he was not present when Z.B. was injured. The trial court found that nonaccidental
physical abuse had occurred and concluded that everyone in the household was a potential
offender. Baltzell did not appeal from the adjudication order.
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Review orders were entered in December 2020 and in March and May 2021. The
goal was stated as reunification with a concurrent goal of relative or fictive-kin placement. In
both the December and March orders, the trial court found that Baltzell had not complied
with the case plan and court orders, although the court noted that she had completed
parenting classes and had stable housing in December and that she had submitted to
counseling and still had housing in March. Regarding the May order, the trial court found
that Baltzell had partially complied in that she had completed more services.
DHS filed a petition to cease providing reunification services to Baltzell in May. A
hearing on DHS’s petition was held in conjunction with a permanency-planning hearing. In
its order, the trial court changed the goal of the case to adoption and termination of parental
rights with a concurrent goal of relative or fictive-kin placement. The trial court withheld its
ruling on DHS’s petition and ordered DHS to assist Baltzell in finding stable and appropriate
housing. Specifically, the trial court found that “[t]his child suffered extensive injuries, which
resulted from multiple violent incidents at different points in time; none of the adult
caretakers (parents and maternal grandparents) have ever provided a sufficient history to
explain the extent and number of injuries” and that “[a] big step toward helping assure the
Court that the child would be safe if returned to the mother is if she were to acquire her
own housing.”
In June 2021, DHS filed a petition to terminate Baltzell’s parental rights, alleging
several grounds under Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2021), including (i)(a)
(failure to remedy); (ii)(a) (failure to provide material support); (vii)(a) (other subsequent
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factors); and (ix)(a)(3)(B)(i) (aggravated circumstances—little likelihood that services to the
family will result in successful reunification). A hearing was held on DHS’s petition for
termination of both Baltzell’s and Ragan’s parental rights.
Jamie Moran, a DHS caseworker supervisor, testified that Baltzell was still living with
her parents. She said that Baltzell planned to put a camper on her grandparents’ property
but that the camper had no electricity or running water. She also said that Baltzell’s counsel
had informed her “less than 30 seconds ago” that Baltzell has plans to rent an apartment.
Moran said that DHS had offered to assist Baltzell with transportation and her application
to get housing but that Baltzell had refused and said that she would do it herself. Moran said
that Baltzell had otherwise cooperated and completed the services. She testified that, even if
Baltzell had obtained her own housing, DHS would be concerned about returning Z.B. to
Baltzell because the adults in the household know something but are protecting each other
or themselves.
Baltzell insisted that she had been searching for an apartment since the last court date
but that everything was booked because of COVID-19. She said that she had finally—the day
prior to the hearing—found an apartment but that it would not be ready until the week after
the hearing. She later testified that she could not remember the name of the apartments, did
not know the name of the person she spoke with about the apartment, did not know how
much the rent was going to be, and did not know anything about a deposit. Baltzell testified
that she did not know who had abused Z.B. but that she did an investigation of her own and
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that it was likely Ragan. She later repeated the shower story. Baltzell said that DHS was trying
to take Z.B. away from her because “all they care about is the money.”
In its oral ruling from the bench, the trial court noted that Baltzell had had four
months within which to find housing but that “time has run out.” The trial court found that
Baltzell’s testimony about her efforts to find housing were not believable. The trial court said
that it could not put Z.B. back in the home where someone in that household had abused
Z.B. The trial court also noted that Baltzell had refused DHS’s assistance to transport her to
try to get housing and that there were no other services that DHS could offer her to get Z.B.
back.
In an order entered October 19, 2021, the trial court found that DHS had proved all
four grounds alleged in its petition as to Baltzell and found that termination was in Z.B.’s
best interest. The trial court found that Z.B. is adoptable in that an adoption specialist had
testified that 194 families had expressed an interest in adopting a child with Z.B.’s
characteristics. The trial court also found potential harm in returning Z.B. to Baltzell’s
custody because she had not demonstrated stability and because she had not secured housing
separate from those who had perpetrated abuse on Z.B.
II. Standard of Review
We review termination-of-parental-rights cases de novo. Roland v. Ark. Dep’t of Human
Servs., 2018 Ark. App. 333, 552 S.W.3d 443. An order terminating parental rights must be
based on a finding by clear and convincing evidence that termination is in the child’s best
interest. Id. The trial court must consider the likelihood that the child will be adopted if the
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parent’s rights are terminated and the potential harm that could be caused if the child is
returned to a parent. Id. The trial court must also find that one of the grounds stated in the
termination statute is satisfied. Id. The question on appeal is whether the trial court’s finding
on the disputed fact is clearly erroneous, which means that, although there is evidence to
support it, we are left with a definite and firm conviction that a mistake has been made. Id.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. R. 6-9(i)(1). The
petition must include an argument section that lists all adverse rulings that the parent
received at the trial court level and explain why each adverse ruling is not a meritorious
ground for reversal. Ark. Sup. Ct. R. 6-9(i)(1)(A).
III. Adverse Rulings
Counsel addressed the sufficiency of the evidence supporting termination of Baltzell’s
parental rights, specifically, the aggravated-circumstances ground. Z.B. had been abused in
the home in which Baltzell continued to live, and although she had been told to obtain her
own housing, she refused DHS’s assistance. In termination cases, a challenge to a finding of
abuse must be made, if at all, in an appeal from the adjudication order. Roland, supra. Baltzell
did not appeal the trial court’s finding that Z.B. was abused.
With respect to best interest, an adoption specialist testified that Z.B. is adoptable.
On potential harm, Baltzell continued to live in the home where Z.B. had been abused; she
refused DHS’s assistance to obtain housing; and she failed to obtain housing of her own
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despite having had four months within which to do so. Counsel asserts that there are no
other adverse rulings aside from the termination itself. 1
We agree with counsel that there is no meritorious challenge to the aggravated-
circumstances ground that was used to terminate Baltzell’s parental rights. Counsel
adequately explained why there is sufficient evidence to support the termination and why an
appeal would be wholly frivolous. In short, counsel has complied with our rules for no-merit
briefs and the requirements of Linker-Flores, supra.
On a final note, we will not consider Baltzell’s untimely pro se points for reversal. In
the letter from the court clerk notifying Baltzell of this right, the deadline for filing was clearly
stated as March 19, 2022, which fell on a Saturday. Thus, Baltzell had until March 21 to file
her pro se points. Baltzell’s pro se points were tendered March 23. Our court clerk
immediately sent Baltzell a letter notifying her that the points were late and that she must
file a motion requesting permission to file the points belatedly if she wished them to be
considered. Baltzell filed no such motion with this court. We thus do not consider her pro
se points.
1
During her testimony, Baltzell requested more time to secure housing; to the extent
that this was an adverse ruling, given the trial court’s implicit denial, it would not amount
to a meritorious ground for appeal. There was no requirement that Baltzell be given
additional time in light of Z.B.’s need for permanency. See, e.g., Danes v. Ark. Dep’t of Human
Servs., 2019 Ark. App. 388, 585 S.W.3d 731 (holding that the refusal of a last visit had no
bearing on the merits of the termination of parental rights). Even if an adverse ruling is
omitted from a no-merit brief in a termination case, we may affirm if the ruling would clearly
not constitute a meritorious ground for appeal. Beaty v. Ark. Dep’t of Human Servs., 2017 Ark.
App. 621, 534 S.W.3d 190.
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Affirmed; motion to withdraw granted.
GRUBER and BROWN, JJ., agree.
Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.
One brief only.
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