Washington v. Ark. Dep't of Human Servs. , 2014 Ark. App. 293 ( 2014 )

Cite as 2014 Ark. App. 293
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-13-716
Opinion Delivered May 7, 2014
TERRY WASHINGTON
APPELLANT APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
V. WESTERN DISTRICT
[NO. JV-12-61]
ARKANSAS DEPARTMENT OF HONORABLE BARBARA HALSEY,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
This is the second time that appellant Terry Washington’s appeal has been presented
to us in this termination-of-parental-rights case. Mr. Washington’s parental rights were
terminated in a June 2013 order of the Craighead County Circuit Court regarding his then-
three-year-old son, TW, born in March 2010. TW’s biological mother, Tassie Anthony, had
her parental rights terminated to both TW and his younger half-sister, and Anthony’s merit-
based appeal was affirmed in Anthony v. Arkansas Department of Human Services., 2013 Ark.
App. 556, handed down on October 2, 2013.1 In the first appeal, Washington’s attorney
submitted a no-merit brief and a motion to be relieved from representation pursuant to
1
In short, Ms. Anthony abused illegal drugs and was in and out of jail, with no steady
job, income, or stable housing. She was, by her own admission, unavailable for the first six
months, and she was uncooperative and partially unavailable for the last six months of the
year-long DHS case.
Cite as 2014 Ark. App. 293
Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004).
We denied his attorney’s motion to be relieved and ordered that his attorney prepare another
brief because the attorney failed to comply with the mandates of Ark. Sup. Ct. R. 6-9(i)
(2013) and Linker-Flores. See Washington v. Ark. Dep’t of Human Servs., 2014 Ark. App. 13.
Washington’s counsel has rebriefed the appeal and again asserts that after a thorough
review of the record, there is no issue of arguable merit to raise on appeal and that he should
be permitted to withdraw as counsel. The no-merit brief purports to explain each adverse
ruling and why none would support a meritorious argument for reversal. The clerk of our
court attempted to provide Washington with a copy of his counsel’s brief and motion and to
inform him of his right to file pro se points for reversal. The certified mailing was returned
as undeliverable.2 Neither the Department of Human Services nor the child’s attorney ad
litem filed a responsive brief. Having reviewed this appeal under the proper standards, we
hold that an appeal of this termination order would be frivolous or wholly without merit. See
Fredrick v. Ark. Dep’t of Human Servs., 2009 Ark. App. 652. We, therefore, affirm the
termination of Washington’s parental rights and grant counsel’s motion to be relieved.
We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist,
in addition to a finding that it is the child’s best interest to terminate parental rights; these
must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2011);
2
The clerk of our court mailed the materials to Washington where he was incarcerated,
but the clerk was advised that Washington was no longer housed at the prison.
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M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and
convincing evidence is that degree of proof that will produce in the fact-finder a firm
conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633,
839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the
disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.
Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Credibility determinations are
left to the fact finder, here the trial court. Moiser v. Ark. Dep’t of Human Servs., 95 Ark. App.
32, 233 S.W.3d 172 (2006).
The purpose of the Juvenile Code is to provide permanency and stability in a child’s
life when it is not possible to return the child to the parent in a reasonable period of time
as viewed from the juvenile’s perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full
compliance with the case plan is not determinative; the issue is whether the parent has
become a stable, safe parent able to care for his or her child. Compare Camarillo-Cox v. Ark.
Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); Cole v. Ark. Dep’t of Human
Servs., 2012 Ark. App. 203, 394 S.W.3d 318; Tucker v. Ark. Dep’t of Human Servs., 2011 Ark.
App. 430, 389 S.W.3d 1. A parent’s past behavior is often a good indicator of future
behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, S.W.3d. .
As noted in our previous opinion, in early March 2012, the Craighead County Circuit
Court entered an ex parte order for emergency custody of TW, following his half-sibling’s
birth in February 2012 and their mother’s positive test for drugs. TW was ordered to be
placed in DHS custody, but the mother refused to relinquish custody of him. The children
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were adjudicated dependent-neglected in April 2012 due to parental unfitness. DHS filed a
motion to terminate both the mother’s and Washington’s parental rights to the children in
June 2012.
The June 2012 petition alleged two grounds regarding Washington: (1) that “other
issues or factors” arose after the case was filed showing that despite the provision of
appropriate services, Washington was incapable or indifferent to remedying the subsequent
issues or factors or rehabilitate his circumstances, preventing him from regaining custody
of TW under Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a); and (2) that
Washington had been sentenced in a criminal proceeding to a period of time that would
constitute a substantial period of TW’s life under Arkansas Code Annotated section 9-27-
341(b)(3)(B)(viii). In August 2012, the mother relinquished custody of her son to DHS.
Her parental rights were terminated after a hearing in January 2013. See Anthony, supra.
Washington, who had been in jail since October 2012, did not seek to formally establish
paternity with regard to TW until February 2013.
At the termination hearing in April 2013, Washington complained that DHS failed to
include him in the case plan and failed to offer him appropriate reunification services. He said
he watched the “The Clock is Ticking” video, attended three parenting classes, passed one
drug screen, and attended visits with TW, although he was just a “tag along” with the
biological mother.
The trial judge found that TW was adoptable based on the testimony of DHS
caseworkers that TW and his half-sibling had been in the same foster home for months and
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were likely to be adopted by the same family. The trial judge also made a best-interest
finding, addressing the potential harm of returning TW to appellant, who could not take
custody of his son at that time because he was in jail.
The trial judge took note of the uncontradicted evidence that Washington was
incarcerated from October 2011 to April 2012, was at liberty for a few months, and then was
incarcerated ever since October 2012. The trial judge also noted that Washington appeared
at this hearing in “prison garb and shackles” with no verification of when he might be
released, although he believed he would be released in October 2013. The trial court was not
impressed with Washington’s asserted plan to live with his mother upon release from jail; his
mother did not corroborate that plan. The trial court found that Washington lacked any
income, lacked any suitable home, and had not resolved his criminal issues. The trial court
found that DHS proved both grounds it alleged. Proof of only one ground is required to
support termination of parental rights. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App.
526.
Counsel addresses two evidentiary rulings that were adverse to Washington, both of
them concerning relevance. Counsel discusses why there is no viability to Washington’s
complaint about DHS failing to adequately provide him reunification services—in short,
Washington’s incarceration at the beginning and end of this case effectively prevented any
benefit from the services to which he had access. Counsel reasserts that Washington’s
incarceration constituted a substantial period of then-three-year-old TW’s life. It is apparent
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that the trial court’s decision to terminate Washington’s parental rights is not clearly
erroneous, an appeal would be wholly frivolous, and we affirm.
Affirmed; motion granted.
GLADWIN, C.J., and GLOVER, J., agree.
Thomas Wilson, for appellant.
No response.
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