Matlock v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 184

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-984

JENNIFER MATLOCK Opinion Delivered March 11, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
ELEVENTH DIVISION
[NO. 60JV2013-1663]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES HONORABLE PATRICIA JAMES,
APPELLEE JUDGE

AFFIRMED; MOTION TO
WITHDRAW GRANTED

CLIFF HOOFMAN, Judge

Appellant Jennifer Matlock appeals from the order of the Pulaski County Circuit Court

terminating her parental rights to her child D.W.1 Matlock’s attorney has filed a no-merit

brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court Rule 6-9(i)

(2014) and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d

739 (2004). The clerk of this court mailed a certified copy of counsel’s motion and brief to

Matlock, informing her of her right to file pro se points for reversal, which she has done. The

Arkansas Department of Human Services (“DHS”) and the minor child filed a joint response

to Matlock’s pro se points on appeal. We grant counsel’s motion to withdraw and affirm the

order of termination.

1
Although the circuit court’s order also terminated the rights of Prometheus Wilkins,
putative father of D.W., he is not a party to this appeal.
Cite as 2015 Ark. App. 184

On October 10, 2013, DHS filed a petition for ex parte emergency custody and

dependency-neglect of then eight-month-old D.W. In the affidavit attached to the petition,

DHS stated that D.W. was placed on a seventy-two-hour hold on October 7, 2013, after

Wilkins and Matlock had been stopped and arrested by a police officer on felony charges.

Wilkins was driving a stolen car from a “dope dealer” with Matlock and D.W. riding as

passengers. Additionally, both parents tested positive for cocaine on October 8, 2013. The

trial court granted the petition on October 10, 2013, finding that probable cause existed for

the removal and ordering a probable-cause hearing on October 14, 2013. After the probable-

cause hearing, the trial court noted that the parties had stipulated to probable cause existing

for the removal. Additionally, the trial court ordered family services, permitted supervised

visitation contingent on negative drug screens, and set reunification as the case goal.

After a December 9, 2013 adjudication hearing, the trial court found by a

preponderance of the evidence that D.W. was dependent-neglected. DHS filed a motion to

terminate reunification services on March 31, 2014, alleging that D.W. had been subjected

to aggravated circumstances. After a review hearing, the trial court found that the parents

were not in compliance, that DHS should continue to provide services, and that Matlock was

to be screened for drugs. Subsequently, after a hearing on May 5, 2014, on DHS’s motion

to terminate reunification services, the trial court found by clear and convincing evidence that

DHS’s motion to terminate reunification services should be granted, found that there were

aggravating circumstances, changed the case goal to termination of parental rights with

adoption, and set a termination-of-parental-rights hearing.

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Cite as 2015 Ark. App. 184

DHS formally filed a petition for termination of parental rights on May 23, 2014, and

an amended petition for termination of parental rights on May 27, 2014. DHS alleged four

separate grounds for termination with respect to Matlock under Arkansas Code Annotated §

9-27-341(b)(3)(B) (Supp. 2013): (1) that the court has found the juvenile or a sibling

dependent-neglected as a result of neglect or abuse that could endanger the life of the child,

sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile’s parent or

parents or stepparent or stepparents; (2) that the parent is sentenced in a criminal proceeding

for a period of time that would constitute a substantial period of the juvenile’s life; (3) that the

parent is found by a court of competent jurisdiction, including the juvenile division of circuit

court, to have subjected any juvenile to aggravated circumstances; and (4) that other factors

or issues arose subsequent to the filing of the original petition for dependency-neglect that

demonstrate that placement of the juvenile in the custody of the parent is contrary to the

juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services,

the parent has manifested the incapacity or indifference to remedy the subsequent issues or

factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in

the custody of the parent.

A termination hearing was held on August 4, 2014. Matlock testified at the hearing

that D.W. was taken by DHS after she was arrested when she and D.W. were riding in a

stolen car with D.W.’s father. When she was not incarcerated from approximately January

30, 2014, to April 16, 2014, she visited D.W. only five times, despite having transportation

and the opportunity to visit every Monday. She also chose not to participate in or complete

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any other services offered by DHS. She admitted that she did not visit or complete any

services because she was “on drugs again” and she did not have a stable home. Her last date

of employment was in October 2013. On her last visit with D.W., she had tested positive

for cocaine, and she was arrested that same day. At the time of the hearing, she testified that

she had been incarcerated for about three months and was serving a five-year sentence with

ten years suspended and an estimated release date as early as August 8, 2015. She also testified

that she had been diagnosed as bipolar and had been previously committed in Hot Springs,

Arkansas. Therefore, she admitted that she was unable to take care of her child for at least a

year and desired that her child be adopted by his aunt, as she did not want her “baby to be

thrown from foster home to foster home.” While incarcerated, she explained that she had

taken anger-management classes and was taking substance-abuse and parenting classes.

However, she again explained that she wanted D.W. to be able to stay in his current

placement “until we get established for him to be with his aunt. I want him with his family.

I may never actually be his mother, be back in his life again because I have a lot of things that

I’ve got to get right with myself first. But I want him to stay where he at and to be with his

aunt later on.”

Bethany Taylor, a family-service worker with DHS, testified that D.W. was removed

on October 7, 2013, after his parents had been arrested for riding in a stolen vehicle and tested

positive for cocaine. She explained the case history and stated that the only service that

Matlock minimally complied with was the visitation, visiting D.W. only five times out of a

possible ten times during her release from incarceration. Matlock refused services, indicating

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that it did not make sense for her to use the services and then have to go back into

incarceration on her criminal charges. Taylor also testified that Matlock admitted to using

drugs and could not take care of D.W. Therefore, she opined that it was in the child’s best

interest to be placed for adoption and for parental rights to be terminated.

Brenda Keith, an adoption specialist with DHS, testified that there was a high potential

for D.W. to be adopted, as there were more than 400 matching families on the list. She also

opined that because D.W. was young and did not have any major health or developmental

delays, those factors were in favor of him being adopted. She explained that it was DHS’s

policy to consider qualified family members as adoptive parents along with other qualified

families.

After the hearing, the trial court filed an order terminating parental rights on August

21, 2014, finding that there was clear and convincing evidence to support termination of

Matlock’s parental rights on two of the grounds alleged in the petition, specifically (1) that the

child had been subjected to aggravated circumstances and (2) that other factors or issues arose

subsequent to the filing of the original petition that demonstrate that placement of the juvenile

in the custody of either mother or biological father is contrary to the juvenile’s health, safety,

or welfare, and that despite the offer of appropriate family services, the mother and biological

father have manifested an incapacity or indifference to remedying those issues or factors, or

rehabilitate their circumstances that prevent the placement of the juvenile in the custody of

the parent. Additionally, the trial court found that termination was in the child’s best interest,

after considering the likelihood that the juvenile will be adopted and the potential harm on

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the health and safety of the juvenile if returned to the parent. This appeal followed.

In the no-merit brief, appellant’s counsel correctly asserts that the only adverse ruling

was the termination itself and that there can be no meritorious challenge to the sufficiency of

the evidence supporting termination of Matlock’s parental rights. A trial court’s order

terminating parental rights must be based upon findings proved by clear and convincing

evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2013). Clear and convincing evidence

is defined as that degree of proof that will produce in the fact finder a firm conviction as to

the allegation sought to be established. Posey v. Ark. Dep’t of Health & Human Servs., 370 Ark.

500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-

rights cases de novo but will not reverse the trial court’s ruling unless its findings are clearly

erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it,

the reviewing court on the entire evidence is left with a definite and firm conviction that a

mistake has been made. Id. In determining whether a finding is clearly erroneous, an

appellate court gives due deference to the opportunity of the trial court to judge the

credibility of witnesses. Id.

In order to terminate parental rights, a trial court must find by clear and convincing

evidence that termination is in the best interest of the juvenile, taking into consideration (1)

the likelihood that the juvenile will be adopted if the termination petition is granted; and (2)

the potential harm, specifically addressing the effect on the health and safety of the child,

caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing

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of clear and convincing evidence as to one or more of the grounds for termination listed in

section 9-27-341(b)(3)(B). However, only one ground must be proved to support

termination. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918.

Based on the evidence presented, it was clear that termination of parental rights was

in the best interest of the child and that DHS proved statutory grounds. There was evidence

that the child was adoptable, and if returned to Matlock, the child would be at risk of harm.

The trial court found clear and convincing evidence that two statutory grounds existed. First,

the trial court found that “[t]he parent is found by a court of competent jurisdiction, including

the juvenile division of circuit court, to [h]ave subjected any juvenile to aggravated

circumstances.” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A). “Aggravated

circumstances” means “[a] juvenile has been abandoned, chronically abused, subjected to

extreme or repeated cruelty, sexually abused, or a determination has been or is made by a

judge that there is little likelihood that services to the family will result in successful

reunification[.]” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B). Here, the trial court

specifically found that there was little likelihood that services to the family would result in

successful reunification. Second, the trial court found that “[o]ther factors or issues arose

subsequent to the filing of the original petition for dependency-neglect that demonstrate that

placement of the juvenile in the custody of the parent is contrary to the juvenile’s health,

safety, or welfare and that, despite the offer of appropriate family services, the parent has

manifested the incapacity or indifference to remedy the subsequent issues or factors or

rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the

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custody of the parent.” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).

Matlock was incarcerated at the time of the termination hearing for at least another

year, and there was no evidence that she could provide for the child. Furthermore, she failed

to attempt to remedy the issues prohibiting reunification even when she was not incarcerated

by refusing services and openly admitting that she missed visitation with D.W. in part because

she was using drugs and lacked a stable home. Furthermore, an adoption specialist testified

that there was a high potential for D.W. to be adopted, with more than 400 matching families

on the list, because of D.W.’s young age and lack of any major health or developmental

delays. Thus, the trial court’s decision to terminate Matlock’s parental rights was not clearly

erroneous, and we agree that any appeal challenging the sufficiency of the evidence would be

wholly without merit.

Matlock filed a letter as her pro se points on appeal on January 2, 2015. In her letter,

she argues that she wishes to appeal her case and that she wishes her son to be placed with his

aunt or another family member. To the extent Matlock is contesting the sufficiency of the

termination, the trial court’s decision to terminate Matlock’s parental rights was not clearly

erroneous based on the evidence that was before the court, and appellant’s counsel has

adequately addressed the sufficiency-of-the-evidence argument in the no-merit brief.

Additionally, Matlock’s contention that D.W. should have been placed in the custody of a

relative lacks merit. According to the public policy of this state, termination and adoption are

preferred to permanent relative placement. Friend v. Ark. Dep’t of Human Servs., 2009 Ark.

App. 606, 344 S.W.3d 670. Furthermore, the court’s order does not specifically preclude a

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family member from seeking D.W.’s adoption.

Thus, having carefully examined the record and the brief presented to us, we find that

counsel has complied with the requirements established by the Arkansas Supreme Court for

no-merit appeals in termination cases, and we conclude that the appeal is wholly without

merit. Accordingly, we affirm the order terminating appellant’s parental rights and grant

counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

ABRAMSON and HIXSON, JJ., agree

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Tabitha Baertels McNulty, DHS Office of Policy and Legal Services; and Chrestman

Group, PLLC, by: Keith L. Chrestman, for appellees.

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