Ella Cox v. Arkansas Department of Human Services and Minor Child

Cite as 2022 Ark. App. 26
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION IV
2023.08.15 11:08:27 -05'00' No. CV-21-292
2023.003.20269
Opinion Delivered January 19, 2022

ELLA COX APPEAL FROM THE
APPELLANT WASHINGTON COUNTY
CIRCUIT COURT
V. [NO. 72JV-20-197]

ARKANSAS DEPARTMENT OF HUMAN HONORABLE STACEY
SERVICES AND MINOR CHILD ZIMMERMAN, JUDGE
APPELLEES
AFFIRMED; MOTION TO
WITHDRAW GRANTED

MIKE MURPHY, Judge

Ella Cox appeals the termination of her parental rights to JC, who was two weeks

old at the time of removal. Cox’s counsel has filed a motion to withdraw and 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(j) (2020); Linker-Flores v. Ark. Dep’t of Hum. Servs.,

359 Ark. 131, 194 S.W.3d 739 (2004).

Our court clerk mailed a certified copy of counsel’s motion and brief to Cox’s last-

known address informing her of her right to file pro se points for reversal. Williams has not

filed pro se points for reversal, and the Arkansas Department of Human Services (DHS) has

not filed a brief. We affirm the Washington County Circuit Court’s decision to terminate

Cox’s parental rights and grant her counsel’s motion to withdraw.

Ella Cox and her husband, Garry, have intellectual disabilities that affect their ability
to parent safely. Garry does not appeal the termination. Ella has had her parental rights

terminated as to other children, two in California and another in Oklahoma. JC came into

DHS custody in February 2020 when DHS received notice of the family’s history in

Oklahoma. Upon notice, a family service worker located the Coxes at a hotel. The family

service worker was concerned with how the parents handled JC and with the statement

that, after that night, the family would be homeless. DHS exercised an emergency hold. JC

was later adjudicated dependent-neglected due to neglect and parental unfitness. The initial

goal of the case was for reunification with a concurrent goal of adoption.

Ella was afforded, among other services, a psychological evaluation, transportation to

visitation with JC, homemaker services, and one-on-one parenting classes. The individual

classes were an attempt by DHS to accommodate Ella’s intellectual disability. The case

progressed. In a permanency-planning order dated February 24, 2021, the court noted that

DHS testified that the parents would need an aide around the clock to meet JC’s basic needs.

About a year after removal, DHS filed a petition to terminate the Coxes’ parental rights,

alleging that termination of parental rights would be in JC’s best interest. The following

grounds were pleaded: twelve months failure to remedy, Ark. Code Ann. § 9-27-

341(b)(3)(B)(i)(a) (Supp. 2021); subsequent factors, Ark. Code Ann. § 9-27-

341(b)(3)(B)(vii)(a); aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)

(a)(3); and that Ella has had her parental rights involuntarily terminated as to another child,

Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4).

At the termination hearing, the court heard testimony surrounding JC’s removal and

DHS’s attempts to work with Ella to learn how to parent safely. After a year of services,

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DHS was concerned that Ella would soon be homeless again and had not progressed to a

point where she could safely parent JC and meet his needs. The court heard about the

conditions surrounding the removal and subsequent adoptions of JC’s siblings, namely, the

parents’ instability and inability to safely care for their children.

Ella testified that she was divorcing Garry (who was, by then, in prison for arson)

and living alone. She asked for more time to work with local agencies to find housing and

to get some stability. She felt like she had done everything asked of her by DHS and wanted

to know if people got their rights terminated just “because they’re totally different than

regular people.”

The court heard testimony that JC was happy, healthy, and growing in his foster

placement; that he is adoptable; and that his current foster parents were interested in

adopting him.

At the conclusion of the hearing, Ella’s parental rights were terminated for the

grounds alleged in the petition. The circuit court found that DHS had proved the existence

of one or more grounds alleged in its petition and that termination was in JC’s best interest.

An order to that effect followed, and from that order Ella timely appealed.

We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep’t of

Hum. Servs., 2012 Ark. App. 209, 396 S.W.3d 272. An order terminating parental rights

must be based on a finding by clear and convincing evidence that the sought-after

termination is in the children’s best interest. The circuit court must consider the likelihood

that the children will be adopted if the parent’s rights are terminated and the potential harm

that could be caused if the children are returned to a parent. Harper v. Ark. Dep’t of Hum.

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Servs., 2011 Ark. App. 280, 378 S.W.3d 884.

The circuit court must also find that one of the grounds stated in the termination

statute is satisfied. Id. Clear and convincing evidence is that degree of proof that will produce

in the fact-finder a firm conviction that the allegation has been established. Pratt v. Ark.

Dep’t of Hum. Servs., 2012 Ark. App. 399, 413 S.W.3d 261. When the burden of proving a

disputed fact is by clear and convincing evidence, we ask whether the circuit court’s finding

on the disputed fact is clearly erroneous. Id. A finding is clearly erroneous when, 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 brief and move to withdraw. Ark. Sup. Ct. R. 6-9(j)(1). The

brief must include an argument section that lists all adverse rulings that the parent received

at the circuit court level and explain why each adverse ruling is not a meritorious ground

for reversal. Ark. Sup. Ct. R. 6-9(j)(1)(A). The brief must also include a statement of the

case and the facts containing all rulings adverse to the appealing parent that were made

during the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-9(j)(1)(B);

Ark. Sup. Ct. R. 4-2(a)(7).

In appellant’s counsel’s no-merit brief, 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 Ella’s parental rights. Although the

trial court found four statutory grounds for termination, only one ground is necessary to

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support the termination. See Campbell v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 82. In

this case, it is undisputed that before the initiation of these proceedings, Ella had her parental

rights involuntarily terminated as to JC’s older siblings. One of the statutory grounds found

by the circuit court was that, under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4), Ella had

her parental rights involuntarily terminated as to another child. The circuit court wrote that

[b]oth parents have previously had their parental rights involuntarily terminated as to
a sibling of the juvenile. Specifically, the parents had their parental rights terminated
in Shasta County, California as to two siblings of the juvenile in 2013. The parents
have also had their parental rights involuntarily terminated as to another sibling of
the juvenile in Ottawa County, Oklahoma [ ]. The parents’ prior terminations were
for the same reason that [JC] came into foster care-instability and inability to meet
his needs and keep him safe. This ground supported termination of Ella’s parental
rights and any argument to the contrary would be without merit.

Next, counsel states in her no-merit brief that any argument challenging the circuit

court’s best-interest findings would be wholly frivolous. Pursuant to Arkansas Code

Annotated section 9-27-341(b)(3), an order forever terminating parental rights shall be based

on a finding by clear and convincing evidence that it is in the best interest of the juvenile,

including consideration of the likelihood that the juvenile will be adopted and the potential

harm to the health and safety of the juvenile if returned to the custody of the parent. In its

order, the court specifically found that it had considered adoptability and potential harm to

the child. Thus, the court considered both best-interest factors.

In the present case, DHS offered the undisputed testimony of the family service-

worker supervisor, KC Oliver, who testified that JC is adoptable and there are no barriers

preventing him from being adopted. Later in the hearing, JC’s foster mother testified that

her family is interested in adopting JC. A caseworker’s testimony that a child is adoptable is

sufficient to support an adoptability finding. See, e.g., Cole v. Ark. Dep’t of Hum. Servs., 2018

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Ark. App, 121, 543 S.W.3d 540. There would be no meritorious challenge to the

adoptability issue.

And we agree with Ella’s counsel that any challenge to the potential-harm prong of

the best-interest finding would be wholly frivolous. Potential harm must be viewed in a

forward-looking manner and considered in broad terms. Dowdy v. Ark. Dep’t of Hum. Servs.,

2009 Ark. App. 180, 314 S.W.3d 722. Here, the circuit court found that JC’s health and

safety would be at a risk of potential harm if returned to Ella’s custody. It found that Ella

had not demonstrated that she could even meet JC’s needs during her supervised visits, and

her limited mental capacity—while not determinative in itself—made her unable to meet

JC’s basic needs and keep him safe from harm. This is supported by the record.

JC came into DHS custody after a DHS worker observed his soon-to-be homeless

parents handling him roughly. Ella threw her two-week-old baby to the DHS worker. DHS

provided Ella fourteen weeks of services, including one-on-one services to try and help her

learn how to parent appropriately. After a year of intensive personal instruction she was still

unable to care for JC without constant supervision. At the hearing she was, again, soon to

be homeless. It cannot be meritoriously argued that there was insufficient evidence to

support the court’s finding that JC would be subject to potential harm if returned to Ella’s

care.

Finally, there is no merit to Ella’s request for more time to get settled in new housing

and to continue working to be reunited with JC. The intent of the termination statute is to

provide permanency in a child’s life in all instances where the child cannot return to the

family home, and it appears from the evidence that a return cannot be accomplished within

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a reasonable period of time as viewed from the child’s perspective. See Ark. Code Ann. §

9-27-341(a)(3). By the time of the hearing JC had spent all but two weeks of his life in

foster care. Given Ella’s inability to progress to a point where she could safely care for JC

after over a year of services, it was not erroneous for the court to intrinsically deny this

request in terminating her parental rights to JC.

Having examined the record and Ella’s counsel’s brief, we have determined that this

appeal is wholly without merit. Accordingly, we affirm the order terminating Ella’s parental

rights and grant her counsel’s motion to be relieved from representation.

Affirmed; motion to withdraw granted.

GRUBER and BARRETT, JJ., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

One brief only.

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