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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.,

, 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

Linker-Flores v. Arkansas Department of Human Services,

,

(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.,

.

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.,

. 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.,

,

(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.

(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.

2 Cite as

M.T. v. Ark. Dep’t of Human Servs.,

,

(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,

,

(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.,

,

(1997). Credibility determinations are

left to the fact finder, here the trial court. Moiser v. Ark. Dep’t of Human Servs.,

,

(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.

(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.,

,

(2005); Cole v. Ark. Dep’t of Human

Servs.,

,

; Tucker v. Ark. Dep’t of Human Servs.,

,

. A parent’s past behavior is often a good indicator of future

behavior. Stephens v. Ark. Dep’t of Human Servs.,

, 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.,

.

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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