Cite as

ARKANSAS COURT OF APPEALS DIVISION II No. CV-15-52

Opinion Delivered August 26, 2015

JENNIFER BROWN APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT [NO. JV-2014-631]

V. HONORABLE VICKI SHAW COOK, JUDGE

ARKANSAS DEPARTMENT OF MOTION TO WITHDRAW DENIED; HUMAN SERVICES and MINOR REBRIEFING AS A MERIT APPEAL CHILD ORDERED APPELLEES

PHILLIP T. WHITEAKER, Judge

The Appellant, Jennifer Brown, is the mother to daughter, S.B. She appeals the

Garland County Circuit Court’s order terminating her parental rights. Her attorney has filed

a motion to be relieved from representation and a no-merit brief pursuant to Linker-Flores v.

Arkansas Department of Human Services,

,

(2004), and Arkansas

Supreme Court and Court of Appeals Rule 6-9(i), explaining that the adverse rulings from

the termination hearing present no nonfrivolous grounds for appeal. However, following our

review of the record in this case, we are not convinced that the appeal would be so wholly

without merit as to satisfy the requirements of

and Rule 6-9(i). We

therefore deny the motion to withdraw and order rebriefing in merit format. Cite as

The following facts concerning the child’s removal and the court proceedings are

relevant to our determination. On September 4, 2014, the Department of Human Services

(DHS) received a hotline referral alleging that the appellant was using methamphetamine

while caring for eight-month-old S.B. A family service worker conducted a home assessment

and confirmed drug usage1 in the presence of the child. Instead of removing the child, the

family service worker developed a protection plan allowing the child to remain with the

appellant, provided that she not use drugs unless they were prescribed to her.

The next day, the appellant contacted DHS requesting help. The appellant informed

the family service worker that she was concerned for S.B.’s safety because S.B.’s homeless and

drug-addicted father, Frederick Brown, had taken the child from the home with nothing but

a bottle and the clothes and diaper the child was wearing. The family service worker located

Mr. Brown and the child at his sister’s house. He tested positive for methamphetamine,

amphetamine, cocaine, and THC. At that time, the family service worker removed the child

and instituted a seventy-two-hour hold.

After the child had been removed, the family service worker obtained additional

information on the appellant, including her social security number. A subsequent CHRIS

check revealed that appellant had a history with DHS, including an involuntary termination

of another child.

An ex parte order for emergency custody was entered on September 9, 2014, and

counsel was appointed. A probable-cause order was entered the next day. The only services

1 Brown tested positive for methamphetamine, amphetamine, and benzodiazepine. Brown produced a prescription for the amphetamine.

2 Cite as

ordered at that time were directed at the father, Frederick Brown. No services were offered

to the appellant-mother, except supervised visitation with the child.

On September 11, 2014—less than one week after removal—DHS filed a petition to

terminate the appellant’s parental rights. As the grounds for termination, DHS alleged that,

in September 2009, her parental rights to one of S.B.’s siblings had been involuntarily

terminated. DHS did not seek to terminate the parental rights of Frederick Brown at that

time.

The adjudication and termination hearings were held simultaneously on October 23,

2014. At the hearing, counsel for appellant attempted to introduce evidence that S.B. was not

born with drugs in her system in contrast to the children for whom appellant’s previous rights

had been terminated. The trial court denied admission of such evidence, determining that

such evidence was not relevant, and then prevented counsel from completing a proffer of that

evidence upon further objection by DHS.

The trial court adjudicated the child dependent-neglected and ultimately found that

termination was in the best interest of the child. Separate orders of adjudication and for

termination of parental rights were entered on October 28, 2014.

Based on this record, we are not convinced that the appeal would be so wholly

without merit as to satisfy the requirements of

and Rule 6-9(i). This case

involved an expedited termination of parental rights2 without the provision of any

reunification services to the appellant-mother. However, the behavior of both parents

2 The termination hearing was held just forty-eight days after the child’s removal, and the termination order was entered only fifty-three days after removal.

3 Cite as

contributed to the removal of the child, including the drug usage of both. Admittedly, the

appellant has a previous history with DHS not shared by the father, but she was in compliance

with DHS directives both before the removal and prior to the termination. Given these facts,

a nonfrivolous argument could be made that termination of the mother’s parental rights was

not immediately necessary to provide the child with permanency and that the appellant’s

actions did not require such a swift and irrevocable break of the parental relationship in order

to prevent harm to this child.

We also find that a nonfrivolous argument could be made that the trial court’s rulings

on DHS’s relevancy objections were in error or that the trial court’s prevention of the proffer

was in error. DHS was relying on its past history with the appellant to make the case that

termination was in this child’s best interest, and this evidence was received by the court as

relevant. However, when appellant attempted to rebut that argument by highlighting the

differences between this case and her previous cases, the trial court held that this information

was not relevant. A nonfrivolous argument could be made that evidence of the parent’s

history with the particular child at issue in the termination is actually relevant to whether the

parent’s parental rights to that particular child should be terminated.

Our recitation of these potential issues does not dictate how counsel should structure

a merit brief, the extent or nature of the arguments that should be made, or whether any

procedural bar or other evidentiary items may exist to defeat them; nor does it guarantee any

appellate outcome. The factors merely demonstrate why we were not able to conclude that

4 Cite as

an appeal in this case would be so wholly without merit as to subject counsel to possible

ethical repercussions for filing a frivolous appeal.

Motion to withdraw denied; rebriefing as a merit appeal ordered.

VAUGHT and HIXSON , JJ., agree.

Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.

No response.

5