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ARKANSAS COURT OF APPEALS DIVISION III CV-17-251 No.

FRANCESCA MERCADO Opinion Delivered: October 4, 2017 APPELLANT APPEAL FROM THE SEBASTIAN V. COUNTY CIRCUIT COURT, FORT SMITH DISTRICT ARKANSAS DEPARTMENT OF HUMAN [NO. 66FJV-16-284] SERVICES AND MINOR CHILD APPELLEES HONORABLE JIM D. SPEARS, JUDGE

AFFFIRMED; MOTION GRANTED

RITA W. GRUBER, Chief Judge

Counsel for Francesca Mercado brings this no-merit appeal from the circuit court’s

December 28, 2016 order terminating Mercado’s parental rights to A.M., who was born on

February 27, 2016. Pursuant to Linker-Flores v. Arkansas Department of Human Services,

,

(2004), and Arkansas Supreme Court Rule 6-9(i), counsel has

filed a no-merit brief setting forth all adverse rulings from the termination hearing and

asserting that there are no issues that would support a meritorious appeal. Counsel has also

filed a motion asking to be relieved. Mercado has filed pro se points. The Arkansas

Department of Human Services (DHS) and the minor child’s counsel have responded to

those pro se points. We grant counsel’s motion to withdraw and affirm the termination

order.

Termination of parental rights is a two-step process requiring a determination that

the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark. Cite as

Dep’t of Human Servs.,

,

. The first step requires

proof of one or more statutory grounds for termination; the second step requires

consideration of whether termination is in the juvenile’s best interest.

(b)(3)(B), (A) (Repl. 2015). Each of these requires proof by clear and convincing

evidence, which is the degree of proof that will produce in the fact-finder a firm conviction

regarding the allegation sought to be established.

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

Human Servs.,

. Our inquiry is whether the circuit court’s finding

that the disputed fact was proved by clear and convincing evidence is clearly erroneous.

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.

In resolving the clearly erroneous question, the reviewing

court defers to the circuit court’s superior opportunity to observe the parties and to judge

the witnesses’ credibility. Brumley v. Ark. Dep’t of Human Servs.,

.

In Mercado v. Arkansas Department of Human Services,

,

(Mercado I), we recounted earlier proceedings in this case:

On June 17, 2016, the Arkansas Department of Human Services (DHS) exercised a 72-hour hold on three-month-old A.M. after a medical examination at Arkansas Children’s Hospital revealed bone fractures, head trauma, brain damage, and a subdural hematoma. A probable-cause order was entered on August 17, 2016, continuing custody of A.M. with DHS. The court held a hearing on September 12, 2016, after DHS filed a motion to terminate reunification services. Dr. Karen Farst, a specialist in child-abuse pediatrics who examined A.M. at Children’s, testified at the hearing that A.M.’s head injury was a “near fatality” and that her injuries were “indicative of physical abuse.” Following the hearing, the circuit court adjudicated A.M. dependent-neglected with the stated goal of adoption, and granted DHSs’ motion to terminate reunification services. The court entered a separate order

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denying appellant’s petition for a second medical-expert opinion. The court attached Rule 54(b) certificates to both orders.

Mercado I,

, at 1–2, 519 S.W.3d at 715–16. Mercado filed her notice of

appeal in Mercado I from the circuit court’s orders adjudicating A.M. dependent-neglected,

relieving DHS from providing reunification services, and denying Mercado’s petition for a

second medical-expert opinion. However, her sole point on appeal was that the circuit

court erred in denying her petition for a separate medical expert. We affirmed. Id. at 3,

.

In the order terminating Mercado’s parental rights, the circuit court found that the

State had proved two statutory grounds. The first ground states, as relevant to the present

case:

(vi) The court has found the juvenile . . . dependent-neglected as a result of neglect or abuse that could endanger the life of the child, . . . which was perpetrated by the juvenile’s parent or parents or stepparent or stepparents. .... (b) Such findings by the juvenile division of circuit court shall constitute grounds for immediate termination of the parental rights of one (1) or both of the parents;

(b)(3)(B)(vi)(a) & (b). Under the second ground,

a court of competent jurisdiction has found the parent to have subjected any juvenile to

aggravated circumstances.

(b)(3)(B)(ix) (Repl. 2015).

“Aggravated circumstances” means, in relevant part, that a juvenile has been “chronically

abused, subjected to extreme or repeated cruelty”; or that a determination has been made

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

reunification.”

(b)(3)(B)(ix)(a)(3)(B)(i).

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In termination cases, a challenge to a finding of abuse or aggravated circumstances

must be made, if at all, in an appeal from the adjudication hearing. Hannah v. Ark. Dep’t of

Human Servs.,

, at 4 (citing Dowdy v. Ark. Dep’t of Human Servs.,

,

). Here, the two statutory grounds for termination were

based on previous findings in the adjudication order. Thus, counsel states in the present

no-merit appeal that there can be no challenge to the grounds for termination because they

were not challenged in the appeal of the adjudication order.

Counsel also states that the court’s best-interest finding does not provide a basis for

reversal. The best-interest analysis includes consideration of the likelihood that the juvenile

will be adopted and of the potential harm caused by returning custody of the child to the

parent.

(b)(3)(A). Counsel concludes that, particularly in light

of our great deference to the circuit court’s superior ability to determine credibility of

witnesses, there was sufficient evidence to support the circuit court’s finding that

termination of Mercado’s parental rights was in A.M.’s best interest. Wafford v. Ark. Dep’t

of Human Servs.,

,

.

In addition to the statutory grounds for termination and the court’s best-interest

analysis, the court made other rulings adverse to Mercado. Counsel’s brief includes a

discussion of each ruling that was preserved for review, along with an explanation of why

reversal is not warranted.

Pro Se Points

Mercado asserts in her pro se points that she did not neglect or abuse A.M. She raises

various arguments: (1) even after DHS had stopped providing services, she (Mercado)

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finished almost everything she had been asked to do but was given no chance to finish before

the case moved to termination; (2) the portion of the expert-witness doctor’s testimony

“that went along” with Mercado’s testimony was treated as a lie; (3) her attorney did not

try to get a second expert; (4) her version of events was not considered; (5) the CT scan did

not determine the time of injury; (6) the stepfather should not be blamed; and (7) the court

wasn’t sure about A.M.’s adoptability. DHS and A.M.’s attorney ad litem responded to the

pro-se points, incorporating the no-merit brief of Mercado’s counsel verbatim and resting

on those explanations as to why the detailed adverse decisions are not erroneous. They also

respond that Mercado’s new arguments cannot be made for the first time on appeal, Ark.

Dep’t of Health & Human Servs. v. Jones,

,

(2007),

and that the weight of the evidence was a matter for the circuit court.

We agree with the response of DHS and the attorney ad litem to Mercado’s points.

Based on our examination of 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 briefs in termination cases, and we hold that the appeal is without merit.

Affirmed; motion granted.

WHITEAKER and BROWN, JJ., agree.

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

One brief only.

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