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Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-15 10:45:09 DIVISION IV Foxit PhantomPDF Version: 9.7.5 No. CV-20-272

Opinion Delivered: October 7, 2020 JASMINE THOMAS APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, EIGHTH DIVISION ARKANSAS DEPARTMENT OF [NO. 60JV-18-1561] HUMAN SERVICES AND MINOR CHILDREN APPELLEES HONORABLE WILEY A. BRANTON, JR., JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

RITA W. GRUBER, Chief Judge

Counsel for Jasmine Thomas brings this no-merit appeal from the Pulaski County

Circuit Court’s order entered on January 28, 2020, terminating her parental rights to her

three children, JT1 (born 7/23/2015); JT2 (born 9/10/2017); and JT3 (born 3/24/2019).

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

,

(2004), and Arkansas Supreme Court Rule 6-9(i), her 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. The clerk of this court sent a copy of the brief and motion to be relieved to

appellant, informing her that she had the right to file pro se points for reversal under Arkansas

Supreme Court Rule 6-9(i)(3). She has filed no points. We grant counsel’s motion to

withdraw and affirm the order terminating appellant’s parental rights. The Arkansas Department of Human Services (DHS) became involved with Thomas

on July 9, 2018, after JT2 was taken to the hospital suffering from seizures. At the hospital,

JT2 tested positive for “cannabinoids.” DHS offered services, including making a referral

for drug-and-alcohol assessment and counseling services. Over the next three months,

Thomas tested positive for drugs, was evicted from her home, and lived with various

relatives and in a shelter.

On December 9, 2018, DHS received another call of neglect regarding the family

after JT2 was again taken to the hospital for seizures and tested positive for THC. After this

incident, Thomas took her children and enrolled in Arkansas Cares for treatment, but on

December 25, DHS was alerted that Thomas had expressed a desire to leave the program.

On December 26, DHS received hair-follicle tests for JT1 and JT2, who were both positive

for drugs: JT1 for methamphetamine and JT2 for THC, methamphetamine, and cocaine.

Thomas was discharged from treatment without completing the program, was homeless,

and had no suitable place for her children, prompting DHS to exercise an emergency

seventy-two-hour hold on the children. In an order entered March 25, 2019, the children

were adjudicated dependent-neglected as a result of parental unfitness due to parental

instability and drug use. Thomas was ordered to submit to a drug-and-alcohol assessment

and follow any recommendations, complete a psychological evaluation and follow the

recommendations, submit to random drug and alcohol screens, participate in parenting

classes, and maintain stable and appropriate housing. On March 24, 2019, JT3 was born.

Both Thomas and JT3 tested positive for methamphetamine at the birth, and DHS exercised

2 an emergency hold on JT3. This child was adjudicated dependent-neglected on August 22,

and the case was consolidated with the case involving JT1 and JT2.

In a review order entered on June 18, the court referenced a report showing that

Thomas had several negative drug screens in February and March and three positive drug

screens in March and May. The court also found that Thomas attended a psychological

evaluation but was “less than fully cooperative with the process” and declined to complete

several assessments designed to provide information regarding her personality and

psychopathology. The court found Thomas had no income, had been living “couch to

couch” with various people throughout the case, and had made no material progress to find

stable and appropriate housing for her children.

On September 17, the court held a permanency-planning hearing. Thomas failed to

appear. A report of Thomas’s drug screens was introduced demonstrating two negative

screens and three positive screens—June 18 for methamphetamine and amphetamine,

August 2 for methamphetamine, and August 30 for cocaine, codeine, PCP,

methamphetamine, amphetamine, and THC. The court found that Thomas had failed to

make any material progress, continued to lack stability, continued to use drugs, and had

failed to remediate the conditions that caused removal of her children. The court found by

clear and convincing evidence that Thomas had subjected the children to aggravated

circumstances in that it was unlikely that services to the family would result in successful

reunification within a reasonable period of time. The court also ordered DHS to make

arrangements for an updated home study on the home of JT1’s paternal grandmother if she

3 timely asked for one.1 The court also stated that for the grandmother to be considered as a

placement for JT1, she would be required to submit to a psychological evaluation.

DHS filed a petition for termination of parental rights on October 14, and the circuit

court granted the petition in an order entered January 28, 2020, finding that DHS had

proved the failure-to-remedy ground as to JT1 and JT2 and had proved the subsequent-

factors ground and the aggravated-circumstances ground as to all three children. The court

also found that DHS had proved by clear and convincing evidence that termination was in

the children’s best interest.

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

Human Servs.,

. At least one statutory ground must exist, in addition

to a finding that it is in the child’s best interest to terminate parental rights; these must be

proved by clear and convincing evidence.

(Supp. 2019). 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 circuit 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. Moiser v. Ark. Dep’t of Human Servs.,

,

(2006).

Counsel correctly asserts that there can be no meritorious challenge to the sufficiency

of the evidence supporting the termination of Thomas’s parental rights. Although the circuit

1 In previous visits to the home, DHS had found the home to be cluttered and unsafe.

4 court found three statutory grounds for termination, only one ground is necessary to support

the termination. Westbrook v. Ark. Dep’t of Human Servs.,

,

, 261. Counsel focuses on the aggravated-circumstances ground that it is unlikely

that services to the family would result in successful reunification within a reasonable period

of time.

(b)(3)(B)(ix)(a)(3) (Supp. 2019). Counsel correctly

notes that Thomas is procedurally barred from challenging termination of her parental rights

for aggravated circumstances because the finding was originally made in the permanency-

planning order and not previously appealed.2 While a termination order might bring up all

intermediate orders, including an unappealed permanency-planning order, the intermediate

order must be designated in the notice of appeal. See, e.g., Horton v. Ark. Dep’t of Human

Servs.,

,

; Gyalog v. Ark. Dep’t of Human

Servs.,

,

. There was no designation here. In any case,

the absolute lack of progress made by Thomas regarding her drug use, stable housing, or

employment and her failure to cooperate with her psychological evaluation support

termination of her rights for aggravated circumstances, and any argument to the contrary

would be without merit.

Counsel also adequately explains that the circuit court’s best-interest finding is

supported by clear and convincing evidence and that no issue of arguable merit could be

asserted on appeal as to the sufficiency thereof. The adoption specialist and the DHS

caseworker testified that the children were adoptable and could be adopted together. One

2 Permanency-planning orders are immediately appealable if the order contains a certificate pursuant to Arkansas Rule of Civil Procedure 54(b).

5 hundred twenty-seven families had been identified as willing to adopt a sibling group

matching these children’s characteristics. There was also evidence supporting potential harm

to the children, who all tested positive for drugs while in Thomas’s care. Thomas continued

to use drugs throughout the case, did not complete drug treatment, never obtained stable

income or housing, and failed to complete any services to address these issues.

In addition to the sufficiency of the evidence, counsel has addressed two requests

made by Thomas’s counsel in her closing argument. Counsel stated that Thomas’s mother

or other family member may be interested in having custody of the children if custody were

not returned to Thomas. Counsel also asked the court to allow Thomas more time for

reunification. With regard to Thomas’s request for more time, as counsel has stated in her

brief, we have frequently recognized that a child’s need for permanency and stability may

override a parent’s request for more time to improve the parent’s circumstances. See Fredrick

v. Ark. Dep’t of Human Servs.,

,

. DHS

initially became involved with this family in July 2018 when JT2 tested positive for drugs.

From that time until the termination hearing in January 2019, despite DHS’s offer of

services, Thomas continued to use drugs and failed to address her addiction. She also failed

to obtain employment or stable housing. She made no progress toward reunification with

her children. There is no evidence that more time in this case would lead to a successful

reunification.

Regarding relative placement, no relatives were approved for placement. The DHS

caseworker, Chandler Ross, testified that Thomas’s mother had contacted her but did not

ask to have the children. Ms. Ross told her to contact the office for a background check if

6 she was interested in custody. She never did so. We have held that where relatives have not

been approved for placement and the children remained in foster care, the existence of

potential relatives was not a basis to reverse a termination decision. Dominguez v. Ark. Dep’t

of Human Servs.,

,

.

From our examination of the record and the brief presented to us, we have

determined that counsel has complied with the requirements established by the Arkansas

Supreme Court for no-merit appeals in termination cases, and we hold that the appeal is

wholly without merit. Accordingly, we affirm the termination order and grant counsel’s

motion to withdraw.

Affirmed; motion to withdraw granted.

VAUGHT and MURPHY, JJ., agree.

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

One brief only.

7