Rhonda Long and Allen Winemiller v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA05-122

DECEMBER 14, 2005

RHONDA LONG and ALLEN AN APPEAL FROM THE LAWRENCE

WINEMILLER COUNTY CIRCUIT COURT [JV 2003-36]

APPELLANTS

V.

ARKANSAS DEPARTMENT OF HONORABLE KEVIN KING, JUDGE

HUMAN SERVICES

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant Rhonda Long is mother to E.L. and M.W.1 The court adjudicated appellant Allen Winemiller as the father of M.W. The facts are these. Appellee, Arkansas Department of Human Services (ADHS), placed a seventy-two hour hold on E.L. and M.W. on April 14, 2003, after allegations of inadequate food and supervision, inadequate housing, and medical neglect. Long tested positive for marijuana and cocaine at the probable-cause hearing. Thereafter, Long stipulated to a finding of dependency-neglect based on medical neglect in May 2003. The parents were ordered to cooperate with ADHS and to follow the case plan; obtain stable housing and employment; get a drug assessment; use no illegal drugs or any medications not prescribed for them by a physician; submit to random drug tests; and allow no other persons to live in their home. Subsequently, both parties' parental rights were terminated as to the minor children involved herein. This no-merit appeal followed.

Pursuant to Linker-Flores v. Arkansas Department of Human Services, ___ Ark. ___, ___ S.W.3d ___ (Oct. 7, 2004)(Linker-Flores I), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellants' counsels, after a conscientious review of the record, have tendered a joint motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly presenting a thorough and professional evaluation of the record and discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellants were provided with a copy of their counsel's brief and notified of their right to file a list of points on appeal within thirty days; they filed no points.

Our review of adverse rulings in no-merit termination-of-parental-rights cases is limited to the termination hearing. Linker-Flores v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Nov. 17, 2005)(Linker-Flores II); Lewis v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Nov. 17, 2005). However, in determining what constitutes a "conscientious review of the record" for purposes of reviewing the sufficiency of the evidence, the supreme court has provided that "we must examine evidence from all hearings and proceedings in the case, as the circuit court took judicial notice and incorporated by reference into the record all pleadings and testimony in the case that occurred before the termination-of-parental-rights hearing." Lewis v. Arkansas Dep't of Human Servs., ___ Ark. at ___, ___ S.W.3d at ___(citing Ark. Code Ann. § 9-27-341(d)(2)). "If this court determines, after a full examination, of the record, that the appeal is frivolous, the court may grant counsel's motion and dismiss the appeal.2 If, however, we find any of the legalpoints arguable on their merits, we will appoint new counsel to argue the appeal."3 Linker-Flores I, ___ Ark. at ___, ___ S.W.3d at ___.

Appellant Rhonda Long

The only adverse ruling found in the record is the denial of counsel's motion for directed verdict based on the lack of sufficient evidence presented by ADHS. An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2002). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2002). One such set of circumstances that may support the termination of parental rights is when the "juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent." Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2002).

In the instant case, the evidence overwhelmingly showed that, throughout the case, Long had failed to comply with the case plan. At the time of the termination hearing, she had not established a safe stable home with utilities, had not completed parenting or drug/alcoholassessment, had not attended all scheduled visitations, and had tested positive for drugs several times.

Appellant Allen Winemiller

The first adverse ruling was the denial of appellant's motion for a continuance. At the termination hearing, appellant Winemiller's new counsel requested a continuance because his client had recently been released from prison and wished to have more time to work toward the goal of reunification. ADHS objected to the continuance, arguing that there was no statutory provision to allow Winemiller more time under those circumstances. It further argued that appellant was incarcerated for acts which resulted from his own actions and that the child was entitled to permanency since he had been in foster care since April 2003, when Winemiller was not incarcerated and at which time he had ample opportunity to benefit from ADHS services and to establish a relationship with his son.

The grant or denial of a motion for continuance is within the sound discretion of the trial court, and the trial court's decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). The court may, upon motion and for good cause shown, continue any case previously set for trial. Dorothy v. Dorothy, ___ Ark. App. ___, ___ S.W.3d ___ (Dec. 1, 2004)(citing Ark. R. Civ. P. 40(b)). The burden of proving an abuse of discretion due to prejudice resulting from the denial of a continuance is on appellant. See Dodson v. State, ___ Ark. ___, ___ S.W.3d ___ (Sept. 16, 2004). In this instance, there was no abuse of discretion.

The final adverse ruling, which counsel failed to address, is the sufficiency of the evidence to terminate Winemiller's parental rights. Generally speaking, if a no-merit brief fails to address all the adverse rulings, we will send it back for rebriefing. Linker-Flores II, supra. If we are to follow the criminal no-merit guidelines, as duly noted by our supremecourt in Linker-Flores II, Winemiller's counsel would be required to rebrief his appeal. See Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000)(where appellant's counsel failed to discuss the sufficiency of the evidence, the appellate court ordered rebriefing). This court cannot affirm an appellant's conviction without any discussion as to why a particular ruling by the trial court should not be meritorious grounds for reversal. Brady v.State, 346 Ark. 298, 57 S.W.3d 691 (2001). However, as this adverse ruling was clearly not meritorious, we decline to order rebriefing so as to avoid any further delay in this case.

The evidence clearly indicates that Winemiller had not established a relationship with his son and had recently been released from prison and required to stay in his mother's home for the next six months. Although his mother's home had been approved previously, at the time of the termination hearing there were four adults and three children living in the home, and the home was no longer a suitable option. Furthermore, appellant Winemiller had failed to provide support and had failed, during his incarceration, to contact his son.

The record has been reviewed in accordance with Linker-Flores and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We have concluded that there were no errors with respect to rulings adverse to the appellants and that this appeal is without merit. Accordingly, counsels' motions to be relieved are granted, and the orders terminating appellants' parental rights are affirmed.

Affirmed.

Hart and Vaught, JJ., agree.

1 Appellant Rhonda Long's husband, Larry Long, also had his parental rights terminated as to E.L. The termination of his parental rights are not subject to this appeal.

2 The procedure of our appellate courts pursuant to Anders v. California, 386 U.S. 738 (1967), is to grant counsel's motion to withdraw and affirm the conviction, not dismiss the appeal. Smith v. Arkansas Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (Dec. 7, 2005)(citingMoore v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 21, 2005)).

3 The procedure of our appellate courts pursuant to Anders v. California, 386 U.S. 738 (1967), is to deny appellant's counsel's motion to withdraw and remand the case for rebriefing in adversary form, not appoint new counsel to argue the appeal. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001).