Brandi Smith v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA05-593

DECEMBER 14, 2005

BRANDI SMITH AN APPEAL FROM THE GREENE

APPELLANT COUNTY CIRCUIT COURT [JV 2003-36]

V.

ARKANSAS DEPARTMENT OF HONORABLE DAVID GOODSON,

HUMAN SERVICES JUDGE

APPELLEE AFFIRMED

Olly Neal, Judge

The Greene County Circuit Court terminated appellant, Brandi Smith's, parental rights as to her minor daughter, S.B. Appellee, Arkansas Department of Human Services (ADHS), placed a seventy-two hour hold on S.B. on November 10, 2003, after appellant had been arrested. The person taking care of S.B., who was without proper clothing, could no longer care for her. S.B. was thereafter adjudicated dependent-neglected, and appellant was ordered to cooperate with ADHS and to follow the case plan; obtain stable and safe housing; remain prescription medication compliant; attend counseling; and submit to random drug tests. Subsequently, appellant's parental rights were terminated as to the minor child involved herein. This no-merit appeal followed.

Pursuant to Linker-Flores v. Arkansas Department of Human Services, ___ Ark. ___, ___ S.W.3d ___ (Oct. 7, 2004), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel, after a conscientious review of the record, has tendered a motion to withdraw on the ground that this appeal is wholly without merit. Themotion 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. Appellant was provided with a copy of her counsel's brief and notified of her right to file a list of points on appeal within thirty days; she filed no points.

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,

appellant had failed to comply with the case plan-she had not established a safe stable home; she had not attended all scheduled visitation; she did not remain prescription medication compliant; she had been in and out of jail for numerous offenses ranging fromfailure to appear to second-degree battery; she had not completed any drug treatment; and she had tested positive for drugs and admitted to using several times. Furthermore, S.B. had been out of the home in excess of twelve months, and despite meaningful efforts by ADHS, appellant had not remedied the situation. The testimony was that S.B. was highly adoptable and that it was in her best interest that she receive some permanency in her life.

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 appellant and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the order terminating appellant's parental rights is affirmed.

Affirmed.

Hart and Vaught, JJ., agree.