Justin Eoff v. Arkansas Department of Human Services and J.E., Minor Child

ca05-235

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-235

February 1, 2006

JUSTIN EOFF AN APPEAL FROM BENTON

APPELLANT COUNTY CIRCUIT COURT

[J03-273-D/N]

V. HON. JAY T. FINCH, JUDGE

ARKANSAS DEPARTMENT OF

HUMAN SERVICES and

J.E., Minor Child AFFIRMED; MOTION TO

APPELLEES WITHDRAW IS GRANTED

Wendell L. Griffen, Judge

On September 9, 2004, the Benton County Circuit Court entered an order terminating appellant Justin Eoff's parental rights to his son J.E. His attorney petitions this court to withdraw as counsel. Her motion was accompanied by a no-merit brief, pursuant to Linker-Flores v. Arkansas Department of Human Services, ___ Ark. ___, ___ S.W.3d ___ (Oct. 7, 2004), wherein counsel contends that all rulings adverse to her client were abstracted and discussed. Appellant was provided a copy of this brief and was notified of his right to file pro se points for reversal. He filed a brief, and appellee Arkansas Department of Human Services (DHS) filed a brief in response. After reviewing the record, we agree that an appeal in this case would be wholly without merit. Accordingly, we affirm the order terminating appellant's rights to J.E. and grant counsel's motion to withdraw.

On May 23, 2003, DHS filed a petition for emergency custody of J.E. According to the affidavit of facts included with the petition, the juvenile probation office for Benton County sought to revoke the probation of J.E.'s mother, Leia Renfro (later Mix), for failure to comply with court orders and for failing random drug screens. J.E. was in the custody of his paternal great-aunt due to Renfro's continued drug abuse and criminal charges. On or about May 20, 2003, J.E.'s great-aunt informed the Benton County probation office that she could no longer care for J.E. due to health and financial difficulties, despite her desire to do so. At this time, appellant was incarcerated in the Benton County Jail, facing charges for a drive-by shooting.1 The emergency custody order was filed on May 23, 2003, and the court appointed counsel for both parents. Renfro stipulated to probable cause, and an order finding probable cause was filed July 1, 2003. Both parents also stipulated to the adjudication of dependent-neglect, and an order was filed on July 30, 2003.

A review hearing was held on September 30, 2003. Since the adjudication hearing, Renfro had married Craig Mix and was living with him in Rogers. The court ordered Mr. Mix to participate in the case and comply with any recommendations. The court was also informed by appellant's counsel that appellant wanted be a part of J.E.'s life. At that time, appellant was participating in a prison boot camp program, and it was anticipated that he would complete the program by November 3, 2003.

A second review hearing was held on January 6, 2004. Counsel for DHS alleged that neither parent had substantially complied with the case plan and asked for the next hearing to be a permanency planning hearing. The order from that hearing, dated February 2, 2004, noted that DHS had made reasonable efforts to provide services to achieve the goal of reunification, including foster care placement; medical services; visitation; transportation assistance; worker visits, referrals for parenting classes, drug and alcohol assessments, housing assistance, and AA/NA meetings; random drug testing; and Schmeiding evaluations. The order also scheduled a permanency planning hearing for April 13, 2004. The order from that hearing, dated April 30, 2004, stated that returning custody of J.E. to his parents would be contrary to his welfare and that it would be in J.E.'s best interest to change the goal of the case from reunification to termination and adoption. The court found that appellant had failed to comply with any of the orders of the court and failed to participate in the case. DHS filed a petition for termination of parental rights on June 15, 2004, and a hearing was held on the petition on August 3, 2004.2 Prior to the hearing, appellant moved for a continuance, based on his anticipation of being released from the Arkansas Department of Correction. The court noted that this matter had been ongoing for approximately fifteen months and denied the motion.

Mrs. Mix testified that appellant was incarcerated while she was pregnant with J.E. and that he had only seen J.E. once. She noted that she witnessed appellant use methamphetamines and smoke marijuana while he was not in jail. She also testified that she was married that she had discussed the idea of Mr. Mix adopting J.E., and that he would adopt J.E. if appellant's parental rights were terminated.

Appellant testified that he was released from prison boot camp on November 24, 2003; however, he was incarcerated again on January 12, 2004, on a parole violation. Specifically, he failed drug tests, failed to report, and committed two misdemeanors. Prior to November 24, 2003, he had been incarcerated for a year and a half. Appellant testified that he had seen J.E. twice and had not seen him since J.E. was taken into DHS custody. He stated that he had made several attempts to see J.E. He cited an occasion in early December 2003 when he went to a DHS meeting, where he was unable to see him. He testified that he called and talked to a caseworker a week later but made no other attempts. Appellant admitted taking methamphetamines and smoking marijuana between November 2003 and January 2004.

Appellant testified that he completed the substance abuse treatment program while at prison boot camp. He stated that boot camp was for drug treatment, discipline, and anger management. He also noted that boot camp had classes on moral recognition therapy (MRT); however, he did not complete MRT. Appellant testified that he was watching Active Parenting Now tapes and that he was working with a counselor while at boot camp. He also attended three AA/NA meetings. Appellant stated that he also completed eight hours of parenting classes in boot camp, though he was required to complete eighteen. He testified that, if he were paroled and his parental rights not terminated, he would like the opportunity to get a job, establish himself, and be a father to J.E.

Dean Pursley, a parole officer for the Department of Community Punishment, testified that when appellant was released on parole in November 2003, he had the standard conditions of parole and was also ordered to complete MRT classes. Pursley stated that appellant reported to him on December 10, 2003, and that appellant tested positive for methamphetamines. He did not see appellant again until January 12, 2004, when appellant was incarcerated. Pursley testified that, given his knowledge of appellant, appellant does not do well when he is not institutionalized. He opined that, if appellant were paroled, he would not anticipate any changes in him.

In an order dated September 9, 2004, the Benton County Circuit Court terminated appellant's parental rights to J.E. In paragraph eleven of the order, the court tracked the language of Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2005) and identified the findings that supported its decision to terminate appellant's parental rights:

a. It is in the best interest of the juvenile, [J.E.], including consideration of the following factors:

(i) the likelihood that the juvenile will be adopted if the termination petition is granted; specifically, the Court finds that:

(A) the testimony indicates that the stepfather, Craig Mix, would seek to adopt the juvenile if the legal father's rights were terminated;

(B) the juvenile is under the age of ten (10) years, is Caucasian and has no serious medical issues all of which increase the likelihood of adoption for the juvenile;

(ii) the potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent . . . ; specifically, the Court finds that:

(A) the juvenile has remained out of the father's care and custody for a total of approximately (15) months;

(B) the juvenile has had little to no contact with the father during his lifetime and the father has failed to provide significant support for the juvenile;

(C) the father has failed to make significant changes in his life and has made little progress toward the case plan goals and Court orders;

(D) the father has remained incarcerated for a significant portion of the juvenile's life, to date, and remains incarcerated at this time;

b. A 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 which caused removal, those conditions have not been remedied by the parent; specifically, the Court finds that:

(i) the juvenile was adjudicated dependent-neglected on July 1, 2003, based upon the following:

(A) the father had an ongoing drug abuse problem which resulted in a failure by the father to:

(1) provide for the essential and necessary physical, mental and emotional needs of the juvenile;

(2) provide for the juvenile's care and maintenance, proper or necessary support and medical and other necessary care;

(B) the father's initial and subsequent incarceration, resulted in a failure by the father to:

(1) provide the necessary food, clothing and shelter for the juvenile

(2) provide for the essential and necessary physical, mental and emotional needs of the juvenile; and

(3) provide for the juvenile's care and maintenance, proper or necessary support or other necessary care;

(ii) through the above dependency-neglect matter, the juvenile has remained out of the father's care and custody for a total of approximately fifteen (15) months;

(iii) throughout the above dependency-neglect matter, the Department has offered the following services:

(A) foster care placement;

(B) medical services;

(C) visitations;

(D) transportation assistance;

(E) worker visits;

(F) referrals for parenting classes;

(G) referrals for drug and alcohol assessments;

(H) random drug testing

(I) referrals for NA/AA meetings;

(J) referrals for an NA/AA sponsor;

(K) referrals for the twelve (12) step program;

(L) referrals for housing; and

(M) Schmeiding evaluation and follow ups;

(iv) per the father's testimony, the father was released from jail for approximately three (3) months during this matter;

(A) during such period of time, the father testified that he used methamphetamines routinely;

(B) during such period of time, the father testified that he failed to have any visitations with the juvenile or participate in any services through the Department;

(v) for a majority of this time, the father has remained incarcerated due to his own criminal actions;

c. The juvenile has lived outside the home of the parents for a period of twelve (12) months, and the parents have willfully failed to provide significant material support in accordance with parents' means or to maintain meaningful contact with the juvenile; specifically, the Court finds that:

(i) through the above dependency-neglect matter, the juvenile has remained out of the father's care and custody for a total of approximately fifteen (15) months;

(ii) in the above dependency-neglect matter, the juvenile was adjudicated on July 1, 2003, at which time the father was ordered to pay child support in the minimal amount of ten dollars ($10.00) per week, commencing no later than thirty (30) days following the father's release from jail and continuing weekly thereafter;

(A) per the father's testimony, he was released from jail in November, 2003, yet failed to pay the required child support on behalf of the juvenile;

(B) throughout the above dependency-neglect matter, the father failed to request relief from the child support order during periods of subsequent incarceration;

(iii) in the above dependency-neglect matter, as well as throughout the juvenile's life, the father has failed to maintain ongoing, significant contact with the juvenile;

d. The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to have subjected the child to aggravated circumstances; specifically, the Court finds that:

(i) the juvenile has remained out of the father's care and custody for a total of approximately fifteen (15) months;

(ii) the testimony indicates that the father was using methamphetamines on a regular basis, prior to the juvenile's removal;

(iii) the testimony indicates that following the father's release from jail in November, 2003, he failed to actively seek services from the Department and failed to participate in any services through the Department;

(iv) the testimony indicates that following the father's release from jail in November, 2003, he failed to maintain contact with the Department and his parole officer and began using methamphetamines again on a regular basis, until he was re-incarcerated;

(v) the testimony indicates that the father was re-incarcerated in 2004 due to non-compliance with the terms and conditions of his parole;

(vi) given the father's extensive history of regular substance abuse, the father's willful failure to seek, access and/or participate in any services though the Department and his repeated incarcerations, there is little likelihood that continuing this matter will result in successful reunification.

Appellant's attorney has filed a motion to withdraw and a no-merit brief pursuant to Linker-Flores v. Arkansas Dep't of Human Servs., supra. Because appellant did not appeal from any adverse rulings stemming from the adjudication, review, or permanency-planning hearings, we are precluded from reviewing any adverse rulings from those portions of the record. See Lewis v. Arkansas Department of Human Services, ___ Ark. ___, ___ S.W.3d ___ (Nov. 17, 2005). Our review is limited to the termination hearing.3 Id. Because appellant's counsel seeks to withdraw, her brief must include an argument section that lists all rulings adverse to her client that were made on any objection, motion, or request made by any party and provides and explanation as to why each ruling is not a meritorious ground for reversal. Causer v. Arkansas Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (Dec. 14, 2005) (citing Ark. Sup. Ct. R. 4-3(j)). If a no-merit brief fails to address all adverse rulings, this court is to remand the case for rebriefing. Id.

In Causer, ___ Ark. App. at ___, ___ S.W.3d at ___, this court discussed the standard of review in termination-of-parental-rights cases:

When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party to terminate the relationship. Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. The facts warranting termination of parental rights must be proven by clear and convincing evidence, and in reviewing the trial court's evaluation of the evidence, we will not reverse unless the court's finding of clear and convincing evidence is clearly erroneous. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. In resolving the clearly erroneous questions, we must give due regard to the opportunity of the trial court to judge the credibility of

witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations.

First, counsel discussed the evidence of the likelihood that J.E. would be adopted. She is correct in noting the clear and unimpeached evidence that Mr. Mix wished to adopt J.E. if Mrs. Mix's rights were not terminated. The circuit court also noted that J.E. would be likely adopted based on his age, race, and lack of health problems. No other evidence was presented to the contrary.

Next, counsel addresses whether DHS provided evidence that continuing contact with appellant would be harmful to J.E. She cites Malone v. Arkansas Department of Human Services, 71 Ark. App. 441, 30 S.W.3d 758 (2000), for the proposition that, while the mere fact that appellant was incarcerated at the time of termination hearing is not dispositive of the termination issue, said incarceration does not suspend a parent's responsibilities toward his child. The circuit court found that appellant had little significant contact with J.E. during his life, that he failed to make any significant changes in his lifestyle, and that he has been incarcerated for a significant portion of J.E.'s life. Further, appellant's own testimony shows that he offered little support to J.E. and that he continued to use illegal drugs. The evidence shows that appellant has failed to participate in J.E.'s life; that appellant has a long history of drug use, which did not appear to be ending anytime soon; and that appellant has provided little support for J.E. The circuit court did not err in finding that termination would be in J.E.'s best interest.

In addition to a finding that it is in the best interest of the juvenile to have his parental rights terminated, the Arkansas Code requires a finding of one or more of the grounds outlined in the code. See Ark. Code Ann. § 9-27-341(b)(3)(B). The circuit court found three of the grounds to be applicable, and counsel discusses each ground before concluding that an appeal on any of the grounds would be without merit.

(i)(a) That a 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.

No party disputed that J.E. was adjudicated dependent-neglected and that he was out of appellant's custody for at least twelve months. Outside of his testimony that DHS did not allow him to see J.E., appellant never argued that DHS failed to provide him with services needed to rehabilitate his ability to be a parent. Services to assist him with his drug and alcohol abuse were offered. By appellant's own testimony, he attended a few meetings but did not complete the treatment. He was also ordered to attend parenting classes, and appellant admitted that he only attended eight of the eighteen ordered hours. Finally, when J.E. was adjudicated dependent-neglected, appellant was incarcerated and had a drug habit. During the brief period of time appellant was not incarcerated, he used methamphetamine and failed to obtain employment. Appellant's behavior and lifestyle appeared to be the same at the time of the adjudication of dependency-neglect as it was at the time of the termination hearing.

(ii)(a) The juvenile has lived outside the home of a parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile

The circuit court determined that appellant failed to provide any meaningful support by virtue of the fact that appellant was ordered to pay ten dollars a week once he was no longer incarcerated and that appellant failed to pay anything. Further, J.E. was almost two years old at the time of the termination hearing, and appellant stated that he had not seen J.E. since J.E. was two months old. Granted, appellant's periods of incarceration would make it difficult for him to have meaningful contact with J.E.; however, very little effort was made by appellant to support or have contact with J.E.

(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to: . . . (3)(A) Have subjected any juvenile to aggravated circumstances

Finally, counsel notes that all of the aforementioned examples of appellant's behavior, as well as appellant's history of incarcerations and drug use, support the circuit court's finding that appellant subjected J.E. to aggravated circumstances. Aggravated circumstances includes, among another things, "a determination . . . by a judge that there is little likelihood that services to the family will result in successful reunification." Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B). For the reasons previously outlined in this opinion, the circuit court did not err in finding that there would be little likelihood that services would result in a successful reunification.

The trial court properly found three grounds for terminating appellant's parental rights to J.E. and found that termination was in J.E.'s best interest. An appeal based on the sufficiency of the evidence supporting the termination would be without merit.

The only other adverse ruling during the termination hearing was a denial of appellant's motion for continuance. Appellant states that the denial of the continuance was not reversible error. The decision to grant or deny a motion for continuance is within the sound discretion of the circuit court, and we will not reverse absent an abuse of that discretion or a showing of prejudice. Smith v. Arkansas Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (Dec. 7, 2005). Appellant requested the continuance to have more time to comply with the case plan. However, appellant had several months to follow the orders of the court and did not do so. The circuit court did not err in denying appellant's motion for continuance.

Appellant was given the opportunity to file pro se points. He subsequently filed a fourteen-paragraph brief. In paragraphs one through four, appellant states his need for an attorney in this action. However, appellant was appointed counsel for the proceedings below and had counsel on appeal. After a examination of the record, his counsel determined that an appeal in this case would be without merit. To the extent that appellant is arguing that he was denied a right to counsel, his argument is without merit.

In paragraphs five and six, appellant contends that DHS presented insufficient evidence to terminate his parental rights and states that, while he was incarcerated and could not provide a home for J.E., he did not wish to forego his parental rights. Appellant had the opportunity to retain his parental rights, and given that opportunity, failed to fully comply with the circuit court's orders or take full advantage of the services provided by DHS. Further, for the reasons previously outlined in this opinion, we find the evidence sufficient to support the termination.

In paragraph seven, appellant states that it would be in the best interest of J.E. to be in the custody of J.E.'s paternal grandmother. In paragraph eight, he accuses the circuit judge of bias and argues that the judge should have recused himself. In paragraph nine, appellant argues that the circuit court erred by allowing DHS to impeach his testimony with prior juvenile convictions. None of these issues were presented to the circuit court, and the failure to raise the challenge below precludes this court from addressing the issue on appeal. See Walters v. Arkansas Dep't of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (2002).

In paragraph ten, appellant contends that DHS failed to make a meaningful effort to rehabilitate him or institute a case plan within a reasonable time to correct the conditions that caused removal. However, he admits that a case plan was filed on January 2, 2004, eight months before the order to terminate parental rights was filed. Further, appellant's own testimony is full of examples of his failure to complete AA/NA and parenting training classes. Appellant has failed to show that his failure to complete these courses was due to the fault of anyone other than himself.

In paragraph eleven, appellant argues that he was incarcerated while J.E. was allegedly subjected to any of the aggravated circumstances introduced in the termination hearing. He provides no argument or support for the contention that a juvenile cannot be subjected to aggravated circumstances while his parent is incarcerated. We do not consider arguments without convincing argument or citation to authority where it is not apparent without further research that the arguments are well-taken. Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996).

In paragraph twelve, appellant contends that his attempts to maintain meaningful contact with J.E. were continuously rebuffed by DHS. Even if we were to give appellant's testimony its full weight, appellant did not make any attempt to maintain contact other than the meeting in December 2003. Further, appellant made no attempt to provide meaningful support for J.E. during the time J.E. was adjudicated dependent-neglected, which is also grounds for termination.

In paragraph thirteen, appellant contends that he made an effort to comply with the case plan by completing the substance abuse treatment program offered by the Arkansas Department of Correction as well as twelve hours of parenting classes. The proof at trial shows that appellant did complete the program; however, appellant still uses methamphetamine. As argued by DHS, appellant's continued drug use demonstrates in an indifference to remedying the problems that resulted in DHS's involvement in this case. See Carroll v. Arkansas Dep't of Human Servs., supra. Further, appellant was ordered to complete eighteen hours of parenting classes but only completed eight. Even if we take appellant at his word, he has still failed to comply with the orders of the circuit court.

Finally, in paragraph fourteen, appellant argues that the circuit court confused Mrs. Mix's actions with his own and that the circuit court unfairly terminated his rights while resetting the hearing for Mrs. Mix. He fails to cite an example of any confusion of any of the issues in this case, nor does he explain how any alleged confusion by the circuit court resulted in any prejudice.

After thoroughly reviewing the record, we hold that an appeal in this case would be wholly without merit. The order terminating appellant's parental rights is affirmed, and counsel's motion to withdraw is granted.

Affirmed; motion to withdraw granted.

Vaught and Baker, JJ., agree.

1 At the adjudication hearing, appellant's counsel stated that appellant had been sentenced for breaking and entering and theft of property and that the drive-by-shooting charge had been dismissed.

2 While the petition sought to terminate the parental rights of both parents, DHS moved for the matter to be reset for termination with regard to J.E.'s mother, citing information that she had made progress on the case plan. Accordingly, Mrs. Mix's rights with regard to J.E. are not at issue in this case.

3 Although the order terminated only appellant's parental rights and not Mrs. Mix's, the order is still a final, appealable order. See Ark. R. App. P.-Civ. 2(c)(3)(C) (2005).