Arthur Nation III and Lisa Terry-Nation v. Arkansas Department of Human ServicesAnnotate this Case
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DECEMBER 7, 2005
ARTHUR NATION III AN APPEAL FROM THE BENTON
and LISA TERRY-NATION COUNTY CIRCUIT COURT [J-03-59-3]
ARKANSAS DEPARTMENT OF HONORABLE JAY T. FINCH, JUDGE HUMAN SERVICES
Olly Neal, Judge
This is an appeal from a decision of the Benton County Circuit Court, granting a petition filed by appellee, Arkansas Department of Human Services (ADHS), to terminate the parental rights of appellants Arthur Nation III (Nation) and Lisa Terry-Nation (Terry-Nation). Appellant Nation's counsel has filed a merit-appeal. For reversal, Nation contends that (1) the trial court erred in finding that it was contrary to A.N.'s best interest, welfare, health and safety to return him to appellant Nation's care; (2) ADHS did not make meaningful efforts to rehabilitate him and correct the conditions that cause A.N.'s removal; and (3) the trial court erred in finding that he subjected his son to aggravated circumstances. Appellant Terry-Nation's counsel has elected to file a motion to withdraw and a no-merit brief, pursuant to Linker-Flores v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Oct. 7, 2004) (Linker-Flores I) and Ark. Sup. Ct. R. 4-3(j)(1). We affirm the termination of appellants' parental rights.
Terry-Nation is mother to J.N. (born February 6, 1999) and A.N. (born May 26, 2001), and Nation is step-father to J.N. and father to A.N. ADHS filed a petition for emergencycustody in February 2003. The factual grounds upon which ADHS based its petition for dependency-neglect and emergency custody were that, on January 30, 2003, it received a report from the Child Abuse and Neglect Hotline stating that a seventy-two hour hold had been placed on J.N. at the Arkansas Children's Hospital for alleged sexual abuse perpetrated by her step-father, inadequate supervision, and medical and environmental neglect. Arkansas Children's Hospital personnel observed J.N. masturbating excessively using pens and pencils, then smelling them or sticking them into her mouth. When asked to stop, J.N. would stop briefly, then resume the behavior. When personnel addressed this behavior with Terry-Nation, she attempted to leave the hospital with J.N. The seventy-two hour hold was placed on J.N. when hosptial security had to restrain Terry-Nation from leaving the hospital with her. ADHS also placed a seventy-two hour hold on A.N. due to environmental neglect and supervision concerns. The trailer home was reportedly infested with fleas; J.N. had been observed eating dog food, and A.N. was observed eating in his highchair while a cat also ate from his bowl. A.N. was also observed standing on extremely unstable and dangerous steps of the home, wearing only a diaper when it was eight degrees Fahrenheit outside. At the probable cause hearing in February 2003, Terry-Nation stipulated to dependency-neglect based on environmental allegations. The court ordered her to pay twenty dollars per week in child support. It ordered Nation to pay ten dollars per week in child support for A.N. At the first adjudication hearing in March 2003, the parties stipulated to environmental neglect but did not stipulate to medical neglect or the alleged sexual abuse. The court was informed by counsel for ADHS that, because the sexual abuse allegation was investigated and found unsubstantiated, it did not wish to proceed further on that allegation. Testimony was then taken regarding the allegation of medical neglect. The following was gleaned from that evidence.
J.N. was diagnosed with vertebral osteomyelitis, a staph infection inside the bone. She was required to wear a "turtle shell," which was a hard plastic brace that went over her chest, under her arms, and then around her back so that she could not bend her spine. J.N. had a peripherally inserted central catheter (PICC) through which she receives IV antibiotics. Judy Campbell, a registered nurse with Care Network, provided home health care to monitor and administer treatment to J.N. in her home. While in the home, Campbell would administer the IV injections through the central line in J.N.'s arm that went up into her heart; she would then flush the line with saline, and then Heparin to keep the line open. Every eight hours, or three times a day, J.N. had to receive antibiotics; it was also necessary that blood draws were taken to monitor her white blood count. This was later changed to two times a day.
Initially, Campbell was in the home three times a day. Her purpose was to teach the family basic infection control, how to administer IV antibiotics, and how to care for the PICC. During one of her visits, Campbell learned that J.N. had been playing with the syringes used to flush her line. Campbell testified that the injection of air, via the PICC line, into the heart could be fatal. She discussed this concern with Terry-Nation. Campbell acknowledged that she allowed J.N. to push the plunger in on her PICC line when she cleaned it with saline, but did not allow J.N. to administer the IV antibiotics. Campbell further stated that Terry-Nation missed giving J.N. some of her doses, resulting in J.N.'s temperature rising. Campbell requested that J.N. go to the hospital; she then faxed a letter to Arkansas Children's Hospital that outlined the conditions found in the home. Campbell noted that the home was very dirty and full of cats and dogs. She stated that IV antibiotics needed to be administered in a very clean environment and that she discussed the importance of a clean environment with Terry-Nation.
Registered nurse Pam Killough also worked for Care Network. She went to theNation home a few times to draw J.N.'s blood. On one occasion, J.N.'s doctor had requested that Care Network draw blood. Killough called the residence and spoke with Nation and informed him that she would be there the following morning at 7:30 to draw J.N.'s blood. Killough testified that it is important that the blood be drawn before the IV antibiotics are given. When the nurses arrived at 7:30, it was extremely cold; the front door of the home was wide open, and three large dogs were running in and out of the home. Two nurses stood in the doorway and called for Terry-Nation. They also knocked several times, but there was no response.
The Care Network nurses went back to the office and contacted J.N.'s doctor's nurse, who eventually got in touch with Nation at work. Terry-Nation called the Care Network Office and told them that she did not know why they would be there so early when she did not administer the IV antibiotics until 10:00 or 10:30. Killough asked if the line was going then because it was 10:30, to which Terry-Nation responded, "not yet." Registered nurse Terri Johnson then went back to the home to draw J.N.'s blood. While there, she was informed that Terry-Nation no longer administered the IV, but that J.N. did it herself. Killough also noted other non-compliance issues. She recalled that, on one occasion, J.N had not received her medicine as scheduled and had to be taken to the emergency room because A.N. had dislodged J.N.'s PICC line. After speaking with Terry-Nation, she learned that the medicine was not being given timely, which could cause J.N.'s blood levels to fall. Killough noted that the importance of timely injections was so that the blood levels remained consistent, enabling the body to fight the infection. The ultimate effects of untimely injections, according to Killough, was the inability to clear the staph infection and paralysis.
Terry-Nation acknowledged that she sometimes woke up too late to administer J.N.'s IV antibiotic as scheduled. She recalled the incident where A.N. landed on J.N.'s PICC line. She stated that it was at about 11:00 or 11:30 after the children got into a scuffle over some ice cream. She took J.N. to Springdale Hospital, and based on their recommendation, took J.N. to Arkansas Children's Hospital. Springdale did not administer J.N.'s medication, nor had she administered medication, because J.N.'s PICC line was clogged and not working properly. Terry-Nation stated that they arrived in Little Rock late so they decided to wait until the next morning to take J.N. to the hospital. They awoke the next morning at around 10:00 or 10:30 and took J.N. to the hospital. She stated that, as a result, J.N. missed at least three treatments. Terry-Nation stated that she never allowed J.N. to administer her own medication but that she did allow her to prepare the syringes for the saline and flush her PICC line with the saline as the nurse had done.
Following this testimony, the court found medical neglect against Terry-Nation. The court thereafter ordered Terry-Nation to obtain and complete drug and alcohol assessment; cooperate with random drug/alcohol testing; attend family counseling; attend and complete twelve hours of parenting classes; maintain clean, safe, stable, and appropriate housing; maintain stable employment; attend all regularly scheduled visits; pay child support; and cooperate with ADHS. Nation was ordered to attend family counseling; attend and complete twelve hours of parenting classes; maintain clean, safe, stable, and appropriate housing; maintain stable employment; attend all regularly scheduled visits; pay child support; and cooperate with ADHS.
Subsequent to the filing of the original petition for dependency-neglect, other issues and factors not known by the court were discovered. At the April 2003 adjudication hearing, Terry-Nation admitted to the court that she had separated from Nation and was living with her mother. She also admitted to missing three scheduled visits with her children. At the September 2003 review hearing, the court learned that Nation had filed an order of protectionagainst Terry-Nation after she went to the marital home and cut the side of his neck with a knife. Terry-Nation had a job, was living with her parents, but looking for housing; she had attended NA and had obtained a sponsor. The court ordered appellant to take a drug test following the hearing; she tested positive for marijuana.
In January 2004, the permanency planning hearing was held. ADHS recommended that the goal be changed to termination of appellants' parental rights. Terry-Nation was serving time at the Benton County Jail and had not completed her parenting classes or her drug/alcohol treatment. Elizabeth Bostian, a family service worker trainee, testified that she went to Nation's home and provided him with a list of things that he needed to do in order to repair it. She found the conditions deplorable-parts of the floor were rotting and decaying; the kitchen floor had a hole in it big enough for the children to fall through; and some of the home's windows were broken.
CASA volunteer Mary Lou Kolb also testified. She stated that she visited with Nation in August or September at the DHS office and that he informed her of repairs that he knew needed to be made to the home. She testified that Nation told her that he had repaired some of the windows but that Terry-Nation had broken them when she entered the home and cut him.
In June 2004, a hearing was set to address some outstanding motions before the court, one of them being a contempt action filed by Nation against ADHS for failing to provide him with a list of necessary repairs to the home as ordered by the court. ADHS employee Karen Alter-Hammers testified that she knew that the court had ordered ADHS to make a list of necessary repairs, that she tried to contact Nation, and that she did not give him that list while she was the caseworker. She stated that she had talked to Nation about the repairs and that he told her he had talked to a friend who gave him an estimate of $6000 for the repairs. Shetestified that he never that stated he wanted to move from the trailer and that he never stated that he could not afford the repairs.
Elizabeth Bostian, the new caseworker for the Nation family, informed the court that, when she learned of the order to provide Nation a list of necessary repairs, she provided him that list on December 4, 2003. She stated that she recommended that appellant move because it would be cheaper than making the repairs but that Nation did not want to move. She nevertheless provided appellant with a housing referral. In compiling the list, Bostian testified that Nation pointed out the holes in the floors and the broken windows. Following this testimony, the court took the contempt action under advisement.
The court also received evidence related to a motion to exclude the case plan. Nation's counsel requested that the court rule that he not be required to present himself for a psycho-sexual assessment. She informed the court that Nation had since been arrested on allegations of sexual misconduct against J.N., and argued that, because the court had found no finding of sexual abuse by Nation, he not be required to undergo the assessment. ADHS argued that the reason for the assessment was that, in determining a ground to terminate Nation's parental rights, the court could find that he subjected A.N. to aggravating circumstances-the sexual abuse of J.N. Following arguments raised by counsels, the court ordered that Nation not undergo a psycho-sexual assessment. The court determined that it would take up the issue of whether or not evidence of sexual abuse should be admitted on the day of trial.
At the termination hearing in July 2004, the court found ADHS in contempt for its failure to provide Nation with a list of necessary repairs to his home. Nevertheless, the court determined that there was no secret of what those repairs were. The court also denied Nation's motion in limine to exclude evidence of sexual allegations. Also at the hearing, J.N.testified that she was five years old and that, while she lived with Nation, he gave her "bad touches." She indicated to the court where those bad touches took place. She testified that he "made it go underneath my clothes. He just used his finger. His finger went on my skin. It did not go inside my bottom." She also said that appellant gave her kisses on the neck and on the mouth, that she did not like the kisses, and that no one else kissed her like that. J.N. further testified that she had to make cereal a lot for herself and her brother and that sometimes her mother allowed her "to do stuff with the medication stuff."
J.N.'s therapist, Evelyn Weigel, also testified. She stated that J.N. was first brought to therapy in June 2002. She testified that Terry-Nation felt that J.N. was out of control; J.N. had drowned one kitten and had tried to drown another one. Weigel did not see J.N. again until November 2002, after allegations were made by Terry-Nation that J.N. was being sexually abused by her stepfather. Terry-Nation told Weigel that she found a negative of a picture of J.N. in the nude in Nation's wallet. She also stated that Terry-Nation told her that J.N. had been kissing Nation inappropriately. Weigel noted that Terry-Nation informed her that J.N. was having nightmares, during which she would scream and cry, "I don't want my daddy to see me. I don't want to. My back hurts." After this visit, Weigel did not see J.N. again until March 2003, when she came in with her foster mother. The foster mother informed Weigel that J.N. was "acting-out" sexually and trying to put things into her vagina. J.N. was being very defiant and blaming A.N. for her behavior. Weigel stated that she participated in play therapy with J.N. and that J.N. disclosed the sexual abuse to her in April 2003. During the time of these sessions, J.N. had started to wet herself, pull out her eyelashes, and smear her feces on herself and on other surfaces. On cross-examination, Weigel acknowledged that J.N. had problems with lying.
Laura Menees, a licensed clinical social worker for Ozark Guidance Center, testifiedthat she had counseled Nation. Her primary diagnosis for him was adjustment disorder with anxiety and depressed mood. She was helping him deal with these issues; he also informed Menees of the sexual abuse allegation against him. He denied engaging in any sexual abuse; therefore, she did not counsel him on that. Menees testified that Nation told her that he liked to wear women's underwear because it made him feel good; he had worn women's underwear for years and also enjoyed watching adult pornography and buying pornographic magazines. When the issue of the nude picture of J.N. came up, Nation informed Menees that Terry-Nation had made a big deal of it, that there were four or five pictures on the negative, and that he had it because he wanted to make a copy of one of the pictures on the negative of Terry-Nation's sister and send it to her.
Nation testified that he had been married to Terry-Nation for five years and that he was in the process of seeking a divorce. He recalled an incident in March 2002, when Terry-Nation called him at work and told him to come home because she had been using marijuana and crank and was "flippin' out." She was home alone with the children. Instead of going home, he waited until his shift ended. When he got home, his home was surrounded by the fire department and the police. Nation acknowledged that his home needed numerous repairs, that he tried to make some of the repairs, that he had paid child support, and that he completed twelve hours of parenting classes. He testified that he attended visitation with A.N. on a regular basis and had only missed a few visits. Nation further testified that he was still attending counseling at the time of the hearing, that he had been trying to seek adequate housing, that he had never answered his front door in women's underwear, and that he enjoyed masturbating in public places.
When Terry-Nation testified at the termination hearing, she admitted to breaking some of the windows that Nation had repaired in order to get into the home. She stated that sheand Nation started fighting a lot after she found the picture in his wallet. Prior to that incident, she found a bra and panties under their mattress. When confronted, Nation told her that they were his. She made him try them on to make sure. She stated that he finally admitted to her that he liked to masturbate in public places; she also found the dirty panties of J.N. and another woman and stated that Nation told her that he liked to sniff the dirty panties while he masturbated. She also testified that, while reading a book one day, she happened to look over and observe Nation and J.N. kissing. Terry-Nation began to notice her daughter kissing people inappropriately, sticking her tongue into their mouths. Terry-Nation stated that J.N. once patted her vagina and asked Terry-Nation to kiss her there. It was after this incident, Terry-Nation testified, that she called the ADHS hotline.
R.S., a fifteen-year-old neighbor, testified that he lived next door to the parties and that one day, while going over to ask for flour, Nation answered the door in women's lingerie.
Subsequent to this testimony, the court terminated appellants' parental rights. This appeal followed.
When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Johnson v. Arkansas Dep't of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Id. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Anderson v.Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). In reviewing the trial court's evaluation of the evidence, we will not reverse unless the court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Id. 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. Brewer v. Arkansas Dep't of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. McFarland v. Arkansas Dep't of Human Servs., ___ Ark. App. ___, ___ S.W.3d ___ (June 15, 2005). 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. See id.
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).
I. Merit appeal of appellant Nation
First, Nation asserts that the trial court erred in finding that it was contrary to A.N.'sbest interest, welfare, health and safety to return A.N. to his care. Although this argument is presented as a point on appeal, Nation does not address it in the argument section of his brief; therefore, we deem that the argument has been abandoned. The failure to develop a point legally or factually is reason enough to affirm the trial court. See Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003); see also Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000) (declaring an argument abandoned on appeal when appellant mentioned it in the points on appeal but made no argument regarding it).
With regards to Nation's second argument-that ADHS did not make meaningful efforts to rehabilitate him and correct the conditions that caused A.N.'s removal-Nation only points to ADHS's failure to provide him with the list of repairs. Nation contends that the trial court erred in relying on the fact that he should have known what he was expected to do when ADHS was held in contempt for failing to provide him a list of repairs. Nation argues that he had no guidance regarding the repairs until six months before the termination hearing; that he subsequently remedied the conditions that led to A.N.'s removal, and that DHS provided him with no housing referrals. This argument lacks merit for several reasons.
First, the court found that Nation was very much aware of the deplorable condition of his home. We agree. When there are huge holes in the floor that children can fall through and there is plastic covering the broken windows, there is no need for ADHS to tell a parent that those conditions are unsafe for a child. Nation did place wood on top of the floors to cover the rotting floor beneath, and he had fixed some of the windows before Terry-Nation broke them, but Nation had not tried to repair the windows since then. Second, the testimony adequately shows that Nation was not interested in moving from his trailer. ADHS workers testified that, when they recommended to Nation that he move, he stated that he did not want to move. Furthermore, when caseworker Elizabeth Bostian learned of the court's order toprovide Nation with a list of repairs, she compiled that list. Nation, according to Bostian, pointed out to her the most egregious conditions. Bostian also provided Nation with a housing referral even though he told her that he was not interested in moving. Nation is a college-educated man who made approximately $416 a week. He, therefore, had the means to repair his home. Accordingly, we cannot say that Nation was not aware of the conditions, that ADHS did not try to help him, or that Nation had remedied the conditions causing removal.
Nation's final assignment of error is that the trial court erred in determining that he had subjected A.N. to aggravated circumstances. Nation cites the unsubstantiated report of the Arkansas State Police, an unsubstantiated report by the Arkansas State Police Crimes Against Children Division, and an unsubstantiated report by Central Child Abuse Registry investigator, Truley Stone, who found after a physical examination of J.N. and the denial of abuse by J.N. that the allegation was unsubstantiated.
An order terminating parental rights must be based upon one of several grounds, one of which is the twelve-month continuation of the child out of the home. See Ark. Code Ann. § 9-27-341(a)(3)(B)(i)(a) (Supp. 2003). There is no argument that A.N. had been out of Nation's home for over twelve months. The court determined that, despite meaningful efforts by ADHS to rehabilitate Nation and correct the conditions that caused removal, those conditions had not been remedied. Therefore, without addressing the aggravated circumstances ground under the code, it is clear that the court had a sufficient basis on which to terminate Nation's parental rights.
Nevertheless, Arkansas Code Annotated section 9-27-303(6)(A) (Supp. 2003) provides that the phrase "[a]ggravated circumstances" means, in part, that "a child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, or sexually abused,or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification[.]" In making its ruling to terminate Nation's parental rights, the court found that Nation had subjected J.N. to the aggravated circumstances of sexual abuse. The court went on to find that Nation had therefore subjected A.N. to aggravated circumstances. The court stated: "This court observes that Mr. Nation is an educated, capable, working individual, who has the capacity to parent. However, other than visiting with his child, he seems unwilling to expend the time, energy, or money, needed to provide for his child." Also, in its order, the court determined, as related to Nation, that "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 [him.]" This was a finding by the court of aggravated circumstances, i.e., that there was little likelihood that services would result in successful reunification of A.N. with his father. Accordingly, we cannot say that the trial court's finding of aggravated circumstances was clearly erroneous; therefore, we affirm this point as well.
II. No-merit appeal of appellant Terry-Nation
Pursuant to Linker-Flores I, supra, appellant Terry-Nation'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. The motion was accompanied by a brief purportedly presenting a thorough and professional evaluation of the record discussing and demonstrating why there are no arguable grounds for reversal. A copy of the brief was delivered to Terry-Nations, who was notified of her right to file a list of points on appeal within thirty days; she filed no points. In Linker-Flores I, ___ Ark. at ___, ___ S.W.3d at ___, the supreme court provided as follows:
Because we conclude that the benefits from the Anders [v. California, 386 U.S. 738 (1967)] protections to the indigent parent's right to counsel outweigh theadditional time such procedures require, the Anders procedures shall apply in cases of indigent parent appeals from orders terminating parental rights. Thus, we hold that appointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel's petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent parent must be provided with a copy of the brief and notified of her right to file points for reversal within thirty days. 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. If, however, we find any of the legal points arguable on their merits, we will appoint new counsel to argue the appeal.
Subsequently, in Linker-Flores v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Nov. 17, 2005) (Linker-Flores II) and Lewis v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Nov. 17, 2005), the supreme court further established that no-merit appeals from termination-of-parental-rights cases must follow the established standard set forth in no-merit appeals from criminal cases-the briefs "shall include an argument section that consists of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal." See Linker-Flores II, supra; Lewis v. Arkansas Dep't of Human Servs., supra; Ark. Sup. Ct. R. 4-3(j) (2005). However, the supreme court also determined that, in no-merit termination-of-parental rights cases, we are precluded from reviewing any adverse rulings from the adjudication hearing, review, and permanency-planning hearings because, based on Ark. R. App. P.-Civ. 2(c)(3), those hearings are final appealable orders; thus, our review of the record for adverse rulings is limited to the termination hearing. See Lewis v. Arkansas Dep't of Human Servs., supra. Furthermore, 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 the appellate court "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 allpleadings and testimony in the case that occurred before the termination-of-parental-rights hearing." Id. at ___, ___ S.W.3d at ___ (citing Ark. Code Ann. § 9-27-341(d)(2)).
Additionally, although not stated by our supreme court in either Linker-Flores or Lewis but obviously consistent with its determination that termination-of-parental-rights no-merit appeals must follow the pronounced standards of criminal no-merit appeals, we take this opportunity to point out that, in a supplemental opinion on denial of a petition for rehearing, the court in Campbell v. State, 74 Ark. App. 277, 53 S.W.3d 48 (2001), determined that, although in appeals based on the merits of the case, the record on appeal is that which is abstracted and all matters not essential to the decision of the questions presented by appeal are to be omitted from the record, these rules are inapplicable in Anders v. California, 386 U.S. 738 (1967) briefs, where the attorney contends that, in spite of the appeal taken because his client insists, there is no merit to the appeal and it is "wholly frivolous," that the attorney should be discharged, and that the pursuit of the appellant's rights should end unless he wants to file points on appeal pro se. We determined that in no-merit appeals, the appellate court has an entirely different obligation; instead of reviewing only the parts of the record that the lawyer puts before the court, the appellate court, in a no-merit appeal, is bound to perform a full examination of all the proceedings to decide if the case is "wholly frivolous." Id. Here, appellant's counsel has abstracted only the testimony that she found to be relevant to her appeal. In criminal no-merit cases, this would be unacceptable, as it is our duty to review the entire record. Accordingly, the same holds true in a termination-of-parental-rights no-merit appeal.
Based on these established guidelines, we now review the argument raised by Terry-Nation's attorney in her no-merit brief. In this case, our review of the record reveals one adverse ruling in the termination hearing that was not abstracted or included in the argumentsection. 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; Lewis v. Arkansas Dep't of Human Servs., supra. However, as this is our first occasion to address the specific procedures for a termination-of-parental-rights no-merit brief and as the adverse rulings were clearly not meritorious, we decline to order rebriefing so as to avoid any further delay in this case. Linker-Flores II, supra.
The first adverse ruling in the termination hearing involved the circuit court's denial of appellant's objection to the admission of certain recommendations found in a CASA court report. The decision to admit or exclude evidence is within the sound discretion of the trial court, and we will not reverse a trial court's decision regarding the admission of evidence absent a manifest abuse of discretion. See Rollins v. State, ___ Ark. ___, ___ S.W.3d ___ (May 12, 2005). We hold that there was no abuse of discretion in the admission of the recommendations found in a court report.
The second and final adverse ruling involved the termination of Terry-Nation's parental rights. Taking into consideration the evidence and testimony herein, and after a full examination of the record, we hold that an appeal on behalf of Terry-Nation would be frivolous. The evidence overwhelmingly showed that Terry-Nation had failed to comply with the case plan. She testified that she was at the time of the termination hearing incarcerated for possession of methamphetamine, possession of paraphernalia, hot checks, and failure to appear. She admitted that she had not completed parenting classes, did not get drug treatment, had failed drug testing, had failed to maintain stable housing, and had not paid child support. Accordingly, counsel's motion to be relieved is granted, and the order terminating Terry-Nation's parental rights is affirmed.
Hart and Vaught, JJ., agree.