Aymee Z. Zamarripa v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA05-888

January 18, 2006

AYMEE Z. ZAMARRIPA

APPELLANT

v.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLEE

APPEAL FROM BENTON COUNTY CIRCUIT COURT

[NO. J-2004-751]

HONORABLE JAY FINCH,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

This no-merit appeal arises from an order of the Circuit Court of Benton County terminating the parental rights of appellant, Aymee Zamarripa, to the minor A.L. Zamarripa's attorney has filed a Motion to be Relieved as Counsel and a no-merit brief pursuant to Linker-Flores v. Ark. Dep't of Human Servs., ____ Ark. ____, ____ S.W.3d ___ (Oct. 7, 2004) (Linker-Flores I) and Ark. Sup. Ct. R. 4-3(j)(1). Zamarripa filed no pro se points for reversal. We affirm the trial court's termination of Zamarripa's parental rights and grant counsel's motion to be relieved as counsel.

As this is a no-merit appeal, only a brief recitation of the pertinent facts is required. On September 26, 2004, the Rogers Police Department informed the Arkansas Department of Human Services (DHS) about two-year old A.L., who had been left in the care of Rosa Miramontes for almost two weeks. Miramontes knew very little about Zamarripa or A.L., but agreed to watch the child for the day on September 18, 2004. Zamarripa left no food and only a couple of diapers and a few items of clothing for A.L. Zamarripa failed to pick up A.L. as planned: on September 19, she was too intoxicated to take A.L. on September 25, Miramontes's roommate, Mayle Soriano, found Zamarripa, clearly under the influence of drugs, hiding in their sunroom wielding an automatic handgun and claiming that the police were after her for kidnapping; and on September 27, Zamarripa returned to the home and waved her gun at Ms. Soriano in anger. On this date, Zamarripa's last name and whereabouts were unknown. In addition, the whereabouts of the putative father, Francisco Loredo were unknown. It was later discovered that Zamarripa had been arrested on felony charges in Washington County in August 2004, that she had failed to appear for arraignment, and that a warrant had been issued against her.

On September 29, 2004, DHS filed a petition for Emergency Custody and Dependency/Neglect. The court entered an Order for Emergency Custody, finding that there was probable cause to believe that A.L. was dependent/neglected and that it would be contrary to her welfare to remain in the care of Ms. Miramontes. The court ordered DHS to provide notice to both parents of a probable-cause hearing to be held on October 4, 2004. Zamarripa failed to appear at the probable cause hearing, and it was noted that her whereabouts were still unknown; Loredo was believed to be incarcerated in the State of Oklahoma. The court found that probable cause existed to keep A.L. in the custody of DHS.

At the November 16, 2004, adjudication hearing, Zamarripa's counsel advised the trial court:

As of this date, I have had absolutely no contact with my client. It is my understanding that she did appear in person at the Department of Human Services yesterday, when we were in Court on another matter; and did provide the Worker with a phone number and an address to contact her.... However, she did not follow up with the Worker's recommendation that she come by and speak with me.

[DHS] did leave a message on my voice mail that she was there at the time, and he had instructed her to come by my office. She did not do that, and I have had no contact with her. So, I think the Department has properly served her. So, I have no objection to the Court entering a Dependency/Neglect finding against her.

Counsel for DHS also advised the trial court that Zamarripa had signed a document that notified her of the date and time of the November hearing. The trial court found that A.L. was dependent/neglected, specifically finding that Zamarripa had failed to assume responsibility for the care and custody of A.L. by leaving her in the care of a stranger without providing any informationon A.L. or any contact information and that Zamarripa had failed to provide and could not provide for the basic needs of A.L. because she lacked stable housing and employment. The goal of the case was listed as reunification.

On January 5, 2005, DHS filed a Petition for Termination of Maternal Parental Rights, claiming that Zamarripa had effectively abandoned A.L. Since A.L. had been taken into DHS custody, Zamarripa had failed to provide any financial support or even have any contact with her child. In addition, Zamarripa had failed to provide any contact information and failed to maintain contact with her attorney or DHS; she also refused to participate in any of the reunification services offered by DHS.

At the review hearing on February 15, 2005, Zamarripa's counsel stated as follows:

I have had no contact with Ms. Zamarippa directly. She did call my office and scheduled an appointment, she called on November 16, 2004, scheduled an appointment for Monday, November 22nd, 2004 at 10:00 a.m. However, on the 22nd, she did not call; she did not show up for that appointment, she has not called to reschedule that appointment. I did send her a letter to her address 1316 Kembree Avenue, in Springdale, explaining to her the process and what was going on in the case, and that I needed to meet with her. That letter was returned to me "unclaimed" - or, actually, it was returned "Attempted/Not Known". And as of November 22nd, I have had no further contact with my client. And I believe the Department has given proper notice to her, given the circumstances of where she lives.

Counsel also stated that she had no objection to the court proceeding with DHS's request for a no-reunification order, immediate permanency planning and final termination proceedings. The court entered an order of no reunification services, finding that Zamarripa, despite her knowledge of the ongoing proceedings, had failed to appear before the court, had failed to provide support for A.L., and had failed to exercise her visitation rights with A.L.; as such, DHS did not have to continue to offer reunification services because they were unlikely to result in successful reunification. The court also found that Loredo was the legal father of A.L. because he and Zamarripa were married at the time of A.L.'s conception. The court granted DHS's request for an immediate termination of parental rights and ordered that Zamarripa's rights be terminated the same day, approximately four and a half months after DHS took emergency custody of A.L.

The appointed counsel for an indigent parent on a first termination of parental rights appeal may petition the court to withdraw as counsel if, after a conscientious review of the record, counsel can discern no meritorious grounds for appeal. Linker-Flores I, supra. Counsel's petition must be accompanied by a brief discussing any arguably meritorious issues. Id. When evaluating a no-merit brief, the court needs to decide whether the appeal is wholly frivolous or whether there are any issues of arguable merit for appeal. Linker-Flores v. Arka. Dep't of Human Servs., ____Ark.____, ____S.W.3d ____ (Nov. 16, 2005) (Linker-Flores II). The sole issue in counsel's no-merit brief is whether there was clear and convincing evidence to support the circuit court's decision to terminate Zamarripa's parental rights.

Under Ark. Code Ann. § 9-27-341 (Supp. 2005), the court may terminate parental rights if there is an appropriate permanency placement plan for the child and there is clear and convincing evidence that termination of parental rights is in the best interest of the child. The court should consider such factors as the likelihood of adoption and the potential harm to the health and safety of a child if subjected to continuing contact with the parent. Ark. Code Ann. § 9-27-341(A)(ii) (Supp. 2005). Clear and convincing evidence is that degree of proof that produces a firm conviction in the fact finder as to the allegation sought to be established. Camarillo-Cox v. Ark. Dep't of Human Servs., ____Ark. ____, ____ S.W. 3d ____ (Jan. 20, 2005). On appeal, an order of parental termination is reviewed de novo and will not be reversed unless clearly erroneous. Linker-Flores I, supra. 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. Camarillo-Cox, supra.

A heavy burden is placed upon the party seeking to terminate parental rights because this is an extreme remedy in derogation of the natural rights of the parents. Jones v. Ark. Dep't of Human Servs., ____ Ark. ____, ____ S.W.3d ____ (Mar. 24, 2005). Parental rights, however, will not be enforced to the detriment of the child; thus, parental rights must give way to the best interest of the child when the natural parent seriously fails to provide reasonable care for the minor child. Id.

In the present case, Zamarripa left her child in the care of a virtual stranger without providing contact information or sufficient food or clothing. In fact, Miramontes did not know Zamarripa's last name or the child's real name. Once A.L. was taken into DHS custody, Zamarripa had no direct contact with her own lawyer and failed to maintain contact with DHS officials, although she was aware of the proceedings concerning her child. Zamarripa had no stable housing or income, had been arrested, had pending felony charges for which she had failed to appear, and had problems with drugs and alcohol. Zamarripa failed to provide any type of financial support for A.L. to avail herself of the reunification plan developed by DHS; Zamarripa last saw A.L. when she left the child in the custody of Miramontes. Zamarripa also failed to appear before the court although she had received actual and constructive notice; in fact, Zamarripa appeared at DHS the day before the no-reunification hearing and was told that she needed to be in court the next day. DHS has an appropriate permanency plan in place for A.L. The child is only two-years old and is likely to be adopted.

Here, Zamarripa was never present before the court, and no objections of any nature were made on her behalf by her appointed counsel, who made no objection to the immediate termination of her rights some four months into the proceedings. Nevertheless, based upon these facts, we cannot say that the circuit court erred in entering an order of her parental rights. Accordingly, we grant counsel's motion to withdraw, and we affirm the trial court's order terminating Zamarripa's parental rights.

Affirmed.

Robbins and Neal, JJ., agree.