Krass v. Ark. Dep't of Human Servs.
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ARKANSAS COURT OF APPEALS
DIVISIONS III AND IV
No. CA08-1005
Opinion Delivered
April 8, 2009
APRIL KRASS
APPELLANT
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[NOS. JV-06-757A; JV06-757B]
V.
HONORABLE VICKI SHAW COOK,
JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
JOHN MAUZY PITTMAN, Judge
This is an appeal from an order terminating appellant’s parental rights to two minor
children, C.K. and D.K. Appellant’s attorney has filed a motion to be relieved as counsel
pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d
739 (2004), asserting that there are no issues of arguable merit to support the appeal.
Counsel’s motion was accompanied by a brief listing all adverse rulings made at the
termination hearing and explaining why there is no meritorious ground for reversal to each
ruling, including a discussion of the sufficiency of the evidence to support the termination
order. See Lewis v. Arkansas Department of Human Services, 364 Ark. 243, 217 S.W.3d 788
(2005); see also Ark. Sup. Ct. R. 6-9(i)(1), In re Rules of the Supreme Court and Court of Appeals,
Rules 6-9 and 6-10, 374 Ark. Appx. ___, ___ S.W.3d ___ (Sept. 25, 2008). The clerk of
this court sent a copy of counsel’s brief and motion to appellant, informing her that she had
the right to file pro se points for reversal. Appellant did not submit any pro se points.
The children were taken into protective custody on November 28, 2006. The petition
for emergency custody was based on an attached affidavit. The affidavit stated that the family
service worker was called to the Krass residence in Hot Springs on November 28, 2006.
Living in the home were the mother, April Krass; the father, James Krass II; seven-year-old
D.K., who is the son of April and James Krass II; and twelve-year-old C.K., the daughter of
April Krass. The affidavit continued as follows:
The worker questioned C.K. about alleged sexual improprieties
inflicted on her by her step-father, James Krass II. The girl told
the worker that her step-father had been performing both oral
and digital penetration of her vagina since she was eight years of
age on a regular basis. The last time this alleged abuse took place
was on November 24, 2006, while her mother was out of the
house. April Krass told the worker that C.K. had informed her
of her step-father’s sexual activity with her on or about the 24 th
of November. She said that she intended to have the child seen
by a doctor to confirm the sexual abuse, but that it was around
the Thanksgiving holiday and that she had been unable to secure
a doctor’s appointment. When asked why the child was not
taken to an emergency room, the mother responded that this
idea did not occur to her. While at the home, the worker came
to the conclusion that the children were in imminent danger of
serious injury and for their health, safety, and welfare, took both
of them into custody.
After determining that there was probable cause to support these allegations and to
support the emergency removal of the children, the trial court held an adjudication hearing
on January 10, 2007, where it was found that removal was in fact caused by the emergency
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described in the petition, that the emergency continued to exist, and that it was in the best
interest of the children to remain in foster care. No appeal was taken from that order.
A case plan was developed that required April and James Krass II to submit to
psychological testing and counseling, and to participate in counseling and therapy. James
Krass II was uncooperative. Despite the unappealed finding of sexual abuse, he denied that
such abuse had occurred and refused to participate in counseling, complete parenting and
anger management classes, submit to random drug testing when requested, maintain
meaningful contact with the children, or pay child support pursuant to the court’s order.
April Krass partially complied with the order and obtained psychological testing, individual
counseling, and family counseling during supervised visitation with the children. Although
the fact of abuse had been founded and was not appealed from, psychological examination
showed that April Krass was convinced that the accusations of sexual abuse were unfounded;
she was “dogmatically supportive” of her husband and showed no desire to understand or
sympathize with her daughter, who she believed was maliciously lying. Because April Krass
was completely closed to believing that her husband had in fact committed the abuse, and
because she committed a breach of trust by surreptitiously making an audiotape of a
counseling session, individual therapy was terminated in July 2007. Group therapy was also
terminated because April Krass’s persistent refusal or inability to empathize with her daughter
by even considering the possibility that she was telling the truth was causing the child
additional harm and distress. Consequently, more than one year after the children had been
removed, a petition to terminate parental rights was filed alleging that April Krass had failed
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to remedy the condition causing removal, i.e., her failure to protect her daughter from sexual
abuse.
At the termination hearing, the evidence showed that, because they had offered
statements regarding the facts of the abuse, both of the children feared that they would be
abused or harmed by the noncompliant James Krass II were they to be returned to the home.
Efforts to reconcile April Krass with her daughter were utterly unsuccessful. At the request
of and in the presence of a counselor, C.K. again confronted her mother with the details of
the abuse. She expressed her hurt at her mother’s indifference when C.K. first told her that
she had been abused and pled with her mother to understand and be supportive. Despite her
daughter’s pleas and tears, April Krass displayed a very flat affect, showing no emotion.
Although the counselor explained that, even if April Krass did not believe the abuse occurred
it was crucial that she remain emotionally available and supportive, April Krass showed no
concern for her daughter’s distress. Despite their traumatization, both children have made
great strides in therapy and are very adoptable. C.K. displayed courage and insight beyond
her years by showing empathy for her abuser. There is every reason to believe that these
children will benefit greatly from being placed in a loving home.
There was overwhelming evidence that April Krass had failed to rectify the conditions
causing removal. By her own testimony at the hearing, April Krass intended to continue
exposing the children to James Krass II without regard to the fears or safety of the children
because she was dependent upon him for transportation, although she had never asked the
Department for transportation assistance, and despite having been told by a caseworker that
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continued contact with the named offender would make reunification impossible. And,
although April Krass testified at the hearing that she was separated from the abuser and was
beginning, possibly, to believe that some form of sexual abuse might have taken place, these
were last-minute developments that occurred at the time the case goal was changed from
reunification to termination of parental rights.
In light of the foregoing, we hold that any appeal from the order of termination would
be frivolous. At best, appellant demonstrated that she possibly made some partial, last-minute
progress toward rectifying the condition causing removal. However, evidence of last-minute
progress provides no grounds for reversal. In Trout v. Arkansas Department of Human Services,
359 Ark. 283, 197 S.W.3d 486 (2004) (reversing Trout v. Arkansas Department of Human
Services, 84 Ark. App. 446, 146 S.W.3d 895 (2004)), and Camarillo-Cox v. Arkansas Department
of Human Services, 360 Ark. 340, 201 S.W.3d 391(2005) (reversing Camarillo-Cox v. Arkansas
Department of Human Services, 87 Ark. App. 35, 185 S.W.3d. 133 (2004)), the Arkansas
Supreme Court overturned reversals of termination proceedings by this court on the grounds
that evidence of such eleventh-hour improvement need not be credited by the trial court and
will not be held to outweigh evidence of prior failure or noncompliance. It is noteworthy
that both of the above-cited cases involved last-minute separations by mothers from child
abusers.
Furthermore, it cannot reasonably be argued that the services offered by the
Department to reunite appellant with her children were inadequate. Instead, it is clear that
these efforts simply could not prevail in the face of appellant’s unwillingness or inability to
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consider that her husband had sexually abused her daughter. Given appellant’s destruction of
the therapist-patient relationship by attempting to make secret audiotapes of the sessions, her
unrelenting and dogmatic refusal during therapy to so much as consider the possibility that
her daughter was not lying about the sexual abuse, and the uncontradicted evidence that the
rejection exemplified by her refusal or inability to empathize was causing her daughter
additional emotional harm, it is incontestable that appellant was resistant to therapy and that
no further treatment would have been effective; appellant responded only to the threat of
imminent termination of her parental rights more than one year after the children had been
removed from her home.
Nor do the evidentiary rulings decided contrary to appellant provide any arguable
grounds for appeal. All of the contested evidence, including the taped interview of D.K., was
offered in an attempt to cast doubt on the trial court’s finding in the adjudication order that
sexual abuse occurred, or to show that the evidence was sufficiently dubious that appellant was
reasonably justified in refusing to consider that it might in fact have taken place. However,
it is elementary that, in termination cases, a challenge to the finding of abuse must be made,
if at all, in an appeal from the adjudication hearing. Dowdy v. Arkansas Department of Human
Services, ___ Ark. App. ___, ___ S.W.3d ___ (March 11, 2009); see Ark. R. App. P. – Civ.
2(c)(3)(A). The law is crystal clear that we are precluded in this appeal from reviewing
adverse rulings from the adjudication, review, or permanency-planning hearings. Lewis v.
Arkansas Department of Human Services, 364 Ark. 243, 217 S.W.3d 788 (2005). For purposes
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of this appeal, the fact of sexual abuse is conclusively established.1 No rational person could
argue otherwise.
Furthermore, it is irrelevant whether April Krass acted reasonably 2 in choosing to
believe her husband rather than her daughter. It was established by expert testimony—and
this is no more than common sense to any parent—that it was not necessary for April Krass
to believe her daughter, but that it was essential that she show the child love and concern and
remain emotionally available to her in light of her obvious and profound distress. This April
Krass manifestly failed to do. Instead, her withdrawal of support, icy demeanor, and dogmatic
adherence to her belief in her husband’s denials were acts of abandonment that caused her
daughter additional and incalculable harm. That she continued in this rigid adherence to her
husband’s excuses after the fact of sexual abuse had been established at the adjudication
hearing, and corroborated by her husband’s angry refusal to participate in any of the
reunification services, demonstrates the depth of her own need and the extent to which she
put her own desires ahead of the welfare of her children. The evidence most favorable to
April Krass, given by a social worker who continued to work with her throughout the
process, was that she needed to accept the seriousness of the abuse and the need to protect her
1
Evidence intended to cast doubt on the fact of abuse could have no relevance to
the issues before the court at the termination hearing, i.e., whether April Krass had
remedied the conditions causing removal. Only evidence material to the issues on appeal
need be included in the abstract and addendum. Ark. Sup. Ct. R. 6-9(e)(2)(C).
2
Her steadfast refusal to accept the possibility that abuse could have occurred was
based chiefly on the lack of forensic evidence. We note in this regard that appellant failed,
when her daughter reported the abuse to her, to take any action that would provide such
evidence, such as taking the child to a doctor’s office or emergency room.
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children from the abuser, and that, while she had begun to make some progress toward that
goal at the time of the permanency planning hearing, she was not yet ready to assume her
parental responsibility and needed more time to do so. But such last-minute progress is
commonplace in termination cases, and any appeal based on evidence of such progress would
be unavailing. Trout v. Arkansas Department of Human Services, supra.
Based on our examination of the record and the brief presented to us, we find that
counsel has complied with the requirements established by the Arkansas Supreme Court for
no-merit motions in termination cases, and we hold that the appeal is wholly without merit.
Accordingly, we grant counsel’s motion to withdraw and affirm the order terminating
appellant’s parental rights.
Affirmed.
G LADWIN, H ENRY, and B ROWN, JJ., agree.
H ART and B AKER, JJ., dissent.
H ART, J., dissenting. Despite the majority’ s heavy-handed efforts to demonize Ms.
Krass, the simple fact is that the record in this case is completely devoid of even a
suggestion that M s. Krass in any way abused her children or that Ms. Krass was even
aware of any abuse at the time that it allegedly took place. Moreover, the record indicates
that Ms. Krass had good reason to doubt that the alleged abuse actually took place.
The so-called abuse about which the majority rails is merely an allegation made by
the now nearly fifteen-year-old alleged victim, C. K. , against her now former stepfather.
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Despite the trial judge’ s repeated efforts to keep this information out of the record, we
know that these allegations were belied by the physical evidence. For instance, the alleged
victim claimed that her ex-stepfather had repeatedly subjected her to full penetration sex,
yet a forensic medical examination revealed that she had a “ normal” hymen, and despite
her claims that her ex-stepfather had caused her room to “ smell like sperm, ” crime scene
investigators were unable to recover any physical evidence in that room.
Furthermore, Ms. Krass proffered testimony that C. K. had recanted to two of her
friends, and Ms. Krass also managed to get into the record that she knew her daughter had
a propensity for prevarication. A taped interview of D. K. , C. K. ’ s now ten-year-old
brother, was purported to be corroboration of C. K. ’ s allegations, but on crossexamination, it was revealed that D. K. never professed to witness any sexual abuse. 3
Additionally, C. K. ’ s former counselor, Donna Sheppard, who is no longer
practicing in that field, revealed on cross-examination that C. K. was surprised and angered
when she found out that her stepfather was not her biological father. Only then did C. K.
make her allegations.
It was also revealed at the hearing, much to the trial judge’ s
obvious irritation, that the Garland County prosecuting attorney had declined to prosecute
3
The tape was introduced into evidence and included in the record, but not
abstracted or copied for the addendum. The majority does not explain why this violation
of the requirements set out in Supreme Court Rule 6-9 does not mandate rebriefing, as is
routinely the case in criminal cases where Rule 6-9's counterpart, Rule 4-3, governs.
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the alleged perpetrator. 4
Nonetheless, the trial court found—
and the majority has
concurred—
that ADHS had made reasonable efforts to rehabilitate Ms. Krass because it
had offered Ms. Krass counseling that required her to believe allegations that were directly
contradicted by the medical evidence and to “ support” C. K. in making these allegations.
But the most disturbing aspect of this scenario is that Ms. Krass was summarily dismissed
from this “ counseling” when she did not immediately subscribe to these requirements.
But the story gets worse.
It seems that the counseling sessions conducted by
Sheppard and her erstwhile employer involving Ms. Krass and her children were
terminated after the so-called “ taping incident. ” Apparently, Ms. Krass had become so
concerned about how the so-called “ therapy” sessions were being conducted that she
decided to surreptitiously tape a session. When Ms. Krass attempted to use a transcript
of the session to impeach Sheppard at the termination hearing, the trial judge prodded the
attorney ad litem and the attorney for ADHS into objecting. 5 Perhaps not surprisingly,
when those officers of the court got around to offering an objection, the trial judge
sustained it. I cannot accept that it was wholly frivolous to argue that it was an abuse of
4
In a manner customary to similar inquisitions in seventeenth century Salem,
Massachusetts, the trial judge stated: “[Y]ou do not need forensic evidence or medical
evidence that nationally we have many times had convictions without that. [sic] Just
because this particular county doesn’t follow what is the national best practice I don’t see
how that’s relevant at all.” (Emphasis added.)
5
The trial judge asked, “Now are you guys going to agree to admit this even
though it was with unclean hands obtained?”
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discretion to prevent Ms. Krass’ s trial counsel from impeaching the witnesses who
testified that the only efforts that ADHS made to “ rehabilitate” Ms. Krass would be futile
and even counter-productive.
However, there is more.
The trial judge, through more than a half-dozen
evidentiary rulings, many made sua sponte, denied Ms. Krass the right to even present her
case in anything approaching a cohesive fashion. It was Ms. Krass’ s theory of the case
that her actions in not embracing her now former daughter’ s accusations were rationally
based, therefore her dismissal from counseling could not be ascribed to simple
recalcitrance. However, the trial judge apparently concluded that any evidence that did
not support termination of Ms. Krass’ s parental rights was “ not relevant. ” I disagree
with the majority’ s dismissal of these evidentiary rulings as being merely an effort to
attack the adjudication. These rulings comprehensively denied Ms. Krass her right to put
on a case in defense of ADHS’ s effort to strip her of her parental rights. The record is
clear that Ms. Krass at least physically availed herself of every so-called reunification
service that was foisted upon her. She did not quit the counseling, the counseling quit her
when she did not join in the counselor’ s blatant advocacy of C. K. ’ s abuse allegations.
I submit that an argument challenging the adequacy of the so-called “ services” offered by
ADHS would not be wholly frivolous.
In Adams v. Arkansas Department of Health and Human Services, --- Ark. ---, --S. W. 3d ---- (Jan. 22, 2009), the supreme court recently stated what it believed to be the
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procedural blueprint promulgated in Anders v. California, 386 U. S. 738 (1967), the
seminal case that its progeny, Linker-Flores v. Arkansas Department of Human Services,
359 Ark. 131, 194 S. W. 3d 739 (2004), purports to follow. The Adams court stated:
[Counsel' s] role as advocate requires that he support his client' s appeal to the
best of his ability. Of course, if counsel finds his case to be wholly frivolous,
after a conscientious examination of it, he should so advise the court and
request permission to withdraw. That request must, however, be
accompanied by a brief referring to anything in the record that might
arguably support the appeal. A copy of counsel' s brief should be furnished
the indigent and time allowed him to raise any points that he chooses; the
court-not counsel-then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so finds it
may grant counsel' s request to withdraw and dismiss the appeal insofar as
federal requirements are concerned, or proceed to a decision on the merits,
if state law so requires. On the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the appeal.
(Emphasis added. ) With the instant case becoming the new definition of what errors may
be considered “ wholly frivolous, ” we have indeed moved into a new era of constitutional
law in termination-of-parental-rights cases.
The fact that the majority has found it
necessary to advocate so passionately for the termination of Ms. Krass’ s parental rights
certainly begs the question about whether we should have allowed this case to be submitted
in no-merit format.
B AKER, J., dissenting. I would order rebriefing in this case for two reasons. First,
because the taped interview of D.K. was not included in appellant’s abstract or addendum,
we are unable to conduct the full examination required to decide whether the case is wholly
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frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). Second, I do not
believe that appellant’s brief sets out why any adverse rulings would not arguably support an
appeal.
In reaching this conclusion, I do not find that the trial court erred. Such a finding is
not necessary prior to ordering rebriefing of a no-merit case. In order to determine that an
appeal is wholly without merit, or so frivolous that it may be decided without any adversary
presentation, we need not determine whether error was committed, but only that the case
is not wholly frivolous. “Wholly without merit” or “wholly frivolous” are the standards we
must apply in no-merit cases. Justus v. State, 96 Ark. App. 29, 237 S.W.3d 528 (2006).
Numerous evidentiary rulings in this case were decided adversely to the appellant.
I do not believe that the no-merit brief filed in this case adequately explains why none of
these rulings would arguably support an appeal. While I do not find that the trial court's
adverse rulings constitute an abuse of discretion, neither can I find that an appeal of the trial
court's decisions regarding admission or rejection of evidence propounded by appellant is
“wholly without merit.” Therefore, I respectfully dissent.
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