Tenny v. Ark. Dep't of Human Servs.
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Cite as 2011 Ark. App. 360
ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CA10-1260
MICHAEL TENNY
Opinion Delivered
May 11, 2011
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. JV-2009-517-3]
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
HONORABLE STACEY
ZIMMERMAN, JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
CLIFF HOOFMAN, Judge
This is an appeal from an order terminating appellant’s parental rights to his daughter,
A.T., born March 12, 2009. Michael Tenny’s counsel has filed a no-merit brief and a motion
to withdraw as counsel pursuant to Linker-Flores v. Arkansas Department of Human Services, 359
Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), asserting that
there are no issues of arguable merit to support an appeal. The clerk of this court attempted
to mail a copy of counsel’s motion and brief to Tenny’s last known address informing him
of his right to file pro se points for reversal. Tenny’s last known address was a Department
of Correction facility where he is no longer incarcerated. We affirm the order terminating
Tenny’s parental rights and grant counsel’s motion to withdraw.
Termination of parental rights is an extreme remedy and in derogation of the natural
rights of parents, but parental rights will not be enforced to the detriment or destruction of
Cite as 2011 Ark. App. 360
the health and well being of the child. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App.
526. Grounds for termination of parental rights must be proven by clear and convincing
evidence. Id. Clear and convincing evidence is that degree of proof that will produce in the
fact-finder a firm conviction as to the allegation sought to be established. Id. When the
burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry
is whether the trial court’s finding that the disputed fact was proven by clear and convincing
evidence is clearly erroneous. 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. Id.
We agree with counsel’s brief that there were no adverse rulings at the termination
hearing other than the ultimate decision to terminate Tenny’s parental rights. Thus, the only
issue for appeal is whether there was clear and convincing evidence to support the
termination order.
The trial court determined that it was in the child’s best interest to terminate Tenny’s
parental rights and found clear and convincing evidence of two grounds for termination, Ark.
Code Ann. § 9-27-341(b)(3)(B)(i) and (ix)(a)(3)(B)(i) (Repl. 2009). The trial court
determined that termination was in the child’s best interest considering the likelihood that she
would be adopted and the potential harm caused by returning her to Tenny’s custody. Ark.
Code Ann. § 9-27-341(b)(3)(A). The family service worker testified that he did not believe
A.T. had any developmental or medical issues that would prohibit her from being adopted.
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He testified that she was a friendly, easy baby who was favorable for adoption statistically
because she was healthy, Caucasian, and under the age of two. He testified that the home she
was in was a foster-to-adopt home, and the foster parents had expressed an interest in
adopting A.T.
Regarding the potential harm of returning A.T. to Tenny, the DHS family service
worker testified that Tenny had not been in compliance with the court orders and case plans
because he had been incarcerated throughout the case. DHS did not know Tenny’s
anticipated release date from incarceration, although Tenny testified that he hoped to be
released within one month. DHS noted that Tenny had been incarcerated for 13 months of
A.T.’s 17-month life. The family service worker testified that even if Tenny were released
that day, he did not believe that Tenny would be in a position to take custody of A.T. We
find that there is sufficient evidence to support the trial court’s finding that termination was
in the child’s best interest.
There is also sufficient evidence to support the statutory ground for termination found
by the trial court in Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i)—that 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. Aggravated circumstances means “a
juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty,
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.” Ark. Code Ann. § 9-27-
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341(b)(3)(B)(ix)(a)(3)(B)(i). DHS exercised an emergency hold on A.T. on July 17, 2009,
upon finding her in a home with a methamphetamine lab and arresting her parents. The
circuit court granted a petition for emergency custody. The affidavit of the family service
worker stated that the drug task-force officer reported that the methamphetamine lab was
one of the largest he had seen. In an order filed September 28, 2009, the court adjudicated
A.T. dependent-neglected due to abuse, neglect, and parental unfitness. The court found that
A.T. was exposed to illegal drugs according to a hair follicle test that was positive for
marijuana and that she was exposed to noxious chemicals as a result of her presence in a
home that contained an operational methamphetamine lab. In termination cases, a challenge
to the finding of abuse must be made, if at all, in an appeal from the adjudication hearing.
Krass v. Ark. Dep’t of Human Servs., 2009 Ark. App. 245, 306 S.W.3d 14 (citing Dowdy v. Ark.
Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722). Tenny did not appeal from the
adjudication order. In the termination order, the court found that exposure to drugs and
chemicals constituted grounds for termination because the parents had subjected A.T. to
aggravated circumstances. We agree that A.T. was subjected to aggravated circumstances in
the form of “extreme or repeated cruelty.” Thus, there is sufficient evidence to support
termination of Tenny’s parental rights upon this ground.
Proof of only one statutory ground is sufficient to terminate parental rights. Hughes v.
Ark. Dep’t of Human Servs., 2010 Ark. App. 526. Therefore, the circuit court’s findings on
the other ground for termination need not be discussed.
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Cite as 2011 Ark. App. 360
Based on our review of the record and the brief submitted to us, we conclude that
counsel has complied with Rule 6-9(i) and that the appeal is without merit. Accordingly, we
affirm the termination order and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
V AUGHT, C.J., and R OBBINS, G RUBER, and B ROWN, JJ., agree.
H ART, J., dissents.
JOSEPHINE L INKER H ART, Judge, dissenting. I cannot in good conscience agree that
a merit appeal of the termination of Michael Tenny’s parental rights to A.T., born March 12,
2009, would be wholly frivolous. Linker-Flores v. Arkansas Department of Human Services, 359
Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup.Ct. R. 6-9(i), require an explanation of why
each adverse ruling would not be a meritorious ground for reversal. The brief before me
utterly fails in this regard.
First, Tenny’s appellate counsel does not discuss the trial court’s “reasonable efforts”
finding. Tenny was imprisoned during the majority of this case. An ADHS witness testified
at the termination hearing that ADHS was unable to provide reunification services to Tenny,
despite the fact that the Washington County Circuit Court twice denied ADHS’s motion to
terminate reunification services. For Tenny, there was no staffing, no case plan, no effort to
arrange visitation, and no reunification services. Ultimately, the trial court forgave this flagrant
disregard of its orders and blamed Tenny for ADHS’s failure to provide services. I cannot
conceive of how this finding would not be worthy of challenging in a merit brief. It is worth
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noting that, without ADHS assistance, Tenny underwent substance-abuse treatment and
attempted to take parenting classes on his own. Whether Tenny manifested the incapacity or
indifference to rehabilitate his circumstances in light of his efforts in prison could certainly
support a nonfrivolous appeal.
Second, at the August 18, 2010 termination hearing, the only evidence regarding the
expected duration of Tenny’s incarceration came from Tenny himself, who testified that he
had already been approved for parole and would be released during the next month. The trial
court apparently found this testimony to be credible, and our clerk’s unsuccessful attempt to
furnish Tenney with a copy of appellate counsel’s brief at the Arkansas Department of
Correction proved that Tenny’s testimony was truthful. Accordingly, the validity of the trial
court’s termination of Tenny’s parental rights on the grounds stated in Arkansas Code
Annotated section 9-27-341(b)(3)(B)(vii) (Repl. 2009), that Tenny would be incarcerated for
a “substantial period of the juvenile’s life,” is worthy of a merit brief. Significantly, the trial
court did not make an adequate finding on this element; it merely stated that Tenny had
criminal “issues” to deal with—he would face an additional two years’ probation. I submit
that a merit brief on how this finding falls short of the requirements of Arkansas Code
Annotated section 9-27-341(b)(3)(B)(vii) would not be wholly frivolous. In fact, I cannot see
how Tenny’s case is different in any material way from a similarly situated appellant in Fredrick
v. Arkansas Department of Human Services, 2009 Ark. App. 652, where we ordered a merit brief.
This court should be bound under the law to treat similarly situated litigants the same.
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Cite as 2011 Ark. App. 360
Finally, the trial court’s finding regarding the exposure of the children to the meth
lab—which the majority has chosen to cite—does not survive close scrutiny. The sole
evidence on this issue came from an affidavit attached to ADHS’s petition for emergency
custody. The trial court found that Tenny “expose[d] the child to aggravated circumstances
and extreme cruelty in having her in a house with a humongous meth lab.” However, there
was no evidence that the meth lab was operational; the affiant merely stated that the drug task
force “discovered multiple components of a meth lab.” There is also no evidence that the
child was exposed to any chemicals; the child was examined and drug-tested at Washington
Regional Medical Center, and no evidence of methamphetamine or precursors were reported
as being found in the child’s system. In fact, after the examination, the child was declared
“healthy.” While it is true that the child’s hair follicle test revealed that the child had been
exposed to marijuana, there is no evidence that it was Tenny, and not the child’s mother,
Jennifer Ralston, or some other person, who exposed the child to the drug. Given Ralston’s
history of drug addiction and the tender age of the child at the time she entered ADHS
custody (she was only four months old), it is even possible that the child’s exposure to
marijuana occurred while she was in utero. In short, these key findings are almost entirely
speculation and conjecture. Again, I submit that a merit brief in which the validity of these
findings is discussed would not be wholly frivolous.
Certainly I do not condone mistreatment of children in any way. However, to fulfill
our obligations as appellate judges, we must look at the facts of this case dispassionately. Here,
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Cite as 2011 Ark. App. 360
we have a natural parent who accompanied the mother of his child to a house belonging to
her relatives. Present in the house were components used to manufacture methamphetamine.
Tenny is now out on parole, under the supervision of the probation department. ADHS gave
him no opportunity to regain custody of his child, perhaps in no small part because, as the
majority noted, the child was “a friendly, easy baby who was favorable for adoption
statistically because she was healthy, Caucasian, and under the age of two.”
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