Linker-Flores v. Dept. of Human Services

• Decision Date: 07 October 2004
• Docket Number: No. 03-1099.,03-1099.
• Citation: 194 S.W.3d 739
• Parties: Mary LINKER-FLORES, Anastacio Flores, Appellants v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Adrianna Flores and Aranthza Flores, Minor Children, Appellees.
• Court: Arkansas Supreme Court

194 S.W.3d 739

Mary LINKER-FLORES, Anastacio Flores, Appellants v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Adrianna Flores and Aranthza Flores, Minor Children, Appellees.

No. 03-1099.

Supreme Court of Arkansas.

October 7, 2004.

COPYRIGHT MATERIAL OMITTED

Cuffman and Phillips, by James H. Phillips, Little Rock, for appellant Anastacio Flores.

Anne Orsi Smith, P.A., by Anne Orsi Smith, Little Rock, for appellant Mary Linker-Flores.

Gray Allen Turner, DHS Office of Chief Counsel, Little Rock, for appellee.

Merry Alice Hesselbein, Attorney ad Litem, Little Rock, for appellees Adrianna Flores and Aranthza Flores, minor children.

ANNABELLE CLINTON IMBER, Justice.

This case arises out of an order entered by the trial court on March 3, 2003, that terminated all parental rights of Appellants Anastacio Flores and Mary Linker-Flores. Mr. Flores appeals, arguing the evidence against him was insufficient to support a termination of parental rights. Although Mrs. Flores timely filed notices of appeal,¹ her appointed counsel filed a motion in this court to be relieved as counsel on the grounds that she could find no meritorious issues for appeal. Because Mrs. Flores is entitled to representation on appeal under Ark.Code Ann. § 9-27-316(h)(1)(Supp.2003), we denied counsel's motion to be relieved and ordered the parties to brief the issue of whether counsel representing a parent in a termination proceeding should be required to file a no-merit brief comparable to that required under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), where there appears to be no meritorious grounds for appeal. Linker-Flores v. Arkansas Dep't of Human Services, 356 Ark. 369, 149 S.W.3d 884, 2004 WL 396342 (March 4, 2004)(per curiam). This is an issue of first impression in Arkansas. Thus, our jurisdiction is proper pursuant to Ark. S.Ct. R. 1-2(b)(1).

1. Appellant Anastacio Flores— Sufficiency of the Evidence

Mr. Flores is purportedly married to Mary Linker-Flores,² who has three children, Kevin, Chad, and Lauren Linker, by another marriage. Additionally, Mr. and Mrs. Flores have two children, Aranthza and Adrianna Flores. This case began on July 27, 2001, when the Arkansas Department of Human Services (DHS) filed a petition for emergency custody of all five children. DHS had been investigating the Linker-Flores family since April 9, 2001, when the Department received an initial report of educational neglect. On May 10, 2001, the case was assigned to a caseworker and services such as home visits and a referral for housing were offered to the family. On July 25, 2001, DHS received a call from a detective with the Little Rock Police Department, stating that Kevin Linker had raped Chad and Lauren Linker. At this time, both parents were arrested on warrants. Kevin was arrested, and the assessor initiated a seventy-two-hour hold on the children because of the uncertainty of the sexual abuse allegations and the lack of a legal caretaker. The court entered an Order for emergency custody and set the matter for an emergency hearing on August 1, 2001.

At the August 1, 2001 hearing, the trial court found that probable cause existed and maintained the children in the custody of DHS. The court also ordered a home evaluation of the Linker-Flores home and supervised visitation for Mr. and Mrs. Flores at the DHS office.

On September 13, 2001, at the adjudication hearing, the court found the children were dependent/neglected and maintained them in DHS custody. The court also ordered both parents to attend and complete parenting classes. The court set March 11, 2001, for another review. Mr. Flores did not appear at the March review hearing.

On July 22, 2002, at the permanency planning hearing, the court ordered Mr. Flores to undergo a drug and alcohol assessment, and attend classes for drug and alcohol abuse and anger management. The court set January 8, 2003, as the date for the termination hearing.

At the termination hearing, numerous witnesses testified to various problems with Mr. Flores that made him an unsuitable parent. Dr. Janice Church, one of the therapists for Lauren Linker, testified that Mr. Flores's cooperation was minimal and it took him a long time to get into the program. Once he started the program, he would not voluntarily come to therapy but only attended because of the court order. Dr. Church testified that though Mr. and Mrs. Flores minimized the problems in their relationship and Mr. Flores's abuse of alcohol, the children consistently talked about it and there was no reason to doubt the children's truthfulness. Dr. Church further testified that Mr. Flores admitted to usually drinking twelve to twenty-four beers over a two-day period, but he did not see himself as having a problem with alcohol. After Mrs. Flores was incarcerated, Dr. Church had a few sessions with Mr. Flores, but then Mr. Flores failed to return for further therapy.

Jim Harper, the therapist who had worked with Chad Linker, testified that he was very concerned about Mr. Flores's problems with domestic abuse and alcoholism. Harper testified that at intake, Chad said he got along with Mr. Flores except on Fridays when Mr. Flores became drunk, beat his mother and tore her underwear.

Dr. Paul Deyoub, the clinical psychologist who performed psychological evaluations on Mr. and Mrs. Flores, testified that Mr. Flores "had some interest in getting his biological children, but had no interest in the family, and very little sympathy for the victims." Furthermore, Dr. Deyoub found Mr. Flores to be "resistant beyond the language barrier" and testified that, for Mr. Flores to be capable to take his children would require "that he have a stable situation and that he is providing an adequate home and he will participate in some type of counseling for himself regarding the substance abuse, regarding parenting issues and do better than he did with me in the evaluation when I saw him."

Anna Foster, the case worker, testified both parents completed parenting classes and have had random drug-screens, which have all been negative. She testified she was never able to do a home evaluation because the family didn't have a permanent home. She further testified that on one occasion at the end of November or early December 2002, Mr. Flores came to the DHS office for a visit, smelling very strongly of alcohol. She asked him about it and he originally denied it, but later changed his story to having had one beer due to his many problems. Ms. Foster also testified that Mr. Flores was currently living at 6200 Asher Avenue in the Chateau Apartments with other Mexican males and that he had said he could not care for his two children without their mother.

Mary Linker-Flores testified that she and Mr. Flores had moved around a lot, living with friends and in some motels. She testified that currently she and Mr. Flores lived in the Chateau Apartments, where usually there were four or five men and an extra on some occasions. She admitted the current living arrangement was inappropriate because of the other men and the drinking there. She denied that Mr. Flores hit her, except for one time when he was drunk and she was pregnant. Mr. Flores did not testify. After hearing all the evidence, the court made the following finding:

As to Anastachio Flores, father of Adrianna Flores (DOB: 9-8-00) and Aranthza Flores (DOB: 8-17-99), he has attended most of the hearings and visits and he has worked at a job most, if not all, of the time since this case was opened, but he has not had stable housing, despite steady income; it has never been determined if he is a legal resident; he has gone to some counseling sessions, but would not go unless mother went; he lives with five to six male Mexican immigrants in an apartment; he has never worked with the case worker to develop a plan to care for the children without help from the mother; he stated he would take the children to Mexico and have his wife there to care for them. There is evidence of substantial consumption of alcohol and he came to one visit at DHS after drinking beer. The court has accommodated him with interpreters at hearings and evaluations. Still there has been no evidence presented that he could parent these children. Thus, the Court finds that it is in the Flores children's best interest that the parental rights of Mr. Flores be and hereby are terminated.

Throughout this case, the Court finds that the Department made reasonable efforts to offer services to the family. Further, the Court finds that the Department made meaningful efforts to offer services to the family. The mother and father have failed to take advantage of the services, rehabilitate their lives and remedy the situation which caused removal of the children from the home.

Mr. Flores appeals from this order, arguing the evidence was insufficient to support the termination of parental rights by the court. We find the evidence was sufficient and affirm the trial court.

Mr. Flores argues the trial judge was not presented with clear and convincing evidence of meaningful efforts as required pursuant to Ark.Code. Ann. § 9-27-341 (Supp.2003). Our law is well settled that when the burden of proving a disputed fact is by clear and convincing evidence, the inquiry on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Baker v. Arkansas Dep't of Human Services, 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is defined as "that degree of proof which will produce in the factfinder a firm conviction as to the allegation sought to be established." In making such a determination, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id.

In this case, the trial judge was presented with clear and convincing evidence of meaningful efforts by DHS. Over the course of the fifteen-month investigation, DHS offered...