Mitchell v. Ark. Dep't of Human Servs. & Minor Children

• Decision Date: 04 December 2013
• Docket Number: No. CV–13–678.,CV–13–678.
• Parties: Amanda L. MITCHELL and John Anthony Mitchell, Appellants v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees.
• Court: Arkansas Court of Appeals

2013 Ark. App. 715

430 S.W.3d 851

Amanda L. MITCHELL and John Anthony Mitchell, Appellants

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees.

No. CV–13–678.

Court of Appeals of Arkansas.

Dec. 4, 2013.

Janet Lawrence, for appellant Amanda L. Mitchell; Leah Lanford, Arkansas Public Defender Commission, for appellant John Anthony Mitchell.

Tabitha B. McNulty, Office of Chief Counsel, and Chrestman Group, PLLC, by: Keith L. Chrestman, for appellees.

KENNETH S. HIXSON, Judge.

Appellant Amanda Mitchell and appellant John Mitchell appeal separately from the termination of their parental rights to their twelve-year-old son T.M., eleven-year-old son Z.M., and eight-year-old daughter L.M. Amanda's sole argument on appeal is that there was insufficient evidence to support the termination of her parental rights. John's counsel has filed a no-merit appeal and a motion to withdraw, stating that there is no issue of arguable merit to advance on appeal and that she should be relieved of counsel. We affirm both appeals, and we grant John's counsel's motion to be relieved.

We review termination of parental rights cases de novo. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark.Code Ann. § 9–27–341 (Supp.2011); M.T. v. Ark. Dep't of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). 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. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark. Dep't of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006).

Appellee Department of Human Services (DHS) has an extensive history with this family. It began in 2003, when the appellants' children were removed from their custody for about a month due to inadequate supervision and incarceration of both parents for endangerment of a minor. In June 2010 the children were placed in foster care at Amanda's request due to alcohol abuse and domestic violence in the home. After Amanda and John completed various DHS services including counseling and parenting classes, the children were returned to them in May 2011. In December 2011, DHS opened a protective-services case based on findings that the parents stayed drunk most of the time, that John abused Amanda in front of the children, and that the children were scared at home due to the domestic violence. It was found that Amanda had recently been arrested for public intoxication, disorderly conduct, and criminal mischief. John tested positive for THC, and Amanda refused to take a drug test.

The most recent removal of the children occurred on March 13, 2012, when the trial court entered an ex parte order for emergency DHS custody. The emergency order was based on an affidavit by a family service worker regarding events that occurred on the morning of March 10, 2012. On that morning, DHS received a call stating that Amanda was drunk and going from house to house in her neighborhood. The police were dispatched to the appellants' residence, and the police found Amanda to be intoxicated with multiple bruises, swelling, and abrasions on her face and neck. Amanda registered. 19 on a breathalyzer test, and she indicated that John had caused her injuries the night before when they were drinking whiskey. Amanda said that John had whipped her with a dog leash and locked her in the dog pen in their living room, which occurred in the presence of their daughter. Amanda's daughter had to let Amanda out of the cage. John had left home with the boys before the police arrived that morning.

On April 13, 2012, the trial court entered an order adjudicating the children dependent/neglected due to the parents' alcohol abuse and domestic violence. The goal of the case was reunification, and the parents were given visitation supervised by DHS. Both Amanda and John were ordered to submit to drug and alcohol screens, attend parenting classes, attend counseling, submit to a psychological evaluation and follow any recommendations, attend anger-management classes, and maintain stable housing and employment. John was ordered to submit to a drug-and-alcohol assessment, and Amanda was ordered to complete inpatient substance-abuse treatment.

On April 16, 2012, the trial court entered an emergency ex parte order suspendingJohn's visitation, and a subsequent order suspending John's visitation was entered on June 11, 2012. These orders were based on proof that, after the children were taken into DHS custody, the appellants were drinking together on March 28, 2012, and John dragged Amanda by her hair, kicked her, sprayed roach spray in her face, and choked her until she blacked out. As a result of this abuse Amanda suffered broken ribs, a punctured lung, and a lacerated liver, for which she underwent surgery and an extended stay in the intensive-care unit. These acts ultimately resulted in a felony conviction against John for domestic battery, for which he received a two-year prison sentence followed by a four-year suspended imposition of sentence.

On November 2, 2012, the trial court entered an order terminating reunification services because there was little likelihood that further services would result in successful reunification. The no-reunification order was based on proof that John was in prison, and that Amanda was not visiting the children and continued to drink alcohol excessively. An affidavit of a family service worker stated that Amanda drank alcohol for a week straight beginning on September 9, 2012, and then tried to commit suicide. The affidavit further stated that Amanda was unstable and had failed to cooperate with DHS or the court's orders. On November 21, 2012, the trial court entered a permanency-planning order changing the goal of the case to termination of parental rights and adoption.

DHS filed a petition to terminate both parents' parental rights on December 14, 2012. The termination hearing was held on April 15, 2013.

On May 3, 2013, the trial court entered an order terminating both Amanda's and John's parental rights to their three children. The trial court found by clear and convincing evidence that termination of parental rights was in the children's best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Ark.Code Ann. section 9–27–341(b)(3)(A)(i) & (ii) (Supp.2011). The trial court also found clear and convincing evidence of these two statutory grounds under subsection (b)(3)(B):

(vii) (a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent return of the juvenile to the custody of the parent.

...

(ix) ( a ) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:

( 3 )( A ) Have subjected any juvenile to aggravated circumstances. (B) “Aggravated circumstances” means:

( i ) ... [A] determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification[.]

At the termination hearing, Amanda testified that she had lived in a one-bedroom apartment for the past four months. Amanda stated that she had plans to move into a three-bedroom trailer in about six weeks. She acknowledged that since her children were removed in March 2012 she has lived in five different places. Amanda stated that she was unemployed, but that she has lupus and draws a monthly disability check.

Amanda acknowledged that she has had alcohol-abuse issues for the past thirteen years, and she said that she consistently endured domestic violence from John throughout their marriage. Despite their turbulent and violent relationship, Amanda remained in a relationship with John until he was incarcerated in September 2012. However, Amanda filed for divorce against John in January 2013, and she thought the divorce would be final a few weeks after the termination hearing.

Amanda testified about a fire at her residence in early January 2013. Amanda stated that she got drunk and forgot to turn off a burner on the stove, which caused the fire. Amanda said that while the house was on fire she was on the floor, was depressed, and did not want to leave the building. The house was full of smoke, and...