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Lewis v. Arkansas Dep't of Human Services11/17/2005
ed stable housing and stable employment. Because appellant was not employed, he lacked the financial ability to provide the day-to-day needs of the children, and he failed to comply with court orders to provide child support. According to Ms. Hoggard's testimony, appellant received an income-tax refund, but he did not pay any fines or child support with the money. She also testified that DHS asked appellant to leave his father's home after he slapped A.L. in the face. Although appellant completed alcohol and drug inpatient treatment, as well as parenting classes and visitation, he repeatedly failed to comply with the circuit court's orders. Thus, his parental rights must give way to the best interest of the child when he seriously failed to provide reasonable care for his minor children. See Jones, supra.
Following the standard we have set out for no-merit briefs in criminal cases, no-merit briefs in termination-of-parental-rights cases "shall include an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal." See Ark. Sup. Ct. R. 4-3(j). In this case, our review of the record reveals four rulings adverse to appellant in the termination hearing that were not abstracted or included in the argument section. Generally speaking, if a no-merit brief fails to address all the adverse rulings, we will send it back for rebriefing. Brady v. State, 346 Ark. 298, 57 S.W.3d 691 (2001); Mitchell v. State, 327 Ark. 285, 938 S.W.2d 814 (1997). However, as this is our first occasion to address the specific procedures for a termination-of-parental-rights no-merit brief and as the adverse rulings were clearly not meritorious, we decline to order rebriefing so as to avoid any further delay in this case.
The first and second adverse rulings in the termination hearing involved the circuit court's denial of appellant's request to grant a continuance and the circuit court's proceeding with the trial, notwithstanding that appellant was late to the termination hearing. The circuit court announced that appellant had notice of the hearing, and these adverse rulings were cured by appellant arriving late to the hearing.
The third and fourth adverse ruling involved admitting the testimony of Mr. Bolar concerning appellant's criminal convictions and his time served. The circuit court denied appellant's motion to strike the testimony, and the circuit court further overruled an objection to Mr. Bolar's testimony. The circuit court ruled that the testimony "goes to weight rather than admissibility." Here, the circuit court's reliance on appellant's prior convictions and sentences goes to the weight to be given Mr. Bolar's testimony and not its admissibility. Mr. Bolar testified to his observations as a jail administrator. See Ark. R. Evid. 701. Thus, we conclude that the circuit court did not err in admitting this testimony.
Based upon the foregoing reasons, as well as our standard of review, we hold that the circuit court did not err in concluding that there was clear and convincing evidence to terminate appellant's parental rights under Ark. Code Ann. § 9-27-341. Accordingly, we grant appellant's attorney's motion to withdraw, and we affirm the circuit court's rulings.Affirmed.
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