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Baxter v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

October 4, 2017



          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          One brief only.


         Sabreann Baxter appeals from the termination of her parental rights to her son, J.B. Her counsel has filed a motion to withdraw and an accompanying brief 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). In it, counsel asserts that she has made a conscientious review of the record and applicable law in this case and found no meritorious issues that could arguably support the appeal. The clerk of our court sent copies of the brief and motion to Ms. Baxter, informing her that she had the right to file pro se points for reversal. She has done so, and the Department of Human Services (DHS) and counsel for the child have jointly responded, explaining why her points do not support a meritorious appeal of the termination. We affirm the termination of Ms. Baxter's parental rights and grant her counsel's motion to withdraw.

         Our court reviews termination cases de novo, and we will not reverse the trial court unless its findings are clearly erroneous. Ford v. Arkansas Dep't of Human Servs, 2017 Ark.App. 211. At least one statutory ground for termination must exist, in addition to a finding that it is in the child's best interest to terminate parental rights, and these bases must be proved 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. The appellate inquiry is whether the trial court's finding that the disputed fact was proved 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.

         In reviewing the record, counsel reports that there was only one adverse ruling, which was the termination itself, and that it does not provide an arguable basis for reversal. We agree.

         J.B. was taken into emergency custody at the time of his birth because he tested positive for methamphetamine. Ms. Baxter admitted at that time she had a long-time problem with methamphetamine. Her two-year-old child was already in her mother's custody.

         The probable-cause hearing was held on February 22, 2016, the adjudication hearing on April 6, 2016, and a review hearing on August 8, 2016. Ms. Baxter was not present for any of those hearings. At the August 8 review hearing, the trial court noted that the maternal grandmother had changed her mind about being considered for placement and set the concurrent goal of adoption and reunification. DHS was authorized to file a termination petition, which was done on December 15, 2016. The grounds alleged in the petition were 1) subsequent factors, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii); 2) abandonment, Ark. Code Ann. § 9-27-341(b)(3)(B)(iv); and 3) aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix), along with the assertion that it was in the child's best interest to terminate Ms. Baxter's parental rights.

         On February 6, 2017, a permanency-planning/termination hearing was held, and this was the first time Ms. Baxter appeared. She was brought to the hearing from the Arkansas Department of Correction.

         An adoption specialist, who had also been the caseworker assigned to the case, testified that J.B. had been in DHS custody since his birth based on a positive test for methamphetamine; that the termination hearing was the first hearing Ms. Baxter had attended; that there had been no visitation with Ms. Baxter, much less any trial placements; that she had continued to submit referrals for Ms. Baxter for psychological evaluation, parenting classes, individual counseling, and drug-and-alcohol assessment because those services had been ordered by the court, but she had had no way of notifying Ms. Baxter of the referrals; that Ms. Baxter had not completed any of the services offered by DHS; and that it was her opinion it was in J.B.'s best interest to terminate because he needed stability and Ms. Baxter had had no contact with him or DHS during the pendency of the case. She further testified that J.B. was adoptable based on her data-match search and that his medical issues did not pose a problem in that regard.

         Ms. Baxter also testified. She acknowledged that not only was she currently incarcerated but that she was also facing new felony-drug charges, and she was not sure what the outcome of those charges would be. She stated that she had not contacted DHS until she was served with the termination papers because that was the first time she had an address or phone number; that she wrote a letter because she did not have money or a phone number for a phone call; that she had been in contact with her mother, who had custody of her other child, and that her mother had advised her to give up J.B. for adoption; that she had been stressed out and depressed; that she was now willing to do anything to get the help she needs; that she was homeless, had a bad drug addiction, had been arrested three or four times since J.B. was taken into custody, and had not participated in any sort of drug therapy; and that although she had enrolled in parenting classes while in prison, she had not completed them.

         J.B.'s foster mother testified that his medical issues included aspirating and some hearing issues; that he attends occupational-speech- and cognitive-therapy classes and developmental preschool; and that he requires numerous medical visits and is on medication but was a happy baby.

         Following the termination hearing, the trial court terminated Ms. Baxter's parental rights, concluding that DHS had proved the grounds of subsequent factors, abandonment, and aggravated circumstances. The trial court further found that it was ...

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