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Wingate v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

December 6, 2017

TIFFANY WINGATE APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT [NO. 47JV-15-21] HONORABLE RALPH WILSON, JR., JUDGE

          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          One brief only.

          BRANDON J. HARRISON, JUDGE.

         The Mississippi County Circuit Court terminated the parental rights of Tiffany Wingate to her daughter, B.M. Wingate's counsel has filed a no-merit brief pursuant to 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) (2017), asserting that there are no meritorious issues that could arguably support an appeal and seeking permission to withdraw as counsel. The clerk of this court sent a copy of counsel's brief and motion to withdraw to Wingate, advising her of her right to file pro se points for reversal pursuant to Ark. Sup. Ct. R. 6-9(i)(3), but she has not done so. We grant counsel's motion to withdraw and affirm the order terminating Wingate's parental rights.

         On 2 March 2015, the Arkansas Department of Human Services (DHS) petitioned for emergency custody of three-day-old B.M. The accompanying affidavit explained that both Wingate and B.M. tested positive for amphetamines when B.M. was born and that Wingate admitted using methamphetamine while she was pregnant. The circuit court issued an order for emergency custody and later found probable cause to continue custody with DHS.

         On 13 April 2015, the court adjudicated B.M. dependent-neglected and set the goal of the case as reunification. The adjudication order noted that Wingate had completed a drug-and-alcohol assessment, submitted to random drug screens, completed parenting classes, and watched "The Clock is Ticking" video. Wingate was ordered to complete outpatient treatment and to resolve her criminal charges.

         The court reviewed the case in July 2015 and found that Wingate had partially complied with the case plan and court orders. It recited Wingate's compliance as noted above but found that three out of five drug screens had been positive for amphetamines, methamphetamine, and THC. It also found that Wingate had not obtained stable housing or maintained stable employment or income. In addition, Wingate had not complied with the recommendation of outpatient substance-abuse treatment. She was ordered to complete a second drug-and-alcohol assessment and follow the recommendations, obtain stable housing and employment, and submit to random drug screens. Another review in October 2015 revealed that Wingate had once again not followed the recommendation from her drug-and-alcohol assessment and had not obtained stable housing or employment. The order also noted three positive drug screens in September 2015.

         In February 2016, the court entered a permanency-planning order changing the goal of the case to either a permanent custodian or termination of parental rights and adoption. The court found that Wingate had not maintained stable housing or employment, had not complied with the recommended drug treatment, and had two positive drug tests in November and December 2015. The order noted that Wingate had begun an inpatient drug rehabilitation but left after one day. A June 2016 review order noted continued noncompliance as described above and that Wingate had again entered a rehabilitation program but left after a few days. In August 2016, DHS petitioned to terminate Wingate's parental rights alleging several grounds: twelve month/failure to remedy, failure to provide significant material support or maintain meaningful contact, subsequent factors/incapacity or indifference to remedy, and aggravated circumstances. See Ark Code Ann. § 9-27-341(b)(3)(B)(i)(a), (ii)(a), (vii)(a), & (ix)(a) (Repl. 2015).

         At the termination hearing in December 2016, Wingate testified that she was currently housed in the county jail but expected to be released by December 30. She explained that she had been jailed after police had found a glass pipe used to smoke methamphetamine and a needle used to inject methamphetamine in the car with her and her "old man." She testified that she had attended a drug-and-alcohol assessment, which recommended twelve weeks of treatment, but that she had undergone "probably like five" weeks of treatment. She admitted that she had tested positive for methamphetamine since April 2015 but insisted that she was "a hundred percent" clean now. She conceded that she did not have a stable home and was not employed. She admitted that she had been a "messed up mama" and asked that DHS "give [her] another chance."

         Greg Watson, the DHS caseworker, testified that Wingate had complied with some requirements of the case plan and that she had attended three drug-and-alcohol assessments. Watson explained that Wingate had not followed the recommendations from those assessments and had not been able to obtain sobriety on a steady basis. He also stated that Wingate had not visited B.M. since September 2015. He agreed that there were no additional services that DHS could offer that would likely result in reunification. As to B.M., Watson testified that she had been in the same foster home since her initial placement and that she was doing well. He said that B.M. is adoptable and agreed that it would be harmful to place B.M. in Wingate's custody.

         After DHS rested, Wingate moved for a directed verdict, asserting that DHS had not proved that termination was in B.M.'s best interest and that DHS had not proved the statutory grounds for termination.[1] The court granted the motion as to failure to provide significant material support but otherwise denied the motion.

         Wingate was recalled to the stand and again asked the court to give her another chance. She admitted she had "failed in the beginning" because of her drug use but said that she had been clean for four months. Wingate then renewed her motion to dismiss, which was denied.

         From the bench, the circuit court granted the petition to terminate Wingate's parental rights. The court entered a written order in February 2017 terminating Wingate's parental rights on statutory grounds of twelve month/failure to remedy, subsequent factors/incapacity or indifference to remedy, and aggravated circumstances. The court also ...


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