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Wagner v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

November 14, 2018

ASHLEY WAGNER APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-17-214] HONORABLE ANNIE HENDRICKS, JUDGE

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

          One brief only.

          KENNETH S. HIXSON, JUDGE.

         Ashley Wagner appeals after the Sebastian County Circuit Court filed an order terminating her parental rights to H.W. (DOB 3-17-2017).[1] Appellant's attorney has filed a no-merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court Rule 6-9(i) (2017) and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). The clerk of this court mailed a certified copy of counsel's motion and brief to appellant's last known address informing her of her right to file pro se points for reversal; however, she has not done so. We grant counsel's motion to withdraw and affirm the order of termination.

         I. Facts

         On April 25, 2017, Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of H.W., who was a little over a month old at the time. In the affidavit attached to the petition, DHS explained that the child had been removed after DHS was asked to assist with H.W.; appellant had been arrested and charged with maintaining a premises for drug activity, child endangerment, and possession of drugs and drug paraphernalia. The trial court granted the petition, finding that probable cause existed for the removal. The trial court found that there was probable cause to believe that the child was dependent-neglected and that it was contrary to the child's welfare to remain with appellant. It noted that appellant had been released from prison on March 8, 2017; had given birth to H.W. on March 17, 2017; and had been arrested on April 22, 2017, following a "drug bust" at the home she shared with her child. The trial court further noted that appellant had her parental rights involuntarily terminated to an older child on September 15, 2016, as a result of a case that opened because of newborn illegal-substance exposure. Subsequently, the trial court filed a probable-cause order.

         An adjudication hearing was held on June 7, 2017, and the trial court found that the child was dependent-neglected on the bases of parental unfitness, substance abuse, and threat of harm as defined in the Arkansas Juvenile Code. The goal of the case was reunification. Appellant was granted visitation at DHS's discretion and ordered to obtain and maintain stable and appropriate housing, employment, income, and transportation; complete parenting classes; undergo a psychological evaluation and complete any treatment recommended; stay clean and sober; submit to a drug-and-alcohol assessment and complete any treatment recommended; submit to random drug screens, hair follicle tests, and alcohol swabs at the request of DHS; and comply with her case plan, the terms of her parole, and any sentences imposed.

         A review hearing was held on October 18, 2017, and the trial court subsequently filed a review order and order of paternity. In its order, the trial court noted that appellant had not complied with the case plan. Appellant had exercised only two visits with her child, and she left early on both occasions when she was asked to submit to a drug test. Appellant failed to show up for five other scheduled visits even though DHS had confirmed beforehand that appellant would attend. The trial court announced that the concurrent goals of the case were reunification and adoption.

         On October 18, 2017, DHS and the attorney ad litem filed a joint petition for termination of parental rights. With respect to appellant, several grounds for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2017) were alleged, including involuntary termination of parental rights to another child, little likelihood, abandonment, and subsequent factors.

         At the January 10, 2018 termination hearing, appellant testified that she had resolved all her pending criminal cases and that she had either pleaded guilty or been adjudicated. She testified that she had not been incarcerated throughout the entirety of the case; rather, she had been incarcerated since November 2017. Appellant further anticipated that she would be released in June 2018. Appellant testified that she was still in a relationship with H.W.'s father and that they had lived together before her incarceration. Appellant explained that although she has five children, she did not have custody of any of them. Appellant testified that she does not consider herself a drug addict, but she admitted that she used drugs in April and November 2017 before her arrest. Appellant additionally admitted that she had not had stable employment before her arrest and that she had not attempted to communicate with anyone about finding employment once she is released. She requested that she be given a year to prove that she could take care of herself and H.W.

         Mindy Tuck-Duty, the DHS caseworker assigned to the case, testified regarding the case history as previously stated. She testified that appellant had completed only four visits in the last eight or nine months. Appellant left early during her last visit with H.W. after Tuck-Duty asked her to complete a drug screen. Tuck-Duty testified that she was also the caseworker assigned to appellant's previous dependency-neglect case in which appellant's parental rights to another child were involuntarily terminated. Tuck-Duty testified that appellant had similar compliance issues in that case. She testified that H.W. does not have any medical or developmental delays that would keep him from being adoptable and that there was someone currently interested in adopting him. Therefore, she opined that it was in the child's best interest to terminate appellant's parental rights.

          In the termination order, the trial court found by clear and convincing evidence that it was in the child's best interest to terminate appellant's parental rights. The trial court made the following pertinent findings:

3. The following items were introduced into evidence: proof of service on the mother and father, a certified copy of the Ex Parte order, a copy of the case plan, a certified copy of the Adjudication order, referral for a drug and alcohol assessment, a packet of referrals for the father, an email regarding a hair follicle not attended by the father, a certified sentencing order for Ashley Keel (aka Ashley Wagner) CR 2014-9-B-G, a certified sentencing order for Ashley Wagner CR 2016-28, a certified sentencing order for Ashley Wagner CR 2016-107B, a certified sentencing order for Randy Yancy CR 2016-107-A-G, a certified sentencing order for Ashley Wagner CR 2017-104B, a pending affidavit arrest warrant for Randy Yancey, a preliminary hearing order from Laflore County, OK regarding Randy Yancey CF-17-175, an affidavit of child support arrears on both parents, a warrant on Randy Yancey in the Sebastian County Warrant Search, an Oklahoma Journal Entry terminating Ashley Keel's (aka Ashley Wagner) ...

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