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Westbrook v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

September 4, 2019

Amber WESTBROOK, Appellant
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees

Page 259

[Copyrighted Material Omitted]

Page 260

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-17-490], HONORABLE ANNIE HENDRICKS, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          One brief only.

         OPINION

         RITA W. GRUBER, Chief Judge

          Counsel for Amber Westbrook brings this no-merit appeal from the Sebastian County Circuit Court’s order entered on December 4, 2018, terminating her parental rights to SW, born August 2, 2017. 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), her counsel has filed a no-merit brief setting forth all adverse rulings from the termination hearing and asserting that there are no issues that would support a meritorious appeal. Counsel has also filed a motion asking to be relieved. The clerk of this court sent a copy of the brief and motion to be relieved to appellant, informing her that she had the right to file pro se points for reversal under Arkansas Supreme Court Rule 6-9(i)(3), which she has filed. We grant counsel’s motion to withdraw and affirm the order terminating appellant’s parental rights.

          The Arkansas Department of Human Services (DHS) removed S.W. from appellant’s custody on November 22, 2017, after appellant had been arrested on felony warrants, and S.W. was discovered to have unexplained bruises on his face and head. After being interviewed upon her arrest, appellant agreed to submit to a drug test, which was positive for methamphetamine, amphetamines, and opiates. S.W. was adjudicated dependent-neglected in January 2018 due to parental unfitness, failure to protect, and inadequate supervision.

          In a review order entered on May 22, 2018, the court found that appellant had been arrested on March 18, 2018, for possession of drug paraphernalia and possession of a controlled substance and that she had admitted having used drugs before her arrest. She tested positive for THC, amphetamines, and MDMA on April 25, 2018, during her court appearance in the criminal case and was sent to jail. On August 9, 2018, appellant was found guilty of the charges and sentenced to 120 months’ imprisonment.

          DHS filed a petition for termination of parental rights on August 24, 2018, and the circuit court granted the petition in an order entered on December 4, 2018, finding that DHS had proved three grounds by clear and convincing evidence and that termination was in the child’s best interest.

          We review termination-of-parental-rights cases de novo. Hune v. Ark. Dep’t of Human Servs., 2010 Ark.App. 543, 2010 WL 2612681. At least one statutory ground must exist, in addition to a finding that it is in the children’s best interest to terminate parental rights. Ark. Code Ann. � 9-27-341 (Supp. 2017); Kohlman v. Ark. Dep’t of Human Servs., 2018 Ark.App. 164, 544 S.W.3d 595. A best-interest finding under the Arkansas Juvenile Code must include consideration of two factors, the likelihood of adoption and potential harm.

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Ark. Code Ann. � 9-27-341(b)(3)(A)(i) & (ii). However, adoptability is not an essential element of proof. McDaniel v. Ark. Dep’t of Human Servs., 2013 Ark.App. 263, at 4, 2013 WL 1776479. The statute does not require any "magic words" or a specific quantum of evidence regarding a child’s adoptability but simply provides that the circuit court consider the likelihood that the child will be adopted in making its best-interest determination. Smith v. Ark. Dep’t of Human Servs., 2013 Ark.App. 753, at 7, 431 S.W.3d 364, 368-69. Potential harm must be viewed ...


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