APPEAL
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FJV-18-464] HONORABLE ANNIE HENDRICKS, JUDGE
Brett
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
appellant.
One
brief only.
KENNETH S. HIXSON, Judge
Amber
Westbrook appeals after the Sebastian County Circuit Court
filed an order terminating her parental rights to T.W. (DOB
11-16-2018). 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) (2019) 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
November 20, 2018, the Arkansas Department of Human Services
(DHS) filed a petition for emergency custody and
dependency-neglect of T.W. In the affidavit attached to the
petition, DHS explained that T.W. had been removed after he
was born because appellant was incarcerated and the identity
of T.W.'s father was unknown. The trial court granted the
petition, finding that probable cause existed for the
removal. The trial court noted that DHS had previously been
involved with appellant concerning T.W.'s older sibling
who had been removed. DHS had provided services to appellant
in that case, including parenting classes, drug-and-alcohol
assessment, drug screens, drug treatment, and other services.
However, the trial court further noted that the services did
not result in appellant's rehabilitation, as she
continued to use illegal drugs and engage in unlawful
behaviors, which resulted in her current incarceration.
Subsequently, the trial court filed a probable-cause order.
An
adjudication hearing was held on January 9, 2019, and the
trial court found that T.W. was dependent-neglected on the
basis of parental unfitness as defined in the Arkansas
Juvenile Code. The goal of the case was set to reunification
with the concurrent goal of adoption following termination of
parental rights. The trial court noted that appellant's
parental rights had been involuntarily terminated to
T.W.'s older sibling because of appellant's lack of
compliance and unwillingness or inability to rehabilitate
herself or her circumstances, despite the meaningful services
offered. Appellant was ordered to avail herself of any
self-help classes offered while she was incarcerated and to
keep DHS apprised of any significant life events, including
being released from prison.
On
January 24, 2019, DHS filed a petition for termination of
parental rights. With respect to appellant, two grounds for
termination under Arkansas Code Annotated section
9-27-341(b)(3)(B) (Supp. 2017) were alleged, including
sentenced in a criminal proceeding for a substantial period
and aggravated circumstances.
At the
March 27, 2019 termination hearing, appellant testified that
she had been convicted of possession of methamphetamine and
possession of drug paraphernalia and was sentenced to serve
two concurrent ten-year sentences in the Arkansas Department
of Correction. She was sentenced on August 9, 2018, just
shortly before T.W. was born. She admitted that she has a
history of drug use since she was fifteen years old,
including during her pregnancy with T.W.; she was twenty-nine
years old at the time of the termination hearing. Appellant
further admitted that she has previous convictions, some
involving drugs, and that she had a pending charge for grand
larceny in Oklahoma. Additionally, appellant acknowledged
that her parental rights to another child, S.W., had been
involuntarily terminated. S.W. was removed from her care due
to her drug use and a bruise on his head. Although appellant
explained that she had completed some parenting classes, she
had not completed the parenting-without-violence class. She
testified that her tentative release date was April 6, 2020,
but she had a hearing before the parole board in October
2019, which she hoped would result in her early release in
2019. Therefore, appellant requested that the trial court
grant her more time to obtain her release and give her the
opportunity to parent T.W.
Bailey
Murray, the family-service worker assigned to the case,
testified regarding the case history as already outlined
above, including that appellant was serving a ten-year
sentence and still had nine years left on that sentence. She
explained that T.W. had not had any visits with appellant
since his birth and had not bonded with appellant. Murray
testified that T.W. is cute, sweet, and adoptable, despite
having potential disabilities, acid reflux, and
laryngomalacia. Because appellant had been incarcerated for a
substantial amount of time and has a history of physical
violence, Murray opined that it was not in T.W.'s best
interest to be returned to appellant due to the risk of harm.
She further opined that even if T.W. was not adoptable, the
risk of harm outweighed the adoptability factor.
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:
5. The Court has considered and reviewed all the evidence
submitted and the testimony of the witnesses, Amber Westbrook
and Bailey Murray, in this matter, and finds that the
Department of Human Services has proven by clear and
convincing evidence that:
a. That Amber Westbrook is sentenced in a criminal proceeding
for a period of time that would constitute a substantial
period of [T.W.'s] life. (A.C.A. ยง
9-27-341(b)(3)(B)(viii)). Amber Westbrook is currently
serving a total of two 120-month sentences, to be served
concurrently, in the Arkansas Department of Correction, which
is a total of ten (10) years. The mother was incarcerated on
August 15, 2018, and at this time has not served even a year
of her ten (10) year sentence. This juvenile has been out of
his mother's care since he was born and will be ten (10)
years old by the ...