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Westbrook v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

October 30, 2019



          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 ...

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