Amber Westbrook v. Arkansas Department of Human Services and Minor Child

2019 Ark. App. 352

• Court: Court of Appeals of Arkansas
• Decided: September 4, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 352 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.22 10:38:30 DIVISION IV -05'00' No. CV-19-178 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: September 4, 2019 AMBER WESTBROOK APPELLANT APPEAL FROM THE SEBASTIAN V. COUNTY CIRCUIT COURT, FORT SMITH DISTRICT ARKANSAS DEPARTMENT OF [NO. 66FJV-17-490] HUMAN SERVICES AND MINOR CHILD APPELLEES HONORABLE ANNIE HENDRICKS, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

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 SW from appellant’s

custody on November 22, 2017, after appellant had been arrested on felony warrants, and

SW 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. SW 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. 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

2 consideration of two factors, the likelihood of adoption and potential harm. 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. 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 in a forward-

looking manner and in broad terms. Riggs v. Ark. Dep’t of Human Servs., 2019 Ark. App.

185, at 5–6, 575 S.W.3d 129, 132.

Counsel correctly asserts that there can be no meritorious challenge to the sufficiency

of the evidence supporting the termination of appellant’s parental rights. Although the

circuit court found three statutory grounds for termination, only one ground is necessary to

support the termination. Campbell v. Ark. Dep’t of Human Servs., 2017 Ark. App. 82. Counsel

addresses the court’s finding that appellant had been sentenced in a criminal proceeding for

a period of time that would constitute a substantial period of the juvenile’s life. Ark. Code

Ann. § 9-27-341(b)(3)(B)(viii) (Supp. 2017). Although appellant testified that it was possible

she could be released on May 25, 2020, it is the prison sentence, not the potential release

date, that determines whether this statutory ground is satisfied. Brumley v. Ark. Dep’t of

Human Servs., 2015 Ark. 356, at 7. Even if she is released in May 2020, SW will be almost

three years old and will have spent all but three months of those three years out of appellant’s

custody. Moreover, appellant did not present any evidence that she will be prepared to

3 properly care for SW if she is released in May 2020. This ground supports termination of

appellant’s parental rights to SW, and any argument to the contrary would be without merit.

We note that the additional grounds found by the court—subsequent factors and

aggravated circumstances/little likelihood—are also supported by the evidence and would

not be meritorious grounds for reversal. Appellant was arrested and found guilty of drug

charges after SW had been taken into DHS custody. She also became pregnant and

continued to use drugs while pregnant and while SW was in foster care.

Counsel has also adequately explained why there is sufficient evidence to support the

court’s best-interest finding. Appellant’s former caseworker testified that SW is adoptable,

has no medical or mental disabilities, and is a very bright and happy child. She also testified

that she is concerned with appellant’s lack of stability and the emotional and psychological

harm if SW were returned to her. Appellant continued to use drugs even while pregnant

and knowing she had an ongoing dependency-neglect case regarding SW. The caseworker

testified that even if SW were not adoptable, the risk of harm of returning him to appellant

outweighed adoptability. On this record, the circuit court’s finding that termination of

appellant’s parental rights was in SW’s best interest was not clearly erroneous.

In addition, counsel has addressed several objections made by appellant’s counsel on

which the court did not rule. Because these were not adverse rulings, we do not discuss

them. Finally, counsel addressed the issue of the circuit court’s untimely orders of probable

cause and adjudication, which were both entered beyond the statutorily prescribed thirty

days. Ark. Code Ann. § 9-27-315(d)(3); Ark. Code Ann. § 9-27-327(f). We have held that

a failure to enter a timely order does not warrant reversal or any other sanction. Wright v.

4 Ark. Dep’t of Human Servs., 2018 Ark. App. 503, at 9–10, 560 S.W.3d 827, 833; see also

Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). We conclude

that counsel has adequately set forth the adverse rulings and explained why they do not

provide a meritorious basis for review.

Appellant argues in her pro se points that she has attended and completed various

programs while in prison to improve her parenting, treat her substance abuse, and aid in her

ability to transition to the workforce once released from prison. DHS and the attorney ad

litem correctly assert that most are new arguments and cannot be made for the first time on

appeal. See, e.g., Mercado v. Ark. Dep’t of Human Servs., 2017 Ark. App. 495, at 5. We also

note that appellant testified about some of these programs at the termination hearing. We

will not reweigh the evidence on appeal or second-guess the court’s credibility

determinations. Blasingame v. Ark. Dep’t of Human Servs., 2018 Ark. App. 71, at 6, 542

S.W.3d 873, 877.

Based on our examination of the record and the brief presented to us, we have

determined that counsel has complied with the requirements established by the Arkansas

Supreme Court for no-merit appeals in termination cases, and we hold that the appeal is

wholly without merit. Accordingly, we affirm the termination order and grant counsel’s

motion to withdraw.

Affirmed; motion to withdraw granted.

SWITZER and WHITEAKER, JJ., agree.

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

One brief only.