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

Cite as 2019 Ark. App. 504
Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS
Perry
Date: 2022.08.05 11:06:50 DIVISION II
-05'00' No. CV-19-551
Adobe Acrobat version:
2022.001.20169
Opinion Delivered: October 30, 2019

AMBER WESTBROOK APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. 66FJV-18-464]

HONORABLE ANNIE HENDRICKS,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILD AFFIRMED; MOTION TO
APPELLEES WITHDRAW GRANTED

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

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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

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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. § 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 time the mother has
completed her sentence. This would be a substantial period of this juvenile’s
life. This young child deserves permanency; and,

b. Amber has subjected a juvenile to aggravated circumstances.
The “aggravated circumstances” in this case includes that there is little
likelihood that services to the mother will result in successful reunification
within a timeframe that is reasonable, as viewed from the perspective of the
juvenile, or that is consistent with the developmental needs of the juvenile.

The mother has had her parental rights involuntarily terminated in case
number JV2017-490. The juvenile in that case came into care when he was
only a few weeks old and remained in care due to the mother’s continued
drug use and criminal behavior, which resulted in her being currently
incarcerated. In that case, the Department offered the mother parenting
classes, a drug and alcohol assessment, drug screens, drug treatment, and other
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services. The services offered by the Department did not result in the
mother’s rehabilitation, as she continued to use illegal drugs and engage in
unlawful behaviors. There are no services the Department could offer that
would result in the successful reunification of the juvenile and the mother,
within a timeframe that is reasonable from the perspective of the juvenile.
Amber Westbrook is currently serving a total of two 120-month sentences in
the Arkansas Department of Corrections, which is a total of ten (10) years,
due to her relationship with drugs and her unlawful behavior. Amber’s
addiction and unlawful behavior has been ongoing since 2017, despite the
Department offering reasonable services. Amber’s ten (10) years’ sentence
would constitute a substantial period of [T.W.’s] life.

6. The Court finds by clear and convincing evidence that it is in the best
interest of the juvenile to involuntarily terminate the parental rights of Amber
Westbrook. In making this finding, the Court specifically considered (a) the
likelihood that the juvenile will be adopted, if the termination petition is granted;
specifically, the testimony of the primary case worker, Bailey Murray, who stated
that the juvenile is readily adoptable. [T.W.] is a young and happy child with the
characteristics of a child that any family would be happy to adopt. The Department
is readily able to identify adoptive families for the juvenile fitting the description of
the subject juvenile. However, regardless of adoptability, the Court finds that the
risk of harm to the juvenile that would exist if he were to be returned to the parent,
far out-weighs adoptability; and (B) the potential risk of harm on the health and
safety of the juvenile caused by returning the juvenile to the custody of the parent is
emotional, psychological, and physical. The juvenile has never been in the mother’s
care since birth, due to her ten (10) year prison sentence. The juvenile has no bond
with Amber. Amber has a history of drug use, including using while she was
pregnant, and admitted on the stand that she used illegal substances, even after
knowing she was pregnant. Furthermore, the mother has a history of physical abuse
that has never been addressed. The mother’s circumstances have not improved since
the Court initially found that it was contrary to the welfare of the juvenile to be in
the care of the mother, and that immediate removal of the juvenile from the care
and/or custody of Amber Westbrook was necessary to protect the health, safety, and
welfare of the juvenile from immediate danger.

7. As such, the Court grants the Petition of the Department of Human
Services and hereby involuntarily terminates all parental rights between Amber
Westbrook and [T.W.]

This appeal followed.

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II. Standard of Review

A trial court’s order terminating parental rights must be based on findings proved by

clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp 2017). Clear and

convincing evidence is defined as that degree of proof that will produce in the fact-finder a

firm conviction as to the allegation sought to be established. Posey v. Ark. Dep’t of Health &

Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews

termination-of-parental-rights cases de novo but will not reverse the trial court’s ruling

unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although

there is evidence to support it, the reviewing court on the entire evidence is left with a

definite and firm conviction that a mistake has been made. Id. In determining whether a

finding is clearly erroneous, an appellate court gives due deference to the opportunity of the

trial court to judge the credibility of witnesses. Id.

In order to terminate parental rights, a trial court must find by clear and convincing

evidence that termination is in the best interest of the juvenile, taking into consideration (1)

the likelihood that the juvenile will be adopted if the termination petition is granted; and

(2) the potential harm, specifically addressing the effect on the health and safety of the child,

caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing

of clear and convincing evidence as to one or more of the grounds for termination listed in

section 9-27-341(b)(3)(B). However, only one ground must be proved to support

termination. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918.

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The intent behind the termination-of-parental-rights statute is to provide

permanency in a child’s life when it is not possible to return the child to the family home

because it is contrary to the child’s health, safety, or welfare, and a return to the family home

cannot be accomplished in a reasonable period of time as viewed from the child’s

perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is

not determinative; the issue is whether the parent has become a stable, safe parent able to

care for his or her child. Cobb v. Ark. Dep’t of Human Servs., 2017 Ark. App. 85, 512 S.W.3d

694. Moreover, a child’s need for permanency and stability may override a parent’s request

for additional time to improve the parent’s circumstances. Id. Finally, a parent’s past

behavior is often a good indicator of future behavior. Id.

III. Termination

In dependency-neglect cases, if, after studying the record and researching the law,

appellant’s counsel determines that the appellant has no meritorious basis for appeal, then

counsel may file a no-merit petition and move to withdraw. Ark. Sup. Ct. R. 6-9(i)(1)

(2019). The petition must include an argument section that lists all adverse rulings that the

parent received at the trial court level and explain why each adverse ruling is not a

meritorious ground for reversal. Ark. Sup. Ct. R. 6-9(i)(1)(A). The petition must also

include an abstract and addendum containing all rulings adverse to the appealing parent that

were made during the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-

9(i)(1)(B).

In counsel’s no-merit brief, counsel correctly asserts that there can be no meritorious

challenge to the sufficiency of the evidence to support the termination of appellant’s parental

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rights. Although the trial court found two statutory grounds for termination, only one

ground is necessary to support the termination. See Campbell v. Ark. Dep’t of Human Servs.,

2017 Ark. App. 82. The trial court found by clear and convincing evidence that DHS

proved the aggravated-circumstances ground. Arkansas Code Annotated section 9-27-

341(b)(3)(B)(ix)(a) lists aggravated circumstances as a ground for removal:

The parent is found by a court of competent jurisdiction, including the juvenile
division of circuit court, to:

....

(3)(A) Have subjected any juvenile to aggravated circumstances.

(B) “Aggravated circumstances” means:

(i) A juvenile has been abandoned, chronically abused, subjected to extreme or
repeated cruelty, sexually abused, or a determination has been or is made by a judge
that there is little likelihood that services to the family will result in successful
reunification;

Here, evidence was presented that appellant had been incarcerated on two concurrent ten-

year sentences since T.W.’s birth. Further, appellant admitted that she had a grand-larceny

charge pending in Oklahoma at the time of the hearing. Moreover, despite having been

offered services in a separate DHS case involving another child, appellant’s parental rights

to that child were terminated due, in part, to her continued drug use, including during her

pregnancy with T.W., and her history of physical violence, which she refused to address or

to receive treatment. See Westbrook v. Ark. Dep’t of Human Servs., 2019 Ark. App. 352, 584

S.W.3d 258. Based on these facts, the aggravated-circumstances ground supported

termination of appellant’s parental rights to T.W., and any argument to the contrary would

be without merit. Because we conclude that DHS adequately proved the aggravated-

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circumstances ground, we need not discuss the remaining ground found by the trial court.

See Kohlman v. Ark. Dep’t of Human Servs., 2018 Ark. App. 164, 544 S.W.3d 595.

Appellant’s counsel further asserts that there can be no meritorious challenge to the

trial court’s finding that termination was in T.W.’s best interest, and we agree. The

testimony showed that appellant has a history of drug abuse and violence resulting in the

termination of her parental rights to another child. Additionally, she was incarcerated at the

time of the hearing. Moreover, the caseworker testified that T.W. is adoptable. On this

record, the trial court’s finding that termination of appellant’s parental rights was in T.W.’s

best interest was not clearly erroneous. Thus, after carefully examining the record and the

brief presented to us, we find that counsel has complied with the requirements established

by the Arkansas Supreme Court for no-merit appeals in termination cases, and we conclude

that the appeal is wholly without merit. Accordingly, we affirm the order terminating

appellant’s parental rights and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

ABRAMSON and VIRDEN, JJ., agree.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

One brief only.

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