FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17JV-15-57]
HONORABLE MICHAEL MEDLOCK, JUDGE
Tabitha McNulty, Arkansas Public Defender Commission, for
A. Sharum, Office of Chief Counsel, for appellee.
RAYMOND R. ABRAMSON, Judge
Brown appeals from the February 24, 2017 order of the
Crawford County Circuit Court terminating his parental rights
to his daughter, E.B. (DOB: 02/06/2015).On appeal,
Brown's sole challenge is the court's best-interest
finding. He argues that there was insufficient evidence
presented to establish the adoptability prong of the
best-interest analysis and that evidence failed to
demonstrate termination was in E.B.'s overall best
interest. For the following reasons, we affirm.
February 27, 2015, the Arkansas Department of Human Services
("DHS") filed a petition for emergency custody and
dependency-neglect. An emergency order was entered the same
day, which placed custody of E.B. with DHS. On March 5, 2015,
the circuit court found probable cause that E.B. was
dependent-neglected and that the emergency situation that
necessitated removal of the juvenile continued such that it
was necessary for the juvenile to remain in the custody of
DHS until the adjudication hearing. On April 9, 2015, the
circuit court adjudicated E.B. dependent-neglected due to
parental unfitness because of the mental-health issues of her
mother, Haley Mills.
E.B. was born at home, she was seen at the hospital, and
hospital workers were concerned with the ability of
E.B.'s mother to properly care for the child. E.B. had a
blueish discoloration on her right eye and eyelid, and she
tested positive for morphine. While in the hospital, Mills
was not cooperative and did not appropriately care for or
bond with E.B. Timothy Brown was identified as E.B.'s
father and was incarcerated at the time of the removal. In a
review order entered on October 1, 2015, the court found that
Brown is E.B.'s legal father and that he had been paroled
to Mills's house.
permanency-planning hearing was held on February 4, 2016, and
at it, the court found that Brown had not complied with the
case plan and noted that although he had been paroled to
Mills's home, the relationship had become volatile and
erupted into verbal altercations during visitations. In
November 2015, he stopped visiting E.B. and had had no
contact with DHS since that time. In the February 4 order,
the circuit court also changed the case goal to adoption with
termination of parental rights, and Brown was appointed an
attorney. DHS filed a petition to terminate parental rights
on August 31, 2016.
January 19, 2017, the circuit court held a hearing on the
termination petition, and Brown, who was incarcerated at the
time, testified. Brown stated that he believed he had
relatives who were interested in having E.B. placed in their
care, including his stepmother, Janie Brown. He testified
that, to his knowledge, Janie asked DHS to perform a home
study but that DHS refused to do so. Janie did not testify at
the hearing; nor did any of Brown's family members.
Oliver, the DHS caseworker assigned to the case, testified at
the termination hearing. She explained that E.B. had tested
positive for morphine and had been diagnosed with
laryngomalacia. Oliver testified that this disorder made it
difficult for E.B. to swallow, eat, or breathe. Oliver
explained that E.B. was getting healthier due to medical
treatments and was having a "new button" put in the
day of the hearing. Oliver also testified as to E.B.'s
adoptability, answering, "E.B. is adoptable. Like I
said, she's getting healthier by the day and she's
order entered on February 24, 2017, the circuit court
terminated Brown's parental rights, finding that there
was a likelihood that E.B. would be adopted and that
termination was in E.B.'s best interest. Brown timely
filed a notice of appeal.
court's review of cases involving the termination of
parental rights is de novo. Harbin v. Ark. Dep't of
Human Servs., 2014 Ark.App. 715, 451 S.W.3d 231. Grounds
for termination must be proved by clear and convincing
evidence, which is such a degree of proof that will produce
in the fact-finder a firm conviction as to the allegation
sought to be established. Id. Our inquiry is whether
the circuit court's finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous.
Id. Credibility determinations are left to the
of parental rights is a two-step process requiring a
determination that the parent is unfit and that termination
is in the best interest of the child. Houseman v. Ark.
Dep't of Human Servs., 2016 Ark.App. 227, at 2, 491
S.W.3d 153, 155. The first step requires proof of one or more
statutory grounds for termination; the second step, the
best-interest analysis, includes consideration of the
likelihood the juvenile will be adopted and of the potential
harm caused by returning custody of the child to the
parent. Norton v. Ark. Dep't of Human Servs.,
2017 Ark.App. 285. In determining potential harm, which is
forward-looking, the court may consider past behavior as a
predictor of likely potential harm should the child be
returned to the parent's care and custody.
Harbin, supra. There is no requirement to
establish every factor by clear and convincing evidence;
after consideration of all factors, the evidence must be
clear and convincing that termination is in the best interest
of the child. Id.
does not challenge the statutory grounds for termination. He
contends only that the circuit court committed reversible
error when it terminated his rights because there was a lack
of evidence introduced to establish the adoptability of E.B.
In making a best-interest determination, the circuit court is
required to consider two factors: (1) the likelihood that the
child will be adopted, and (2) the potential of harm to the
child if custody is returned to a parent. Miller v. Ark.
Dep't of Human Servs., 2016 Ark.App. 239, 492 S.W.3d
113. While the likelihood of adoption must be considered by
the circuit court, that factor is not required to be
established by clear and convincing evidence. Caldwell v.
Ark. Dep't of Human Servs., 2016 Ark.App. 144, 484