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Brown v. Arkansas Department of Human Services

Court of Appeals of Arkansas

October 4, 2017

TIMOTHY BROWN APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17JV-15-57] HONORABLE MICHAEL MEDLOCK, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Jerald A. Sharum, Office of Chief Counsel, for appellee.

          RAYMOND R. ABRAMSON, Judge

         Timothy 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).[1]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.

         On 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.

         After 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.

         A 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.

         On 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.

         K.C. 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.[2] 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 happy."

         In an 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.

         This 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 fact-finder. Id.

         Termination 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.

         Brown 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 ...


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