FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO.
60JV-15-755] HONORABLE WILEY A. BRANTON, JR., JUDGE.
Lanford, Arkansas Public Defender Commission, for appellant.
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
MARK KLAPPENBACH, JUDGE.
Annette Hughes appeals the March 30, 2017 order of the
Pulaski County Circuit Court that terminated her parental
rights to her three children: son ZB born in November 2009,
son CB born in March 2011, and daughter KB born in October
2012.Appellant argues on appeal that the trial
court's finding that it was in her children's best
interest to terminate her parental rights is not supported by
clear and convincing evidence. Thus, appellant argues, the
trial court's termination order must be reversed. Her
challenge specifically is that (1) the trial court failed to
address the factor of ZB's adoptability,  and (2) there
lacked evidence to support a finding of potential harm to the
children if returned to her custody. We affirm.
review termination-of-parental-rights cases de novo.
Mitchell v. Ark. Dep't of Human Servs., 2013
Ark.App. 715, 430 S.W.3d 851. At least one statutory ground
must exist, in addition to a finding that it is in the
child's best interest to terminate parental rights; these
must be proved by clear and convincing evidence. Ark. Code
Ann. § 9-27-341 (Repl. 2015); Dunn v. Ark. Dep't
of Human Servs., 2016 Ark.App. 34, 480 S.W.3d 186. Clear
and convincing evidence is that degree of proof that will
produce in the fact-finder a firm conviction as to the
allegation sought to be established. Anderson v.
Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The
appellate inquiry is whether the trial court's finding
that the disputed fact was proved by clear and convincing
evidence is clearly erroneous. J.T. v. Ark. Dep't of
Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark. Dep't of Human
Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006).
Credibility determinations are left to the fact-finder.
Henson v. Ark. Dep't of Human Servs., 2014
Ark.App. 225, 434 S.W.3d 371. In resolving the
clearly-erroneous question, a high degree of deference is
given to the trial court, as it is in a far superior position
to observe the parties before it and to judge the credibility
of the witnesses. Wallace v. Ark. Dep't of Human
Servs., 2017 Ark.App. 376, 524 S.W.3d 439.
does not challenge the trial court's finding of statutory
grounds. Her argument is focused solely on the best-interest
finding. The best-interest finding must be based on a
consideration of two factors: (1) the likelihood that, if
parental rights are terminated, the juvenile will be adopted,
and (2) the potential harm caused by returning the child to
the custody of the parent. Ark. Code Ann. §
9-27-341(b)(3)(A). Adoptability is not an essential element
but is rather a factor that the trial court must consider.
Singleton v. Ark. Dep't of Human Servs., 2015
Ark.App. 455, 468 S.W.3d 809. Testimony from a caseworker or
an adoption specialist that the children are adoptable is
sufficient. See Martin v. Ark. Dep't of Human
Servs., 2017 Ark. 115, 515 S.W.3d 599. A trial court is
not required to find that actual harm would result or to
affirmatively identify a potential harm. Id.
Potential harm must be viewed in a forward-looking manner and
in broad terms, including the harm the child suffers from the
lack of stability of a permanent home. Vail v. Ark.
Dep't of Human Servs., 2016 Ark.App. 150, 486 S.W.3d
229; Caldwell v. Ark. Dep't of Human Servs.,
2016 Ark.App. 144, 484 S.W.3d 719. A parent's past
behavior is often a good indicator of future behavior.
Stephens v. Ark. Dep't of Human Servs., 2013
Ark.App. 249, 427 S.W.3d 160. It is the "best
interest" finding that must be supported by clear and
convincing evidence after consideration of the foregoing
factors. Vail, supra.
these legal principles in mind, we examine the evidence
presented to the trial court. The Arkansas Department of
Human Services (DHS) sought emergency custody of the children
in May 2015 after appellant had been arrested for maintaining
a drug premises. Law enforcement executed a warrant at her
home and found methamphetamine, cocaine, marijuana, and
prescription pain pills, as well as firearms within reach of
the children. The children were then ages five, four, and
two. Appellant admitted being on probation for a theft charge
at that time, and she tested positive for marijuana. KB
tested positive for methamphetamine and cocaine. Appellant
subsequently stipulated to there being probable cause to
remove the children.
children were adjudicated dependent-neglected following a
July 2015 adjudication hearing. The trial court took judicial
notice of an earlier juvenile case in which her parental
rights had been involuntarily terminated to another child.
The trial court found that appellant was selling drugs out of
her home and that her drug activity put the children at
serious risk of harm. The goal was family reunification.
Appellant was ordered to submit to random drug-and-alcohol
screens, submit to a psychological evaluation, complete
parenting classes, follow any counseling and therapy
recommendations, obtain and maintain stable housing and
income, and clear up her legal issues.
matter was reviewed in a permanency-planning hearing in
October 2015. Appellant was ordered to continue her efforts
to comply with the case plan and to "resolve her
criminal charges, " given that she had a jury trial
scheduled for November 2015.
matter was reviewed again at a permanency-plan hearing in
April 2016. The trial court found it troubling that the
children had been in DHS custody for almost a year, that if
only appellant's parental rights were at issue it would
be "a clear case for termination" of parental
rights, that her drug and firearms convictions had resulted
in her being in prison, and that she was yet again pregnant.
The trial court was concerned that these very young children
deserved permanency and a chance to succeed in life, but they
had had nothing but instability. The trial court changed the
goals to concurrent goals of appropriate relative placement
or adoption, authorizing but not requiring the filing of a
petition to terminate parental rights. Ryan Bryant was deemed
to be the father of ZB, CB's biological father was
unknown, and Kevin Bailey (also in prison) was deemed to be
the father of KB. KB's paternal grandmother, Joyce Bailey
(Kevin Bailey's mother), was identified as a possible
placement for KB. Ryan Bryant, although not the biological
father of CB, was a possible placement for both ZB and CB.
DHS recommended working toward relative placements if those
were subsequently determined to be suitable.
2016, the attorney ad litem filed a petition to terminate all
parental rights, asserting multiple statutory grounds. This
petition was served on all parties at the June 2016
permanency-planning hearing. Appellant remained incarcerated,
and no child's relative had yet been deemed an
appropriate placement. Services were ordered to be provided
to appellant, to the extent that they could be, given her
incarceration. In this permanency-planning order, the trial
court noted that there had been no real change for months;
that it was "unimpressed" with ZB's father, who
had only sparingly participated in counseling; and that he
would have to participate meaningfully now if he was even to
be considered as a placement. In January 2017, the attorney
ad litem filed another petition to terminate all parental
rights, and it was heard in February 2017. Appellant
acknowledged that her children had been home when the SWAT
team executed the search warrant on her house and found drugs
and firearms. She had a prior felony conviction, so she was
not supposed to have firearms, and she acknowledged that she
had been dealing drugs out of her house. She had been
released from prison in November 2016, but she would be on
parole for four years. Also, she had a new baby but no job
and no home of her own. She was struggling with finding a job
due to her status as a recently released felon, but she was
working with a homeless shelter (Our House) to acquire
transportation, housing, and a new job. She said she had quit
a job at McDonald's and was about to start work at the
Waffle Bakery. Nonetheless, appellant thought that after more
than a year and a half out of her custody, the children
should just be given back to her. She thought she had gained
"common sense" and would be very protective of her
cross-examination, the attorney ad litem confronted appellant
with various photographs posted on her Facebook page of her
and her sons "giving the finger." Although the
photos were apparently taken and posted prior to the children
coming into DHS custody, they nonetheless remained on her
Facebook page. Despite smiling about it on the stand,