FROM THE PULASKI COUNTY CIRCUIT COURT, ELEVENTH DIVISION [NO.
60JV-15-725] HONORABLE PATRICIA JAMES, JUDGE
Tabitha McNulty, Arkansas Public Defender Commission, for
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
D. VAUGHT, JUDGE.
Connors appeals the Pulaski County Circuit Court's
termination of his parental rights to his son,
On appeal, he challenges only the court's best-interest
finding, arguing that the Arkansas Department of Human
Services (DHS) failed to introduce sufficient evidence of
K.T.'s adoptability and that the court failed to consider
placement with a relative. We disagree and affirm.
placed an emergency seventy-two hour hold on K.T. and his two
half-siblings, J.T. and B.P., after his mother and B.P. both
tested positive for illegal drugs at the time of B.P.'s
birth. The children's mother admitted using PCP during
her pregnancy. Connors was and remained incarcerated
throughout this case. The juveniles were adjudicated
dependent- neglected, and the case proceeded through several
review and permanency-planning hearings. At one such hearing,
Connors was held in criminal contempt of court for three
separate outbursts. At another hearing, he appeared but
stated that he did not want to be there and left.
a hearing on DHS's first termination petition, the court
terminated the parental rights of two other parents involved
in the case but denied the petition as to Connors because it
found that DHS had failed to introduce sufficient evidence
that services had been provided to Connors in prison or as to
the length of his sentence. After the filing of a second
termination petition and a hearing, the court granted
DHS's petition and terminated Connors's parental
rights. This appeal followed.
cases are reviewed de novo. Hune v. Ark. Dep't of
Human Servs., 2010 Ark.App. 543. 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, 248, 947 S.W.2d 761, 763 (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.
Id., 947 S.W.2d at 763. In resolving the clearly
erroneous question, we give due regard to the opportunity of
the trial court to judge the credibility of witnesses.
Camarillo-Cox v. Ark. Dep't of Human Servs., 360
Ark. 340, 352, 201 S.W.3d 391, 399 (2005). Termination of
parental rights is an extreme remedy and in derogation of a
parent's natural rights; however, parental rights will
not be enforced to the detriment or destruction of the health
and well-being of the child. Meriweather v. Ark.
Dep't of Health & Human Servs., 98 Ark.App. 328,
331, 255 S.W.3d 505, 507 (2007).
appeal, Connors does not challenge the court's findings
as to the statutory grounds for termination; he argues only
that the court's best-interest determination was clearly
erroneous because (1) there was insufficient evidence of
adoptability and (2) it did not consider relative placement
as an alternative. As to adoptability, Connors specifically
argues that, although a DHS caseworker testified that she had
run K.T.'s characteristics through a computer database of
potential adoptive parents and found 125 families that would
be interested in adopting children like K.T., this evidence
failed to take into account K.T.'s sexual aggression.
argument fails for two reasons. First, adoptability is not an
element that must be proved but is simply a factor that must
be considered in determining the child's best interest. A
best-interest finding under the Arkansas Juvenile Code must
be based on the consideration of two factors, the first of
which is the child's likelihood of adoption. Ark. Code
Ann. § 9-27-341(b)(3)(A)(i) (Repl. 2015). Adoptability
is not a required finding, and likelihood of adoption does
not have to be proved by clear and convincing evidence.
Duckery v. Ark. Dep't of Human Servs., 2016
Ark.App. 358, at 5-6. We have previously explained that the
Juvenile Code does not require "any 'magic
words' or a specific quantum of evidence" to support
a finding as to likelihood of adoption. Sharks v. Ark.
Dep't of Human Servs., 2016 Ark.App. 435, at 8, 502
S.W.3d 569, 576. The law simply requires that the court
consider adoptability and that if there is an adoptability
finding, there must be evidence to support it. See Haynes
v. Ark. Dep't of Human Servs., 2010 Ark.App. 28, at
4 (reversing a best-interest determination because no
evidence of adoptability was introduced and the court failed
to consider adoptability). The fact that adoptability is not
a required element is consistent with the rule that
termination of parental rights is proper even when there is
little likelihood of adoption, if it is in the child's
best interest. McDaniel v. Ark. Dep't of Human
Servs., 2013 Ark.App. 263, at 4-5. Here, there is no
dispute that the court considered adoptability and that
evidence was presented on the issue.
sole argument is that the evidence of adoptability was
insufficient because it failed to account for K.T.'s
specific characteristics. Connors fails to cite any cases
requiring such precision and specificity, nor are we aware of
such precedent. Instead, Connors argues that this case is
akin to Grant v. Arkansas Department of Human
Services, 2010 Ark.App. 636, at 13, 378 S.W.3d 227, 233,
in which we reversed a best-interest finding that was based
solely on a caseworker's testimony that "all
children are adoptable" and failed to take into account
the child's autism. In the present case, unlike in
Grant, DHS presented specific evidence as to
K.T.'s adoptability. The caseworker testified that when
she ran the adoptability match, she selected for specific
characteristics, such as K.T.'s age, race, and status as
a member of a sibling group. Moreover, she testified about
why she did not include sexual aggression in running the
adoption match, which provided the circuit court with ample
evidence to consider whether sexual aggression should have
been included in the adoptability match.
argument also fails because the DHS caseworker explained that
she had not included sexual aggression for a very good
reason: K.T. is not sexually aggressive. The evidence
revealed that DHS had twice submitted K.T. for professional
evaluations for sexual aggression and that both evaluations
determined that he was not sexually aggressive and needed no
treatment for sexual aggression. In fact, the intake report
from Bridgeway, indicating that K.T. was not sexually
aggressive, had previously been entered into evidence at a
prior hearing without objection from Connors. As such, we see
no error on this point.
second point on appeal is that the court failed to consider
potential relative placement as an alternative to termination
when making its best-interest finding. Specifically, he
argues that his sister was interested in taking K.T. but that
the court terminated his parental rights before DHS could
determine if placement was appropriate. However, the evidence
showed that Connors's sister did not present herself to
DHS as a potential placement until after the children had
been in DHS custody for over twenty months. At the time of
the hearing, she had not completed the necessary steps for