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Phillips v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

November 28, 2018

MALISA PHILLIPS AND WAYNE PHILLIPS APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE MADISON COUNTY CIRCUIT COURT [NO. 44JV-16-105] HONORABLE STACEY ZIMMERMAN, JUDGE

          Lisa-Marie Norris, for appellant Wayne Phillips.

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant Malisa Phillips.

          Anna Imbeau, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          ROBERT J. GLADWIN, Judge

         In this termination-of-parental-rights case, both parents, in separate briefs, appeal the Madison County Circuit Court's order of April 16, 2018, terminating their parental rights to two children, EP (born June 3, 2001) and CP (born February 3, 2008). Both Malisa Phillips and Wayne Phillips argue that appellee Arkansas Department of Human Services (DHS) failed to prove that it made meaningful efforts to remedy their lack of housing. Malisa also contends that the circuit court erred in terminating her parental rights because there was insufficient evidence to support the grounds for termination or that termination was in the children's best interest. We affirm.

         I. Standard of Review

         We 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 (Supp. 2017); M.T. v. Ark. Dep't of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). 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 circuit 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). When determining the clearly erroneous question, the appellate court gives due deference to the opportunity of the circuit court to judge the credibility of witnesses. Dodd v. Ark. Dep't of Human Servs., 2016 Ark.App. 64, 481 S.W.3d 789. 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. Swangel v. Ark. Dep't of Human Servs., 2018 Ark.App. 197, at 3, 547 S.W.3d 111, 113.

         II. Facts

         DHS filed a petition for emergency custody and dependency-neglect (DN) alleging in the attached affidavit that AP, appellants' daughter born March 22, 1999, had been the victim of sexual abuse.[1] Officers feared for the safety of her siblings, EP and CP, and they were taken into protective custody.[2] The circuit court signed an ex parte order finding probable cause to believe the children were dependent-neglected (DN) and could not remain with their parents.

         The probable-cause order reflects that it was still in the children's best interest to remain in DHS custody because of AP's allegations of sexual abuse in the home. The circuit court also found that appellants did not have stable housing and that the children had many unexcused absences in school. The parents were granted supervised visitation and ordered to (1) cooperate with DHS; (2) attend the case-plan staffing; (3) keep DHS informed of their address and phone number; (4) refrain from using illegal drugs or alcohol; (5) obtain and maintain stable housing, employment, and a clean, safe home; (6) demonstrate the ability to protect the children; (7) maintain contact with their attorney; and (8) follow the case plan and court orders.

         By order of January 27, 2017, the court found that the goal of the case should be reunification with both parents. The court ordered that the ...


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