APPEAL
FROM THE OUACHITA COUNTY CIRCUIT COURT [NO. 52JV-18-89]
HONORABLE DAVID W. TALLEY, JR., JUDGE
Dusti
Standridge, for appellant.
Callie
Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
RAYMOND R. ABRAMSON, Judge
Antwan
Davidson's parental rights to his child, M.E., were
terminated by the Ouachita County Circuit Court on January
18, 2019. Davidson now appeals the termination, challenging
the sufficiency of the evidence. We affirm.
M.E.
was five years old when she was removed from the legal and
physical custody of Davidson due to allegations of severe
malnourishment. The circuit court entered an emergency order
finding that M.E. was currently hospitalized due to extremely
high levels of sodium, severe dehydration, and
malnourishment. Prior to the probable-cause hearing, the
Arkansas Department of Human Services (DHS) filed a petition
for termination of parental rights alleging several grounds
for termination under Arkansas Code Annotated section
9-27-341(b)(3)(B) (Supp. 2017). The circuit court found
probable cause, and at the subsequent adjudication hearing,
M.E. was adjudicated dependent-neglected for many reasons,
including that her life was endangered.
At the
termination hearing on January 2, 2019, the DHS caseworker,
Pamela Ward, testified that she could not say that Davidson
would provide the supervision necessary to protect M.E. from
potential danger or harm and that DHS could not say that
Davidson is willing and able to meet M.E.'s needs for
food, clothing, shelter, and medical care. Because he had a
criminal proceeding pending, Davidson chose to invoke his
Fifth Amendment rights and did not testify at the termination
hearing.
Without
objection, DHS introduced the transcript and exhibits from
the August 15, 2018 adjudication hearing at the termination
hearing. Dr. Rachel Clingenpeel, an assistant professor of
pediatrics at the University of Arkansas for Medical Sciences
(UAMS) and the associate director of the Team for Children at
Risk at Arkansas Children's Hospital (Children's),
testified as an expert witness in child-abuse pediatrics at
the adjudication hearing. Dr. Clingenpeel indicated that M.E.
was critically ill, and her condition was life-threatening.
M.E. was severely malnourished. She was dehydrated. She had
severe electrolyte abnormalities, including hypernatremia,
which is an elevated level of sodium in the blood. She was
unable to stand without support. She was uncomfortable with
any movement. During the two weeks M.E. was a patient at
Children's, she gained roughly nine pounds.[1]
Following
the termination hearing, the circuit court terminated
Davidson's parental rights as to all alleged grounds,
including that M.E.'s life was in danger. The circuit
court also found that termination of Davidson's parental
rights was in M.E.'s best interest. This timely appeal is
now properly before this court.
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 children. Griffin v. Ark.
Dep't of Human Servs., 2017 Ark.App. 635. 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 that the juveniles
will be adopted and of the potential harm caused by returning
custody to the parent. Id. Each of these requires
proof by clear and convincing evidence, which is the degree
of proof that will produce in the finder of fact a firm
conviction regarding the allegation sought to be established.
Id.
We
review termination-of-parental-rights cases de novo, but we
will not reverse the circuit court's ruling unless its
findings are clearly erroneous. Gonzalez v. Ark.
Dep't of Human Servs., 2018 Ark.App. 425, 555 S.W.3d
915. 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. In determining whether a
finding is clearly erroneous, we have noted that in matters
involving the welfare of young children, we will give great
weight to the circuit court's personal observations.
Id.
In
determining whether termination is in the best interest of
the juvenile, the circuit court must consider the likelihood
that the juvenile will be adopted and the potential harm that
would be caused by returning the juvenile to the custody of
the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) &
(ii); Chaffin v. Ark. Dep't of Human Servs.,
2015 Ark.App. 522, 471 S.W.3d 251. Adoptability and potential
harm, however, are merely two factors to be considered and
need not be established by clear and convincing evidence.
Chaffin, 2015 Ark.App. 522, 471 S.W.3d 251. The
evidence presented on potential harm must also be viewed in a
forward-looking manner and considered in broad terms, but a
circuit court is not required to find that actual harm will
result or to affirmatively identify a potential harm.
Id.
Here,
Davidson does not challenge the statutory grounds found by
the circuit court to terminate his parental rights;
therefore, Davidson abandons any challenge to those findings
on appeal. See, e.g., Byrd v. Ark. Dep't of
Human Servs., 2019 Ark.App. 139, at 3, 572 S.W.3d 900,
902; Benedict v. Ark. Dep't of Human Servs., 96
Ark.App. 395, 409, 242 S.W.3d 305, 316–17 (2006). DHS
argues that this is significant because the undisputed
grounds also support the circuit court's best-interest
finding by demonstrating that M.E. cannot be safely placed
with Davidson and that she would be subjected to potential
harm if placed in his custody. See Miller v. Ark.
Dep't of Human Servs., 2017 Ark.App. 396, at 14, ...