Cite as 2014 Ark. App. 469
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-405
JENNIE WARREN Opinion Delivered September 17, 2014
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. JV 2013-43-3]
ARKANSAS DEPARTMENT OF HONORABLE STACEY A.
HUMAN SERVICES and MINOR ZIMMERMAN, JUDGE
CHILDREN
APPELLEES AFFIRMED
ROBIN F. WYNNE, Judge
Jennie Warren appeals from the order of the circuit court terminating her parental
rights to her children, B.W.A., D.S., and I.W.1 She argues on appeal that there was not
sufficient evidence presented at the termination-of-parental-rights hearing to support the
findings made by the circuit court. We affirm.
The Arkansas Department of Human Services (DHS or the Department) exercised a
seventy-two-hour emergency hold on the children after it received a hotline call indicating
that three-month-old B.W.A. had sustained a subdural hematoma and bite marks alleged to
have been caused by appellant. A worker who visited the home saw that the children were
in dirty diapers and had dirty feet. The family had an open protective-services case at the time
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The parental rights of the children’s fathers were also terminated; however, none of
them are a party to this appeal.
Cite as 2014 Ark. App. 469
and had a previous protective-services case that was open from December 2010 until April
2011.
In March 2013, the circuit court adjudicated the children dependent-neglected based
on abuse and neglect due to inadequate supervision and “moving every few weeks to couple
of months.” In the adjudication order, the circuit court noted that when B.W.A. sustained
a subdural hematoma, appellant and the children were living with people appellant had only
known for a few weeks and that appellant entrusted them to supervise the children without
knowing their last names. The goal of the case was set as reunification with appellant. In a
review order entered on April 25, 2013, the circuit court found that B.W.A. sustained a non-
accidental brain injury as a result of being “horrifically abused” while in the custody of
appellant. Following the permanency-planning hearing, the circuit court found that appellant
was not complying with the case plan, was not making progress toward the goals in the case
plan, and was not diligently working toward reunification. The circuit court also found that
appellant had not maintained stable housing, had not maintained adequate income for herself
and the children, and had not demonstrated that she could properly parent the children and
keep them safe. According to the testimony at the permanency-planning hearing, appellant
continued to have contact with Marquis Agee, B.W.A.’s father, despite indicating that he was
previously violent toward her while she was pregnant with B.W.A. She was also pregnant
with his child at the time of the permanency-planning hearing. Based on its findings, the
circuit court changed the goal of the case to termination of parental rights and adoption.
The Department filed a petition to terminate appellant’s parental rights on November
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27, 2013. The hearing on the petition was held on February 20, 2014. Lauren Patton, the
DHS caseworker assigned to the case, testified that appellant’s income was from various forms
of government assistance, which she stated was insufficient to care for appellant and the
children. Appellant was not employed. Appellant had obtained a three-bedroom apartment
in November through assistance from the Department of Housing and Urban Development
(HUD). She had government-assisted housing previously when she lived in Star City, but
lost it after being arrested. According to Ms. Patton, appellant still had not demonstrated that
she could parent all four of her children. There was testimony that appellant’s visits with the
children were chaotic, with the children running around and stepping on and over appellant’s
youngest child, who was an infant. Appellant had canceled one visit because it was cold and
had canceled another visit because a friend was having a baby. Ms. Patton also testified that
appellant had Marquis Agee over to her apartment despite having an order of protection
against him. She also testified regarding testimony at an earlier hearing that B.W.A.’s brain
injury was “like he was dropped from the second story of a building.” According to Ms.
Patton, the children were very likely to be adopted.
Appellant testified that she had a job cleaning buildings that paid $500 per month, in
cash. Appellant also had an application for disability pending. She had been attempting to
obtain disability benefits since age sixteen. Appellant also testified that she believed she had
stable housing because she had been in her current apartment for four months. Appellant
stated that she still believed that the protective order against Marquis Agee was necessary
because she does not feel safe around him due to the fact that he beat her when she was
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pregnant with B.W.A. She admitted that she became pregnant by Agee again after this
happened.
On February 20, 2014, the circuit court entered an order granting the petition to
terminate appellant’s parental rights. This appeal followed.
In order to terminate parental rights, a circuit court must find by clear and convincing
evidence that the petitioner has proved at least one statutory ground for termination and that
termination is in the child’s best interest, considering the adoptability of the child and the
potential harm to the child were he or she to be returned to the parent. Ark. Code Ann. §
9-27-341(b)(3) (Supp. 2013). Only two of the grounds that were found by the circuit court
were pled by DHS in the petition and, as such, will be the only grounds considered for the
purposes of this appeal. Those grounds were: (1) that other factors or issues arose subsequent
to the filing of the original petition for dependency-neglect that demonstrate that placement
of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or
welfare and that, despite the offer of appropriate family services, the parent has manifested the
incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s
circumstances that prevent the placement of the juvenile in the custody of the parent, Ark.
Code Ann. § 9-27-341(b)(3)(B)(vii)(a) and (2) the parent is found by a court of competent
jurisdiction, including the juvenile division of circuit court, to have subjected any juvenile to
aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A). The circuit court
also found that the children were adoptable and that they would be subjected to potential
harm if returned to appellant because she had not demonstrated the ability to parent the
children and was not stable.
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This court has set out the standard of review in termination-of-parental-rights cases as
follows:
The rights of natural parents are not to be passed over lightly; however, parental
rights will not be enforced to the detriment or destruction of the health and well being
of the child. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).
A trial court’s order terminating parental rights must be based on findings proven by
clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2013);
Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and
convincing evidence is defined as that degree of proof that will produce in the fact-
finder a firm conviction as to the allegation sought to be established. Dinkins, supra.
On appeal, the appellate court will not reverse the trial court’s ruling unless its findings
are clearly erroneous. Id. 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, an appellate court gives due deference to the opportunity
of the trial court to judge the credibility of witnesses. Id.
Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 791, at 8–9, 387 S.W.3d 311, 316.
With regard to the circuit court’s finding that DHS proved that she had subjected any
juvenile to aggravated circumstances, appellant argues that the circuit court did not indicate
which evidence it relied upon and erroneously expanded its findings. “Aggravated
circumstances” means a juvenile has been abandoned, chronically abused, subjected to
extreme or repeated cruelty, sexually abused, or a determination has been or is made by a
judge that there is little likelihood that services to the family will result in successful
reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) (Supp. 2013). In the
termination order, the circuit court found that the “aggravated circumstances” ground had
been proved because B.W.A. sustained a subdural hematoma, bruising, and bite marks while
in appellant’s custody. In the April 25, 2013 review order, the circuit court found that
B.W.A. was subjected to “horrific” abuse while in appellant’s custody that resulted in him
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sustaining a subdural hematoma. That review order was made a part of the record at the
termination hearing and there was testimony regarding B.W.A.’s brain injury at the hearing.
Although the circuit court referenced bruising and bite marks in the termination order that
were mentioned in the affidavit submitted in support of the petition for emergency custody
but were not supported by any evidence at the termination hearing, evidence of the brain
injury sustained by B.W.A. was part of the record. The circuit court’s finding that the
Department proved that appellant had subjected a juvenile to aggravated circumstances is not
clearly erroneous.
Appellant argues that the circuit court erred by finding that the Department had
proved the “subsequent factors” ground because she testified at the hearing that she had
attempted to contact her caseworker weekly, that she had maintained appropriate housing for
the prior four months, that she had applied for disability and had a job paying $500 per
month, and that she could care for all of the children. We hold that the circuit court’s finding
that this ground was proved is not clearly erroneous. Appellant was ordered to maintain stable
employment. She had been employed for only a short time while the children were in the
Department’s custody. She had applied for disability, but according to her own testimony,
she had been attempting to obtain it for years without success. Appellant did have appropriate
housing at the time of the hearing, but had only had the housing for a short time and had lost
similar housing in the past due to criminal activity. She also continued to associate with a
man who she claimed beat her while she was pregnant, and she became pregnant by him
again.
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Also, the children were taken into custody after B.W.A. sustained a significant injury
that the circuit court attributed to abuse while he was in appellant’s custody, and appellant had
not shown an ability to care for all the children in order to keep them safe. Appellant
responds to this by pointing out that she was determined to be a fit parent to her youngest
child, who was born after her three older children had been removed. However, that child
was never a part of this case, and her fitness to parent that child was not before the circuit
court. What was before the circuit court was appellant’s ability to care for the three children
taken into DHS’s care. The circuit court determined that she could not do so, and that
determination was not in error based on the evidence presented.
We also hold that the circuit court’s finding that termination was in the children’s best
interest is not clearly erroneous. There was testimony that the children were adoptable.
There was evidence that appellant lacked sufficient income to meet the children’s needs and
that over a year of services had not rendered her capable of caring for the three children who
had been taken into custody. Given that the children were taken into care as a result of a
serious non-accidental injury to one of them, this evidence is sufficient to establish potential
harm.
Finally, appellant argues that DHS failed to make reasonable efforts at reunification.
This argument was never made to the circuit court. We have held that even in termination
cases, we will not address issues raised for the first time on appeal. McElroy v. Ark. Dep’t of
Human Servs., 2014 Ark. App. 117, 432 S.W.3d 109. Therefore, this issue is not preserved
for review on appeal.
Affirmed.
HARRISON and GLOVER, JJ., agree.
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Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect
Appellate Division, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor children.
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