Basham v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 232

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-15

ASHLEY BASHAM Opinion Delivered April 27, 2016
APPELLANT
APPEAL FROM THE MILLER
COUNTY CIRCUIT COURT
V. [NO. 46JV-13-131-2]

HONORABLE BRENT HALTOM,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILD AFFIRMED
APPELLEES

PHILLIP T. WHITEAKER, Judge

Appellant Ashley Basham appeals from the October 13, 2015 order of the Miller

County Circuit Court terminating her parental rights to her son, D.B.1 Her sole argument

on appeal is a challenge to the sufficiency of the evidence supporting the trial court’s finding

of potential harm. We affirm.

The relevant facts are these. On June 28, 2013, the Arkansas Department of Human

Services (DHS) took emergency custody of four-year-old D.B. after the Arkansas State Police

executed a search warrant on the home of D.B.’s father, Charles Basham. Charles was

arrested after admitting methamphetamine use and testing positive for methamphetamine and

1
This is the second time this case has been before us. In the previous case, we
reversed the decision terminating Ashley’s parental rights because the trial court failed to
determine whether she was indigent and entitled to the appointment of counsel in violation
of Arkansas Code Annotated section 9-27-316(h)(1)(D) (Repl. 2015). Basham v. Ark. Dep’t
of Human Servs., 2015 Ark. App. 243, 459 S.W.3d 824.
Cite as 2016 Ark. App. 232

opiates.2 Ashley was not present because she was incarcerated in Texas at the time the warrant

was executed. While executing the warrant, the state police observed that D.B. and another

child were present in the home where methamphetamine and a firearm were discovered.

Additionally, the home was in disarray, there was limited food, and there was no working

toilet.

Based on the conditions of the home and the incarceration of the parents, D.B. was

subsequently adjudicated dependent-neglected. Because Ashley was incarcerated, she was not

present at the adjudication hearing. Ashley, who had recently been released from custody,

did make an appearance at a November 2013 review hearing. However, Ashley was not

present at the next review hearing in February 2014.3 Eventually, DHS sought to terminate

the rights of both Charles and Ashley. The trial court ultimately granted the petition. Ashley

appealed, and this court reversed, finding that she was entitled to, but had not been appointed,

counsel and remanded the matter for further proceedings.

On remand, DHS again filed a petition to terminate Ashley’s parental rights. After

hearing all the evidence, the trial court entered an order terminating Ashley’s parental rights.

The trial court found that statutory grounds for termination existed and that it was in the best

interest of the child to terminate Ashley’s parental rights. In doing so, the court found that

Ashley’s testimony was not credible, that the adoption specialist’s testimony as to adoptability

2
Charles remained incarcerated throughout the pendency of the case, and his rights
were ultimately terminated. The termination was upheld by this court in Basham v. Ark. Dep’t
of Human Servs., supra. He is not a party to this appeal.
3
Ashley was once again not present due to incarceration.

2
Cite as 2016 Ark. App. 232

was credible, and that Ashley’s continuous bad decisions had placed D.B. at a risk of potential

harm if he were returned to her. Ashley appeals this termination decision.

Termination-of-parental-rights cases are reviewed de novo. Fenstermacher v. Ark. Dep’t

of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483. A trial court’s termination of parental

rights must be based on factual findings proven by clear and convincing evidence. Ullom v.

Ark. Dep’t of Human Servs., 67 Ark. App. 77, 992 S.W.2d 813 (1999). We will not reverse a

trial court’s ruling as to termination unless it is clearly erroneous. Brewer v. Ark. Dep’t of

Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). Under Arkansas law, in order to

terminate parental rights, a trial court must find both that at least one statutory ground for

termination has been established and that termination would be in the child’s best interest.

Meriweather v. Ark. Dep’t of Human Servs., 98 Ark. App. 328, 332, 255 S.W.3d 505, 507

(2007). In determining the best interest of the child, the court must take into consideration

the likelihood of adoption and the potential harm to the health and safety of the child that

would be caused by return to custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).

On appeal, Ashley challenges only the trial court’s finding of potential harm. Ashley

contends that her actions were not the cause of D.B.’s removal from the home. She admits

that she was absent due to incarceration; however, she asserts that, while incarcerated, she

completed numerous classes to improve her parenting skills and ability to care for D.B. Also,

she highlights that when she was not incarcerated for a period of time, she was able to

maintain appropriate housing and employment, pass random drug screens, and visit with D.B.

There was no evidence that any of her visits with D.B. were inappropriate. In fact, she

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Cite as 2016 Ark. App. 232

contends that, other than her absence due to incarceration, DHS presented no evidence that

she was ever an inappropriate parent to D.B. Consequently, she argues that the evidence does

not support the court’s conclusion of potential harm.

In considering potential harm caused by returning the child to the parent, the trial

court is not required to find that actual harm would result or affirmatively identify a potential

harm. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential

harm must be viewed in a forward-looking manner and in broad terms, including the harm

the child suffers from the lack of stable, permanent home. Collins v. Ark. Dep’t of Human

Servs., 2013 Ark. App. 90.

Here, the evidence revealed that at the time of the hearing, Ashley had been

incarcerated for approximately one-third of the child’s life. Her own testimony proves that

she was currently incarcerated for prescription fraud, that she had previously been released for

a short period of time but, because of the stress of everything, she ended up back in prison,

and that her ultimate release date was not until 2018. At that time, she will have been

incarcerated for approximately one-half of the child’s life. The intent of our termination

statute is to provide permanency in a juvenile’s life in all circumstances where return to the

family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the

evidence that return to the family home cannot be accomplished in a reasonable period of

time as viewed from the juvenile’s perspective. Ark. Code Ann. § 9-27-341(a)(3). Looking

at the testimony overall, the potential harm to the child if parental rights were not terminated

is clear: the child could conceivably remain in DHS’s custody for up to three years waiting

4
Cite as 2016 Ark. App. 232

for Ashley to be released from incarceration and to satisfactorily complete the case plan. D.B.,

who has already been in DHS’s custody for over two years, would be required to linger in

limbo until Ashley is released from jail and gets her act together. This kind of wait-and-see

is the definition of the instability that the termination statute is intended to protect children

from. Hamman v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295, at 11, 435 S.W.3d 495,

502.

Furthermore, the record reflects that Ashley failed to adequately keep in contact with

the child and made no real effort to maintain a significant parent-child relationship with the

child. While Ashley claimed that she sent gifts and cards to the child through her mother,

there is no evidence that she made any further effort to contact DHS or ensure that the items

were delivered to the child. Moreover, the trial court did not find her testimony to be

credible. This evidence of potential harm, combined with the child’s adoptability, supports

the circuit court’s ruling that termination of Ashley’s parental rights was in the child’s best

interest.

Affirmed.

ABRAMSON and HOOFMAN, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Jerald A. Sharum, County Legal Operations, for appellee.

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