Cite as 2017 Ark. App. 475
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-328
MAX MCKINNEY, SR. Opinion Delivered: September 20, 2017
APPELLANT
APPEAL FROM THE CRAIGHEAD
V. COUNTY CIRCUIT COURT,
WESTERN DIVISION
ARKANSAS DEPARTMENT OF [NO. 16JV-15-410]
HUMAN SERVICES AND MINOR
CHILDREN HONORABLE CINDY THYER, JUDGE
APPELLEES
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s termination of his parental rights to B.M.,
born 2/18/02; and A.M., born 10/5/12, in its January 25, 2017 order. 1 Because the circuit
court’s findings supporting termination are not clearly erroneous, we affirm.
I. Facts
An emergency hold was taken on B.M. and A.M. on November 10, 2015, by order
of the circuit court, due to allegations involving inadequate supervision due to drug use by
1
The parental rights of the children’s mother, Natasha Furnish, were terminated
separately in an order entered on November 8, 2016. Her appeal to this court was affirmed
in Furnish v. Arkansas Department of Human Services, 2017 Ark. App. 278, vacated, 2017 Ark.
240 (ordering this court to enter a full opinion pursuant to Brookshire Grocery Co. v. Morgan,
2017 Ark. 221 (per curiam) (overruling In re Memorandum Opinions, 16 Ark. App. 301, 700
S.W.2d 63 (1985) (per curiam))).
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the children’s mother, Natasha Furnish, and appellant. 2 Appellant tested positive for
methamphetamine.
Appellee Department of Human Services (DHS) filed a petition for emergency
custody and dependency-neglect on November 15, 2015. The circuit court entered an ex
parte order for emergency custody on the same date. A probable-cause order was entered
on November 16, 2015, in which the circuit court found that there was probable cause that
emergency conditions existed which necessitated removal of the children from the “custody
of their mother” and continued to exist, thereby necessitating that the children remain in
the custody of DHS. It found appellant to be the legal and biological father of B.M. and
A.M. Appellant was ordered to comply with a list of standard orders.
The children were adjudicated dependent-neglected on account of “[p]arental
unfitness due to drug use of the mother” in the circuit court’s adjudication order entered
on December 11, 2015. However, the circuit court found that appellant “did contribute to
the dependency-neglect of the herein juvenile, [sic] specifically, [he] tested positive for
Methamphetamine[,]” that appellant was not a fit parent for purposes of custody, and that
the children could not be safely placed with appellant. It explicitly stated that appellant must
follow the case plan and court orders. The goal of the case was reunification with a
concurrent plan of relative placement, permanency, and adoption.
2
Two siblings of B.M. and A.M.—R.M., born 5/24/98, and C.M., born 7/20/15—
were removed pursuant to the same order. R.M. reached the age of majority and appellant
was found not to be the father of C.M.; accordingly, he does not seek custody of either in
this appeal. Another child—M.M., born 9/8/16—was taken into custody on September 8,
2016, pursuant to the circuit court’s ex parte order following a petition for emergency
custody and dependency-neglect from DHS. The matter of M.M. is not before this court.
2
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A review order was entered on May 6, 2016, in which the circuit court stated that
appellant had participated in the case by visiting the children on a regular basis, submitting
to random drug screens, submitting to a drug-and-alcohol assessment, and by “very partial”
[sic] cooperating with DHS and complying with the case and all court orders. It also stated
that appellant had not participated in and completed parenting classes; remained drug free,
testing positive most recently for THC on March 23, 2016; obtained and maintained clean,
safe, and stable housing, with utilities turned on; obtained and maintained stable
employment; or prepared and submitted a budget indicating sufficient income. Finally, it
stated that appellant had started “the 12-out-patient drug sessions, completing 4 so far” while
noting that appellant “needs to consider whether outpatient is sufficient or whether [he]
needs more treatment.”
A review hearing was held on July 27, 2016; appellant did not appear. A review
order was entered on July 28, 2016, in which the circuit court stated that appellant had only
participated in the case plan by viewing “The Clock is Ticking” video and submitting to a
drug-and-alcohol assessment. It found that appellant had not participated in the case with
regard to any of its other orders, specifically noting that appellant stated he had taken
methamphetamine on July 8, 2016; appellant had been incarcerated from May to July 2016,
with an arrest warrant for him in Cleburne County; and appellant had had “[n]o contact
since July 8, 2016.” In each review order, the circuit court found that DHS had made
reasonable efforts to provide family services and the case plan remained the same.
DHS filed its petition for termination of appellant’s parental rights on September 9,
2016. It alleged that termination of appellant’s parental rights was in the children’s best
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interest, taking into consideration the likelihood that the they would be adopted if the
termination petition was granted and that there was the potential harm to their health and
safety caused by returning them to the custody of the appellant. 3 DHS alleged the following
grounds against appellant pursuant to Arkansas Code Annotated section 9-27-341:
1. That appellant had abandoned the children, specifically noting that appellant had
failed to visit them since June 2016, had several active warrants for his arrest, and
had several criminal charges; 4 and
2. That, subsequent to the filing of the original petition for dependency-neglect,
other factors or issues arose 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, specifically noting that appellant did not compete
rehab, was still using illegal drugs, and had several active criminal warrants and
charges, including an assault on a woman at St. Bernards Hospital. 5
A hearing on DHS’s termination petition was held on January 5 and 12, 2017.
Appellant was initially in court, according to his attorney, but he left and did not return. At
the beginning of the hearing, appellant’s attorney argued that a permanency-planning
hearing should be held before a termination-of-parental-rights (TPR) hearing on DHS’s
petition. Given that B.M. had been placed with a married, paternal aunt in North Dakota,
appellant moved that the home study of the aunt be considered for placement of A.M. 6
3
Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Repl. 2015).
4
Ark. Code Ann. § 9-27-341(b)(3)(B)(iv).
5
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
6
Appellant failed to notice a hearing or request a special hearing on his “Motion for
Considered Placement.” Appellant’s motion was made orally on the day of the hearing.
4
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Noting that Arkansas Code Annotated section 9-27-341(b)(1)(B) states that a
permanency-planning hearing is not a prerequisite to filing a TPR petition or to a circuit
court hearing the same, the circuit court found that it “[did] not believe that there had been
an error or a significant omission in not having a Permanency Planning Hearing because the
Department was entitled to file a Petition for Termination of Parental Rights according to
that Statute without a Permanency Planning Hearing having been held.” Finding it to be
“premature for the Court to consider a hearing about the placement of the children when
the Court has not decided as to whether Mr. McKinney does or does not have parental
rights to these children intact[,]” the circuit court found it appropriate to proceed with the
TPR hearing, which followed immediately thereafter.
Tina Green, foster-care worker and the latest caseworker assigned to the case, 7
testified that appellant missed his initial drug-and-alcohol assessment, though he completed
the rescheduled assessment. He was recommended for outpatient treatment but failed to
complete treatment; he was discharged for noncompliance after four sessions. He eventually
completed another drug-and-alcohol assessment on December 30, 2016, which
recommended a 21-day inpatient program. He was currently in an inpatient rehab as of
January 3, 2017, which he was scheduled to complete on or around January 24, 2017; he
had left another rehab—Project New Start—voluntarily on November 21, 2016.
Green testified that there were periods where appellant was not in contact with DHS,
leaving it with no ability to drug screen him. The longest period was approximately seven
7
There were at least three caseworkers assigned throughout the duration of the case.
5
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months, during which DHS had only two drug screens for appellant, the latest being on
January 3, 2017, when he tested positive for “methamphetamine, MPA, and oxy.” Green
did not believe appellant’s drug issue had been “rectified satisfactorily.” She opined that “at
least six months of some sort of sobriety” would have been helpful; “a minimum of three”
months.
Green testified that appellant did not have stable housing, as he was living with
relatives in Mississippi, and she had not been able to check the home for appropriateness.
Appellant never asked for services to be provided in Mississippi, stating that he was willing
to travel to Jonesboro to complete the services if DHS set them up; he did not tell her that
he was completing parenting classes or any other services in Mississippi. Green had provided
appellant with the information for parenting classes, but he had not provided proof of
completion. Appellant had provided no proof of employment or income, and though he
had been complying with visitation, it had not been consistent due to his different rehab
entries and periods of incarceration.
Appellant had told Green that he and Furnish were still married and living together
in December 2016; appellant had not told her that their relationship status had changed.
Appellant brought Furnish to his January 3, 2017 visit with the children though she
remained in the car; Green saw that as evidence that the two “remained together.” 8 Green
had concerns with appellant’s continued relationship with Furnish, whom she described as
unstable as well because “she had admitted out of her own mouth” that she still had current
8
Green acknowledged that while appellant was currently in inpatient rehab at
NEARCC in Jonesboro, Furnish was in rehab at the Quapaw House in Hot Springs.
6
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drug-use issues, and the circuit court had terminated her parental rights to the children, a
decision after which appellant married her.
Green believed termination to be in the children’s best interest based upon appellant’s
“instability, the current drug use”; his lack of proof of income; his noncompliance with
court orders; and his lack of adequate housing. She believed the above-referenced factors
posed a danger to the children and believed the children were adoptable—even if there
were currently no families interested—though she testified that there were currently families
interested in adopting the children.
Gretchen Lackey, the caseworker immediately preceding Green from March 2016,
testified by phone. 9 She stated that appellant had at least three visits prior to being arrested
on May 24, 2016, and that she received a certified letter that appellant had gone to rehab in
North Dakota. She had a meeting with appellant, while visiting Furnish who was pregnant
at the time, but did not have a drug screen during that meeting because appellant stated he
would fail for methamphetamine. 10 She had no direct contact with appellant from that
conversation until she left on September 23, 2016, and he had no visits with the children
between his May 24, 2016 arrest and when she left. She also stated that appellant had been
made aware of parenting classes as of the July 27, 2016 order, which stated that he had not
completed classes, but he was not in contact with her “at one point” in the case, so she did
not know if he completed parenting classes.
9
Lackey had left the employ of DHS.
10
No date was given for this meeting, only that it was after appellant’s arrest on May
24, 2016.
7
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Where not duplicative of other testimony, appellant testified that he owed about
$4,000 total in fines between Cleburne and Craighead Counties and had payment
arrangements on both fines, neither of which was in good standing. He said he went to
rehab in North Dakota on July 19, 2016, and returned on August 23, 2016, when he left
rehab after M.M. was born prematurely. He asserted that he had been in Arkansas since
M.M.’s birth, though he later testified that he was in Mississippi between August 24, 2016,
and September 14, 2016. When he returned to Arkansas, he started the Project New Start
rehab, but quit at the end of November because he alleged that they had him working
without providing any services; he has been in Mississippi since he quit Project New Start
and considers it home. He planned to complete a 12-week outpatient program after his
current program. He claimed to have participated in parenting classes, but admitted that he
had provided no proof to DHS.
Appellant testified to being incarcerated for two days in April 2016; from May 24,
2016, to June 29, 2016; and from September 14, 2016, to October 14, 2016. He denied
having any arrests or having returned to jail since his October 14, 2016 release. He currently
had arrest warrants and had been told to turn himself in when he completed rehab; he did
not turn himself in between leaving rehab in November and starting a new program in
January because he had not completed rehab.
Appellant asserted that he was last employed two weeks prior to the hearing, working
for his father-in-law; he admitted providing no proof of employment. Though he worked
for one month, he did not use any of the income to pay his fines. He asserted that he used
8
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some of the money toward rehab, though he admitted that he did not have to pay for the
rehab he was currently in.
Appellant asserted that “the problem that [he’d] had since this case began [had] been
[his] drug use” and he “[hadn’t] been able to get that under control.” He missed visitation
between May 24, 2016, and September 2016 not “for no reason” as he wanted to visit his
children, but because “[i]t was just the situations [he] got [himself] in prohibited that.”
Regarding his October 24, 2016, post-termination-of-her-rights marriage to
Furnish, appellant stated that Project New Start was the only program—a six-month
inpatient program—that would accept him without insurance, but he could not go there
while Furnish was a patient unless they were married, so he married her. He admitted that
he was not asking the court to place the children with him at that time as he wanted to
complete rehab since he had “never had the tools to utilize to be able to stay sober[.]” He
was asking the court to place the children with his sister. He felt like “six months would be
a good time” for him to get it together. Appellant admitted that he had had a drug problem
for fifteen years. When asked what efforts he had taken to enter a rehab or some sort of
counseling, appellant maintained that he had had a “three-and-a-half-years sobriety” from
2008 to 2010 when he worked for a fire department. He went on to maintain that he did
not start back using until 2012 and admitted that he did not seek rehab or try to maintain
his sobriety; he “didn’t realize that [he] had a problem” because he was able to provide for
his children, kept a job, and took care of his “everyday responsibilities.”
The court bailiff then testified to contacting dispatch and learning that appellant had
four failure-to-appear warrants and three contempt-of-court warrants in Jonesboro. He and
9
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a warrants officer from the Jonesboro Police Department discussed appellant’s situation with
appellant. The officer told appellant to contact him after he finished rehab on January 23,
2017. 11
Following the bailiff’s testimony, appellant moved to dismiss the petition due to lack
of sufficiency of evidence to support either ground asserted by DHS. The circuit court
granted the motion on the abandonment ground, noting that the appellant had visited the
children since the petition, as testified to by Green. The motion was denied as to the other
subsequent-factors ground.
Appellant’s sister, Jennifer Alber, testified by phone to having B.M., who had no
concerns that she knew of, and wanting A.M. From February 2015 to July 2015 when
appellant was incarcerated and Furnish was not allowed to have the children in her care,
B.M. and A.M. had lived with Alber under a guardianship. Her guardianship ended right
after appellant got out of jail. She asserted that she had talked to DHS “for over a year”
about getting custody of the children, but there were three different caseworkers. If she
received custody, as far as their interaction with appellant, she “will do whatever the Court
asks [her] to do.” She was willing to follow any safety plan put in place regarding B.M. She
stated that appellant had “always had an issue on and off” with drugs, but it was not her
understanding when she got the guardianship that Furnish had an issue with drugs.
Additionally, the circuit court sought testimony regarding a delinquency charge
against B.M., which was implicitly spoken about. Testimony revealed that the charge was
11
This was in response to appellant’s advisement that he would be kicked out of rehab
and have to start over if he turned himself in on his warrants.
10
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unsubstantiated and converted to a FINS petition, but B.M. was required to go through
sex-offender-specific counseling. The allegation arose after the children entered care; A.M.
was the alleged victim. Alber testified she did not know about the court-ordered therapy
and so B.M. had not completed it. B.M.’s counsel, Ms. Jones, 12 testified that this deal was
made to keep B.M. from being labeled as a sex offender, thereby limiting their options for
placement. Accordingly, B.M. does not have a delinquency finding against her. Jones could
not recall if there were any restrictions on B.M.’s being placed with younger children. 13 But
given that B.M. had not undergone the court-ordered therapy, Jones admitted that it would
cause her concern about placing B.M. in a home with other younger children, particularly
the alleged victim in the matter. Jones advised that the reason for placing B.M. in the therapy
was to have a professional weigh in on the risk and on whether any restrictions need to be
placed on B.M. 14
Appellant then renewed his motion to dismiss; it was denied. The ad litem then
recommended that appellant’s rights to the children be terminated. The circuit court orally
granted DHS’s petition and made a number of findings, specifically noting with regard to
the other-subsequent-factors ground, the following:
I want to point out that Mr. McKinney has an ongoing drug issue that although was
not a basis for a specific dependency-neglect finding in the Adjudication Order, it
was recognized in the Adjudication Hearing that he had tested positive for
12
B.M.’s counsel was identified only as Ms. Jones; no first name was given. She
happened to be in court for another matter.
13
There was sufficient evidence to move forward on a delinquency finding, but Ms.
Jones “begged” the juvenile department not to do so, and they did not.
14
Alber had two sons in her home, 11 and 16 years, at the time of the hearing. She
also has a four-month-old granddaughter.
11
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methamphetamines. The Court finds that there’s a difference between a positive test
for methamphetamines and an ongoing issue. I think as this case has progressed the
extent of Mr. McKinney’s drug use has become better known. Also, after the initial
Petition in this case was filed, Mr. McKinney had ongoing legal issues which
manifested itself with an arrest in April for a couple of days incarceration. There was
an incarceration in May and June, 2016, and another incarceration in the fall.
It also stated, referring to the implication that the children could be cared for long-term by
Alber, that:
The paternal aunt to these children has had one of the children, B.M., for one month.
There has been reference to a home study that I have not seen. There is no indication
by this aunt that she would be willing to adopt the children and we know how
important that permanency is. It would be speculative for me to assume so. I gather
from the responses to the questions of the aunt that she is not aware of the issues that
not only could impact B.M. if her siblings were placed there and impact those
siblings, but it could also impact the safety and the wellbeing of the aunt’s own
children. My fear is that there has been insufficient discussion for her to even know
what those issues are. I am deeply troubled by the representation that a delinquency
adjudication was avoided in order to facilitate the placement of a teenage child with
a family member and also that sex-offender specific treatment would not have been
ordered for B.M. unless it was needed. Not only must this Court consider the safety
of the potential offending child but also the safety of other children as well.
Going forward, all of these issues must be fully explored with sufficient proof
that meets best evidence standards, so that the Court is not considering long term
placement of these children while blindfolded. I’m also directing the Department if
the safety of young children is demonstrated to be an issue after a much more
extensive development of these issues to discuss this case completely with a paternal
aunt so she is aware and may make informed decisions about her future role, if any,
in this case.
The circuit court entered an amended order terminating appellant’s parental rights on
February 3, 2017, stating the following in support of the other-subsequent-factors ground:
Following the dependency-neglect finding, the full extent of the father Max
McKinney’s drug issues were discovered. He did not complete rehab and is still using
illegal drugs. He tested positive for methamphetamine on January 3, 2017. Mr.
McKinney testified that he has not considered himself to be sober since 2011 when
he was in prison. Mr. McKinney has ongoing legal issues. He was incarcerated in
April 2016, had another arrest and incarceration in May-June 2016, and a subsequent
arrest and incarceration in September-October 2016. He has unpaid fines of
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approximately $2000 in each Craighead County and Cleburne County in Arkansas.
There are also seven current arrest warrants out on him. During the periods when
he was not in jail he did not take advantage of rehab services or visit with his children.
In addition, the mother, Natasha Furnish McKinney, had her parental rights to these
juveniles terminated on October 11, 2016. Mr. McKinney has since married the
mother; and is in an active relationship with her. 15
In finding that the children were adoptable and that there was potential harm to the health
and safety of the children if returned to appellant, the circuit specifically noted that it
considered the testimony of Tina Green, which it found to be credible and demonstrative
of the potential harm to the children if returned to appellant. This timely appeal followed.
II. Standard of Review
In ordering that parental rights be terminated, the circuit court must make two
findings by clear and convincing evidence: at least one statutory ground must exist, and
termination must be in the child’s best interest. 16 In making a “best interest” determination,
the circuit court must consider two factors: the likelihood that the child will be adopted and
the potential harm to the child if custody is returned to a parent. 17 Clear and convincing
evidence is such a degree of proof that produces in the fact-finder a firm conviction
regarding the allegation to be established. 18 When the burden of proving a disputed fact is
15
The original order terminating appellant’s parental rights was entered on January
25, 2017.
16
Hamilton v. Ark. Dep’t of Human Servs., 2016 Ark. App. 420, at 1, 501 S.W.3d 406,
408 (citing Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015)).
17
Id., at 1–2, 501 S.W.3d at 408 (citing Ark. Code Ann. § 9-27-341(b)(3)(A)).
18
Id., at 2, 501 S.W.3d at 408 (citing Harbin v. Ark. Dep’t of Human Servs., 2014 Ark.
App. 715, 451 S.W.3d 231).
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by clear and convincing evidence, the appellate inquiry is whether the circuit court’s finding
that the disputed fact was proved by clear and convincing evidence is clearly erroneous. 19 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. 20 In resolving the clearly erroneous question, the reviewing court defers to the
circuit court because of its superior opportunity to observe the parties and to judge the
credibility of witnesses. 21 Our review of a termination of parental rights is de novo. 22
III. Permanency-Planning Hearing
Appellant’s first argument on appeal is that the circuit court’s failure to hold a
permanency-planning hearing is reversible error. Arkansas Code Annotated section
9-27-341 states that the circuit court “may consider a petition to terminate parental rights
if the court finds that there is an appropriate permanency placement plan for the juvenile” 23
and that “[t]his section does not require that a permanency planning hearing be held as a
prerequisite to the filing of a petition to terminate parental rights or as a prerequisite to the
court’s considering a petition to terminate parental rights.” 24 Accordingly, appellant argues
19
Houseman v. Ark. Dep’t of Human Servs., 2016 Ark. App. 227, at 2, 491 S.W.3d
153, 155 (citing Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, at 2).
20
Id., at 2–3, 491 S.W.3d at 155.
21
Id. (citing Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. 356, at 7; Dinkins v.
Ark. Dep’t of Human Servs., 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001)).
22
Hamilton, 2016 Ark. App. 420, at 2, 501 S.W.3d at 408 (citing Harbin).
23
Ark. Code Ann. § 9-27-341(b)(1)(A).
24
Ark. Code Ann. § 9-27-341(b)(1)(A).
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that “nowhere in § 9-27-341 does it indicate that the filing of the Petition for Termination
tolls or eliminates the requirements for a Permanency Planning hearing.” This court agrees.
Arkansas Code Annotated section 9-27-338 states that “[a] permanency planning
hearing shall be held to finalize a permanency plan for the juvenile.” 25 The use of the word
“shall” in a statute means that the legislature intended mandatory compliance with the
statute unless such an interpretation would lead to an absurdity. 26 While counsel for the
minor children is correct that a TPR petition may be filed and considered prior to a
permanency-planning hearing, 27 there is nothing in Arkansas Code Annotated sections 9-
27-341 or 9-27-338 that permits the circuit court to abdicate its duty to hold a permanency-
planning hearing altogether.
This court cannot agree with DHS’s argument that the circuit court did not rule that
it “did not have to hold a permanency hearing at all[,]” only that it “did not have to hold a
permanency-planning hearing before terminating parental rights.” By choosing to hold a
TPR hearing before a permanency-planning hearing, the circuit court necessarily placed
itself in a position of determining whether a permanency-planning hearing is required,
contrary to the mandatory language of the statutes involved. This court agrees with appellant
25
Ark. Code Ann. § 9-27-338(a)(1) (Repl. 2015) (emphasis added).
26
Walters v. Ark. Dep’t of Human Servs., 77 Ark. App. 191, 195, 72 S.W.3d 533, 535
(2002) (citing Ramirez v. White Cty. Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001));
see K.D. v. Ark. Dep’t of Human Servs., 2015 Ark. App. 75, at 5, 454 S.W.3d 799, 802 (‘In
statutes, “shall” almost always means “must.”’)).
27
See Ark. Code Ann. § 9-27-338(b)(A).
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that the circuit court clearly erred in failing to hold a permanency-planning hearing. This
court does not address whether the permanency-planning hearing must be held within
twelve months because no permanency-planning hearing was held at all, thereby making
the required timing irrelevant in this case.
Despite our agreement with appellant that the circuit court clearly erred in failing to
hold a permanency-planning hearing, this court agrees with DHS that there is no express
remedy for such a failure in the juvenile code. When the legislature has not seen fit to
fashion a remedy, it is not the province of the court of appeals to do so. Termination of
parental rights is an extreme remedy and in derogation of the natural rights of the parents. 28
Parental rights, however, will not be enforced to the detriment or destruction of the health
and well-being of the child. 29 The intent behind the termination-of-parental-rights statute
is to provide permanency in a child’s life when it is not possible to return the child to the
family home because it is contrary to the child’s health, safety, or welfare, and return to the
family home cannot be accomplished in a reasonable period of time as viewed from the
child’s perspective. 30 Termination cases are unique civil cases because time is viewed from
the juvenile’s perspective and the best interests of the children take precedence at every stage
28
Sanford v. Ark. Dep’t of Human Servs., 2015 Ark. App. 578, at 8, 474 S.W.3d 503,
508 (citing Osborne v. Ark. Dep’t of Human Servs., 98 Ark. App. 129, 133, 252 S.W.3d 138,
141 (2007)).
29
Id.
30
Id. (citing Ark. Code Ann. § 9-27-941(a)(3)).
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of the proceedings. 31 To reverse and remand would be perfunctory in purpose, given the
record before this court, and from a time perspective, would be contrary to the best interests
of B.M. and A.M., who have already been out of the home for twenty-one months.
IV. Ground for Termination – Other Subsequent Factors
Appellant’s two-paragraph argument asserting that his drug use was not a subsequent
factor is filled with conclusory statements and no legal analysis or authority. When a party
cites no authority or convincing argument on an issue, and the result is not apparent without
further research, the appellate court will not address the issue. 32 However, this court notes
that while appellant is correct that his drug use is not a subsequent factor, 33 there was
sufficient evidence of other subsequent factors that were unrelated to his drug use, including
criminal charges, periods of incarceration, and marrying Furnish after her rights to the
children had been terminated.
31
Burkett v. Ark. Dep’t of Human Servs., 2016 Ark. App. 570, at 5, 507 S.W.3d 530,
534 (citing Ark. Code Ann. § 9-27-341(a)(3) & Ark. Code Ann. § 9-27-102 (Repl. 2015)).
32
Todd v. Ark. Dep’t of Human Servs., 85 Ark. App. 174, 185, 151 S.W.3d 315, 323
(2004) (citing Webber v. Ark. Dep’t of Human Servs., 334 Ark. 527, 975 S.W.2d 829 (1998);
Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998)).
33
Bell v. Ark. Dep’t of Human Servs., 2016 Ark. App. 113, at 4, 484 S.W.3d 704, 707
(The “[subsequent factors ground] requires that subsequent issues arose after the original
petition was filed, which demonstrate that it is contrary to the juvenile’s health, safety, or
welfare to place the juvenile with the parent.”).
17
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V. Best Interests
Appellant alleges that the circuit court erred in finding that it was in the children’s
best interest to terminate his parental rights, arguing insufficient evidence of adoptability
and potential harm. We disagree.
Adoptability is not an essential element but is rather a factor that the circuit court
must consider. 34 The circuit court expressly found Green’s testimony credible as to
adoption. We have previously held that a caseworker’s testimony that a child is adoptable is
sufficient to support an adoptability finding. 35 Appellant argues that in Greenhill v. Arkansas
Department of Human Services, “a challenge to adoptability was upheld by this court when
the caseworker testified that she was hopeful that his most recent placement would become
permanent, and she was unaware of any behaviors or issues that would keep [the child] from
being adopted into the right home.” 36 The argument is contrary to the outcome of Greenhill
in which the adoptability finding was upheld on other evidence. Even then this court stated
only that it “might agree” with appellant if that were the only evidence. 37
34
Singleton v. Ark. Dep’t of Human Servs., 2015 Ark. App. 455, at 5, 468 S.W.3d 809,
812 (citing Smith v. Ark. Dep’t of Human Servs., 2013 Ark. App. 430, at 4, 431 S.W.3d 364,
367).
35
Duckery v. Ark. Dep’t of Human Servs., 2016 Ark. App. 358, at 5–6 (citing Hamman
v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295, 435 S.W.3d 495).
36
2017 Ark. App. 194, 517 S.W.3d 473.
37
Greenhill, 2017 Ark. App. 194, at 7, 517 S.W.3d at 478.
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Potential harm to the child is a factor to be considered, but a specific potential harm
does not have to be identified or proved by clear and convincing evidence. 38 The potential-
harm analysis is to be conducted in broad terms. 39 It is the “best interest” finding that must
be supported by clear and convincing evidence. 40 This court has consistently noted that
continuing drug use demonstrates potential harm to children. 41 On January 3, 2017, two
days prior to the scheduled termination hearing, appellant admitted and tested positive for
using methamphetamine. And while appellant had been in therapy for two days at the time
of the TPR hearing, he had a history of leaving rehab. 42 More importantly, it was not clear
whether a 21-day, inpatient program was sufficient treatment given appellant’s history.
Additionally, appellant was in and out of jail between May 2016 and November 2016. A
38
Wilson v. Ark. Dep’t of Human Servs., 2015 Ark. App. 666, at 13, 476 S.W.3d 816,
824 (citing Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, at 11, 379 S.W.3d 703,
709).
39
Id.
40
Id. (citing Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, at 9, 444
S.W.3d 366, 372).
41
Jackson v. Ark. Dep’t of Human Servs., 2016 Ark. App. 440, at 7, 503 S.W.3d 122,
126 (citing Eldredge v. Ark. Dep’t of Human Servs., 2014 Ark. App. 385; Davis v. Ark. Dep’t
of Human Servs., 2009 Ark. App. 815, 370 S.W.3d 283; Carroll v. Ark. Dep’t of Human Servs.,
85 Ark. App. 255, 148 S.W.3d 780 (2004)).
42
Whittiker v. Ark. Dep’t of Human Servs., 2015 Ark. App. 467, at 8, 469 S.W.3d 396,
401 (citing Harbin, 2014 Ark. App. 715, 451 S.W.3d 231; Dowdy v. Ark. Dep’t of Human
Servs., 2009 Ark. App. 180, 314 S.W.3d 722 (“We have previously held that it is appropriate
for a trial court to consider a parent’s past behavior as a predictor of likely potential harm
should the children be returned to the parent’s custody.”).
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parent’s imprisonment does not toll his responsibilities toward his child. 43 While in between
stints of imprisonment, appellant had very few visits with the children and no other
communication. Finally, at the time of the hearing, fourteen months after the kids were
taken into care, appellant still had provided no proof of employment, income, or stable
housing.
The burden is on the parent to demonstrate genuine, sustainable investment in
completing the requirements of the case plan and following the orders of the court in order
to retain reunification as the permanency goal. 44 The overriding intent of the legislature is
to provide the state’s children with safe, permanent homes. 45 Even full compliance with the
case plan is not determinative; the issue is whether the parent has become a stable, safe parent
able to care for his or her child. 46 Given this evidence, this court is unable say that the circuit
court was clearly erroneous in finding that the children would be at risk of potential harm
if returned to appellant’s custody or that the children are adoptable. Accordingly, we affirm
the circuit court’s best-interest finding.
43
Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, at 12, 344 S.W.3d 670,
677 (quoting Malone v. Ark. Dep’t of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758
(2000)).
44
Id., at 13–14, 344 S.W.3d at 677 (citing Ark. Code Ann. § 9-27-338(c)(5)(D)).
45
Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, at 12, 379 S.W.3d 703,
710 (citing Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255
S.W.3d 505 (2007)).
46
Wilson, 2015 Ark. App. 666, at 7, 476 S.W.3d at 821 (citing Ford v. Ark. Dep’t of
Human Servs., 2014 Ark. App. 226, at 3, 434 S.W.3d 378, 381).
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VI. Other Arguments
Appellant also argues that “[f]ailing to hold a permanency planning hearing also
foreclosed [his] ability to appeal the failure to pursue a permanency plan of permanent
custody with a relative.” This is an extension of his permanency-planning-hearing argument
that he did not raise below. A party cannot change his argument on appeal and is bound by
the scope of his arguments made to the circuit court. 47 Even in termination cases, we will
not address arguments raised for the first time on appeal. 48 However, this court notes that it
is clear from the record that the circuit court heard evidence regarding a potential placement
with Alber and considered the same as it discussed the possibility in its ruling from the
bench. Appellant’s reasonable-efforts argument was also raised for the first time on appeal,
and therefore, is not addressed by this court.
Affirmed.
HARRISON and WHITEAKER, JJ., agree.
Dusti Standridge, for appellant.
Mary Goff, Office of Chief Counsel, for appellee Arkansas Department of Human
Services.
47
Andrews v. Ark. Dep’t of Human Servs., 2012 Ark. App. 22, at 9, 388 S.W.3d 63, 68
(citing Holiday Inn Franchising, Inc. v. Hospitality Assocs., Inc., 2011 Ark. App. 147, 382
S.W.3d 6).
48
Id. (citing Lyons v. Ark. Dep’t of Human Servs., 2009 Ark. App. 271).
21