Cite as 2017 Ark. App. 476
ARKANSAS COURT OF APPEALS
DIVISION III
CV-17-356
No.
ERIK STEVEN CANADA Opinion Delivered: September 27, 2017
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. 04JV-15-342]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILDREN
HONORABLE THOMAS SMITH,
APPELLEES JUDGE
AFFIRMED
RITA W. GRUBER, Chief Judge
Erik Canada appeals from the Benton County Circuit Court’s order terminating his
parental rights to L.C. (born September 10, 2011) and J.C. (born January 10, 2014). He
brings two points on appeal: (1) the circuit court’s best-interest finding was clearly erroneous
because the court lacked evidence of adoptability and (2) there was insufficient evidence to
establish grounds for termination. We affirm the circuit court’s order terminating appellant’s
parental rights.
The children were taken into custody by the Arkansas Department of Human
Services (DHS) on June 4, 2015, after a police officer discovered them in a parked car with
their mother, Kimberly Hill, who told officers that she was homeless. 1 Appellant was not
married to Kimberly, but he is the legal father of L.C. and J.C. and was in an ongoing
relationship with her. Appellant was located about 400 to 500 feet away from the car. Police
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Ms. Hill consented to termination and is not a party to this appeal.
Cite as 2017 Ark. App. 476
discovered a broken glass pipe with marijuana residue on it in the car and a digital scale that
had methamphetamine residue on it in the backseat with the children. Kimberly admitted
having used methamphetamine outside the car while the children were sleeping. Both
appellant and Kimberly were arrested and charged with felony possession of drug
paraphernalia. Kimberly was also charged with misdemeanor drug possession.
The affidavit attached to the petition for emergency custody also revealed that
appellant had been arrested in 2013 for third-degree domestic battering regarding an
incident with Kimberly, that the couple fought regularly, and that there was a no-contact
order between Kimberly and appellant at the time the children were taken into custody. In
an order entered on August 11, 2015, the court adjudicated the children dependent-
neglected due to parental unfitness and inadequate supervision. Appellant was ordered by
the court to submit to drug-and-alcohol screens, complete parenting classes, obtain and
maintain stable and appropriate housing, obtain and maintain stable and gainful
employment, submit to a drug-and-alcohol assessment and complete all recommended
treatment, attend anger management, and resolve all criminal issues.
On May 3, 2016, the circuit court continued a permanency-planning hearing for a
month to allow appellant to enter and complete a drug-treatment program. The court
resumed the hearing on June 7, 2016, and found that appellant was not compliant with the
case plan and was not moving toward resolving the issues that caused removal of the
children. DHS filed a petition for termination on August 31, 2016, pleading two grounds
for termination: (1) the children had been adjudicated dependent-neglected and had
continued out of the home of the noncustodial parent for twelve months and despite a
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meaningful effort by DHS to rehabilitate the parent and correct the conditions that
prevented the child from safely being placed in the parent’s home, the parent had failed to
remedy the conditions; and (2) aggravated circumstances: there was little likelihood that
services to the family would result in successful reunification. Ark. Code Ann. § 9-27-
341(b)(3)(B)(i)(i) and (ix)(a)(3) (Repl. 2015). The court entered an order on January 30,
2017, terminating appellant’s parental rights on both grounds. The court also found that it
was in the children’s best interest to terminate appellant’s parental rights, specifically
considering adoptability and potential harm.
We review termination-of-parental-rights cases de novo. Wilson v. Ark. Dep’t of
Human Servs., 2015 Ark. App. 666, at 7, 476 S.W.3d 816, 821. The trial court must make
two findings by clear and convincing evidence: (1) at least one statutory ground exists and
(2) it is in the child’s best interest to terminate parental rights. Ark. Code Ann. § 9-27-341).
In making a “best interest” determination, the trial 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. Smith v. Ark. Dep’t of Human Servs., 2013 Ark. App. 753,
at 4, 431 S.W.3d 364, 367. The appellate inquiry is whether the trial court’s finding that
the disputed fact was proved by clear and convincing evidence is clearly erroneous. Brown
v. Ark. Dep’t of Human Servs., 2015 Ark. App. 725, at 4, 478 S.W.3d 272, 275. Credibility
determinations are left to the fact-finder. Henson v. Ark. Dep’t of Human Servs., 2014 Ark.
App. 225, at 6, 434 S.W.3d 371, 375.
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I. Grounds for Termination
Appellant contends that the evidence presented was insufficient to support either of
the court’s findings on grounds for termination. Only one ground is necessary to support
the court’s termination of parental rights. King v. Ark. Dep’t of Human Servs., 2016 Ark.
App. 368, at 5. We turn first to the court’s finding of aggravated circumstances, specifically
that there is little likelihood that services to the family will result in successful reunification.
Appellant argues that he had participated in parenting classes, counseling, and anger
management and, at the time of the termination hearing, he was in a drug-treatment
program. He claims that these actions indicated that he was making progress and that
additional services could result in successful reunification.
The termination hearing was held on October 11, 2016. At that time, appellant had
been in a drug-treatment program for one week and had four or five weeks remaining. The
court recognized that appellant was in treatment and expressed the hope that he would
continue the treatment, but it also stated that it was unknown whether he would continue
in treatment and that the children could wait no longer. They had been in DHS custody
for sixteen months. Appellant had attempted treatment in February 2016 for one week and
again in July 2016 for several weeks. He had broken the rules during both treatments and
been expelled from the programs before completing either. He also testified that he had not
seen his children since May 2016, had not had steady employment or housing since the
children had been in DHS custody, and was on probation for assault on the children’s
mother and possession of drug paraphernalia at the time of the hearing. Our review of this
evidence convinces us that the court’s finding of aggravated circumstances is not clearly
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erroneous. Because we find no clear error with the circuit court’s finding on this ground, it
is unnecessary to address the second ground. Ware v. Ark. Dep’t of Human Servs., 2016 Ark.
App. 480, at 7, 503 S.W.3d 874, 879.
II. Adoptability
Appellant also argues that the circuit court clearly erred in finding that it was in the
best interest of the children to terminate because there was insufficient evidence introduced
to establish that the children were adoptable. The trial court is not required to find by clear
and convincing evidence that the children are adoptable but merely must consider the
likelihood of adoption if parental rights are terminated. Miller v. Ark. Dep’t of Human Servs.,
2016 Ark. App. 239, at 7, 492 S.W.3d 113, 117. Adoptability is not an essential element of
proof. Singleton v. Ark. Dep’t of Human Servs., 2015 Ark. App. 455, at 6, 468 S.W.3d 809,
813. In order for a circuit court to consider adoptability, this court has not required DHS
to introduce abundant evidence of adoptability; rather, we have held that “[c]onsideration
requires evidence . . . or at least some finding by the trial court that other aspects of the
best-interest analysis so favor termination that the absence of proof on adoptability makes
no legal difference.” Haynes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 28, at 4. We
have explained that this does not require DHS to provide the names of specific adoptive
parents for the children or even provide evidence that it has identified such persons at the
termination hearing. Singleton, 2015 Ark. App. 455, at 6, 468 S.W.3d at 813.
Here, the caseworker testified that DHS had begun looking for potential adoptive
placements for the children and that it had “had some luck with that.” She continued, the
children “are reasonably likely to be adopted if they were free for adoption.” On cross-
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examination, the caseworker said that the children would be adopted together and that she
had “several homes that would fit the criteria of these children.”
In its order, the court found that it was in the best interest of the children to terminate
appellant’s parental rights, specifically considering adoptability. The court cited the
caseworker’s testimony that adoption would be “reasonably likely” upon termination and
specifically found her testimony to be credible. We cannot say that the court’s finding on
best interest was clearly erroneous.
Affirmed.
WHITEAKER and BROWN, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee Arkansas Department of
Human Services.
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