Cite as 2017 Ark. App. 529
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-17-512
Opinion Delivered October 18, 2017
LYLE WHITE
APPELLANT APPEAL FROM THE MADISON
COUNTY CIRCUIT COURT
V. [NO. 44JV-16-5]
ARKANSAS DEPARTMENT OF HONORABLE STACEY
HUMAN SERVICES AND MINOR ZIMMERMAN, JUDGE
CHILD
APPELLEES AFFIRMED
N. MARK KLAPPENBACH, Judge
Lyle White appeals the Madison County Circuit Court order terminating his parental
rights to his daughter, AH. On appeal, White challenges the circuit court’s finding that
termination of his parental rights was in AH’s best interest. We affirm.
The Arkansas Department of Human Services (DHS) removed AH from the custody
of her mother, Kelsey Hull, soon after her birth in January 2016. Hull and the newborn
both tested positive for methamphetamine, amphetamines, benzodiazepines, and opiates.
Hospital staff reported that Hull had been leaving the hospital and returning smelling of
alcohol. Additionally, she was homeless. Hull’s mother, Kathy Green, was the permanent
guardian of Hull’s oldest child, and Hull’s sister had been caring for her other son.
White appeared at the probable-cause hearing, where the circuit court ordered that
he have visitation with AH at the hospital, communicate with the caseworker, submit to
drug screens, obtain and maintain stable housing and employment, and demonstrate the
Cite as 2017 Ark. App. 529
ability to protect the child from harm. White failed to appear for the February 26, 2016
adjudication hearing, and the court found that he had not submitted to a drug screen or
visited the child since the probable-cause hearing. The circuit court found that AH was
dependent-neglected due to neglect and parental unfitness and that she had been subjected
to aggravated circumstances. AH remained in the custody of DHS, but she was moved to
the provisional foster home of her maternal grandmother, Kathy Green. In addition to the
court’s prior orders, White was ordered to participate in individual counseling, have a drug-
and-alcohol assessment, and complete parenting classes.
On April 22, 2016, the circuit court ordered that reunification services would no
longer be provided and authorized a plan for termination of parental rights and adoption.
White had failed to appear for the hearings on this date, and the court found that he had not
availed himself of services or visits. After a termination hearing in June 2016, the court
terminated Hull’s parental rights but denied the petition as to White. The court found that
White was entitled to more time because he had not been transported from prison for the
no-reunification-services and permanency-planning hearings, and he was not represented by
counsel at those hearings despite having filed a pro se motion for appointment of counsel.1
The court additionally noted that White had sent letters to the court, he was the
nonoffending parent in the case, and he had testified about taking classes in prison.
However, the court also found that White had been incarcerated for most of the case, was
1
White had been appointed counsel prior to the termination hearing.
2
Cite as 2017 Ark. App. 529
currently incarcerated on a parole violation, and had new pending charges. Reunification
with White was set as the new goal of the case, and a permanency-planning hearing was
scheduled. The court later granted White’s motion to continue the hearing until after his
release from prison, but White was again incarcerated when the hearing was held in January
2017. The court again authorized a plan for adoption.
White testified at the February 2017 termination hearing that he was incarcerated for
violating his parole and expected to be released in June. He had been released from prison
on the day AH was born in January 2016 after serving about six months for a parole violation
on the underlying conviction of possession of methamphetamine. White said that he was
present for the first thirteen days of AH’s life when she was hospitalized. He was arrested
again, however, around March 13, 2016, for possession of drugs. White claimed that he was
“just somewhere where everybody got charged.” He was convicted of that charge and
incarcerated from March 2016 to November 23, 2016. After being released on parole, he
was arrested for possession of methamphetamine around December 13, 2016. White said
that this charge was due to “riding around with the wrong people.” He was awaiting trial
on this charge, but he believed it would be dropped.
White wanted Green to have permanent custody, but he claimed that once he was
released he would have a job and could provide love and support to AH. AH had been
placed with Green since February 2016, and White had not had any visitation during that
time. AH did not know him. Green testified that she wanted to adopt AH and had been
3
Cite as 2017 Ark. App. 529
approved as an adoptive home. The caseworker testified that White had not complied with
any court orders and that AH’s permanency was more important than granting more time
to White.
The circuit court found that two statutory grounds for termination existed and that
termination was in AH’s best interest. On appeal, White argues that termination was not in
AH’s best interest in light of her placement with her maternal grandmother. He does not
challenge the grounds for termination, and he concedes that AH is adoptable.
In order to terminate parental rights, a circuit court must find by clear and convincing
evidence that termination is in the best interest of the juvenile, taking into consideration (1)
the likelihood that the juvenile will be adopted if the termination petition is granted; and (2)
the potential harm, specifically addressing the effect on the health and safety of the child,
caused by returning the child to the custody of the parent. Ark. Code Ann. §
9-27-341(b)(3)(A)(i) & (ii) (Repl. 2015). Clear and convincing evidence is that degree of
proof that will produce in the finder of fact a firm conviction as to the allegation sought to
be established. McElwee v. Ark. Dep’t of Human Servs., 2016 Ark. App. 214, 489 S.W.3d 704.
The appellate inquiry is whether the circuit court’s finding that the disputed fact was proved
by clear and convincing evidence is clearly erroneous, giving due deference to the circuit
court’s opportunity to judge the credibility of the witnesses. 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.
4
Cite as 2017 Ark. App. 529
A circuit court is required to consider only potential harm to a child’s health and
safety that might come from continued contact with the parents; there is no requirement to
find that actual harm would result or identify the potential harm. Pine v. Ark. Dep’t of Human
Servs., 2010 Ark. App. 781, 379 S.W.3d 703. Furthermore, the juvenile’s need for
permanency and stability overrides a parent’s request for additional time to improve
circumstances, and courts will not enforce parental rights to the detriment of the well-being
of the child. McElwee, supra. The intent of the termination statute is to provide permanency
in the child’s life in all circumstances where a return to the parent is contrary to the juvenile’s
health, safety, or welfare and cannot be accomplished in a reasonable period of time as
viewed from the child’s perspective. Id.
White contends that there would be no harm to AH if his rights were not terminated
because she could remain in the care of her grandmother, and he could establish a
relationship with her once he is released from prison. Citing Cranford v. Arkansas Department
of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851, and Bunch v. Arkansas Department
of Human Services, 2017 Ark. App. 374, 523 S.W.3d 913, White argues that termination was
not necessary to achieve permanency and stability for the child. In those cases, this court
reversed the termination of parental rights upon finding that termination was not in the best
interest of the children based on the custody arrangement and other factors. AH, like the
children in Cranford and Bunch, was living with her grandparents, but other factors distinguish
White’s case.
5
Cite as 2017 Ark. App. 529
In Cranford, the child’s father was incarcerated at the time of the termination hearing,
but he anticipated being released in six weeks and had demonstrated stability in housing and
employment before his incarceration. The grandmother testified that she wanted both
parents to remain in the child’s life and have regular visitation. Cranford, supra. In Bunch, we
held that the mother had complied with many aspects of the case plan and that there was
ample evidence that continued contact with her was in the children’s best interest. The case
at bar is more akin to Brumley v. Arkansas Department of Human Services, 2015 Ark. 356, in
which the father had been incarcerated for most of the child’s life, had no relationship with
the child, and lacked essential components of the case plan as a result of his continued
incarceration. Despite the fact that the child was being cared for by relatives, the supreme
court held that termination of parental rights was in the child’s best interest where the
evidence did not reflect any stability or reasonable hope for reunification. Brumley, supra; see
also Scrivner v. Ark. Dep’t of Human Servs., 2016 Ark. App. 316, 497 S.W.3d 206 (affirming
best-interest finding of children placed with grandmother where father had repeated
incarcerations, faced pending charges, had substance-abuse issues, and had failed to comply
with case plan).
White had a series of drug charges dating back to at least 2009, and new charges and
parole violations led to his chronic incarceration. He was convicted of a new drug offense
during the pendency of this case, and he had an unresolved drug charge at the time of the
termination hearing. White blamed being around the wrong people for these charges, but
6
Cite as 2017 Ark. App. 529
it is clear that his own poor choices led to his arrests and demonstrated the potential harm
to AH. According to White’s testimony, he had been incarcerated for approximately
seventeen of the last twenty months, and he anticipated that he would remain incarcerated
for at least the next four months. In the brief periods he was not incarcerated, White failed
to comply with the case plan. As the circuit court found, White’s failure to demonstrate
stability or sobriety created an undue risk of harm to AH if she was placed in his custody.
Based on these facts, the circuit court’s finding that termination was in the child’s best
interest was not clearly erroneous.
Affirmed.
GLADWIN and HARRISON, JJ., agree.
Dusti Standridge, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
7