                                Cite as 2013 Ark. App. 556



                ARKANSAS COURT OF APPEALS
                                     DIVISION IV
                                     No. CV-13-354



                                              Opinion Delivered   October 2, 2013

 TASSIE ANTHONY                        APPEAL FROM THE CRAIGHEAD
                                       COUNTY CIRCUIT COURT,
                             APPELLANT WESTERN DISTRICT
                                       [NO. JV-2012-61]
 V.
                                              HONORABLE BARBARA HALSEY,
 ARKANSAS DEPARTMENT OF                       JUDGE
 HUMAN SERVICES and MINOR
 CHILDREN
                     APPELLEES AFFIRMED


                            RHONDA K. WOOD, Judge


      The circuit court terminated Tassie Anthony’s parental rights to her two children.

She appeals and argues that the Department of Human Services (DHS) failed to prove a

statutory ground for termination. We disagree and affirm.

                                         I. Facts

      T.W.1 was born weighing 4 lbs. and 11 oz. on February 13, 2012. She spent nine

days in the hospital on oxygen and IV antibiotics. Due to her medical condition, the

hospital required her mother, Tassie Anthony, to take a CPR course before releasing the

child to her. Anthony refused to take the class and also tested positive for drugs, so DHS

took a hold on T.W.1 on February 27, 2012. Anthony again tested positive for drugs at

the probable-cause hearing, and the court found probable cause as to T.W.1 and placed a
                                 Cite as 2013 Ark. App. 556



72-hour hold on Anthony’s other child, T.W.2.1 Both children were adjudicated

dependent-neglected in April 2012. The court found that Anthony had abandoned T.W.1

and was unfit to parent because of drug use. Notably, neither Anthony nor T.W.2 was

present at the adjudication hearing.

       DHS filed a petition to terminate Anthony’s parental rights to both children in

June 2012. It alleged that Anthony had abandoned T.W.1 and absconded with T.W.2,

whom DHS had still been unable to locate and bring into custody. Anthony had yet to

appear since the first probable-cause hearing or have any significant contact with DHS.

Anthony eventually relinquished T.W.2 to DHS’s custody in August 2012. A termination

hearing began then, but the case was continued, and the court terminated Anthony’s

parental rights to both children after a January 2013 hearing.

       Testimony at the hearing showed that since Anthony had reappeared in August,

she had exercised visitation with her children inconsistently, missing at least five scheduled

visits. Further, Anthony had been arrested three times; had not had a job since October

2012; and was currently living with her mother. Both Anthony and her mother had

recently been arrested for drug possession.

       Terri Blanchard, foster-care supervisor, testified that DHS had provided Anthony

with parenting classes, but that referrals to psychological and drug assessments were

discussed but never made. According to Blanchard, those services were delayed because

Anthony failed to provide contact information and had been in and out of jail. Anthony



       1
         A probable-cause hearing was subsequently held as to T.W.2, and the mother
failed to appear.
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admitted that she had absconded with T.W.2, failed to comply with court orders, and had

spent over a month in jail. She also admitted to having a drug problem, but had just

started (in January 2013) rehab.

       The juvenile court terminated Anthony’s rights to both of her children, finding by

clear and convincing evidence that termination was in the children’s best interest. Further,

the court found that the following statutory grounds had been proved by clear and

convincing evidence:

             That Anthony had abandoned T.W.1,2 and

             That other factors or issues arose subsequent to the filing of the original
              petition for dependency-neglect that demonstrate that return of the juvenile
              to 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 return of the
              juvenile to the custody of the parent.3

Anthony appeals the termination order, arguing that the court’s finding on the statutory

grounds was clearly erroneous. We disagree.

                           II. Standard of Review and Applicable Law

       This court reviews termination-of-parental-rights cases de novo. Dinkins v. Ark.

Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination of

parental rights must be proved by clear and convincing evidence. M.T. v. Ark. Dep’t of

Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). When the burden of proving a

disputed fact is by “clear and convincing evidence,” the question on appeal is whether the


       2
           Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) (Supp. 2011).
       3
           Ark. Code Ann. § 9-27-341(b)(3)(B)(vii) (Supp. 2011).
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circuit court’s finding that the disputed fact was proved by clear and convincing evidence

is clearly erroneous, giving due regard to the opportunity of the trial court to judge the

credibility of the witnesses. Id. Termination of parental rights is an extreme remedy and in

derogation of the natural rights of parents, but parental rights will not be enforced to the

detriment or destruction of the health and well being of the child. M.T., supra.

       The termination of parental rights is a two-step process that requires the circuit

court to find that the parent is unfit and that termination is in the best interest of the child.

L.W. v. Ark. Dep’t of Human Servs., 2011 Ark. App. 44, 380 S.W.3d 489. The first step

requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. §

9-27-341(b)(3)(B) (Supp. 2011). The second step requires consideration of whether the

termination of parental rights is in the juvenile’s best interest. Ark. Code Ann. § 9-27-

341(b)(3)(A) (Supp. 2011). Anthony does not challenge the court’s best-interest finding,

so we only address whether a statutory ground for termination exists by clear and

convincing evidence. See Hoffman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 856, 380

S.W.3d 454.

                                        III. Discussion

       The circuit court’s finding that DHS proved the “other factors” ground by clear

and convincing evidence was not clearly erroneous. Because only one ground is needed to

terminate, we do not address abandonment, the other alleged statutory ground. See

Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007).

        First, Anthony concealed T.W.2 from DHS and law enforcement following the

first probable-cause hearing in March 2012 and did not turn him over to DHS until

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August 2012. Second, the evidence showed that returning the children to Anthony is

contrary to their health, safety, and welfare. Anthony did not have a job or a stable

residence. When the hearing took place, she lived with her mother, and both of them

were drug users and recent arrestees. A court could not return the children to Anthony’s

custody under these circumstances because she could not provide for their basic needs,

used drugs, and had demonstrated an inability to stay out of jail.

       Third, Anthony had made only marginal attempts at improving her situation since

she reinstituted contact with DHS in August 2012. Since that time, she had been to jail

multiple times and had exercised sporadic visitation. She admitted to still having a drug

problem but had not made significant progress at rehabilitation. This is important because

the children came into custody in the first place because Anthony had tested positive for

drugs. Yet, almost a year later, Anthony had just begun rehabilitation. Further, Anthony

did not take advantage of any of the services DHS offered because she was either absent,

in jail, or had failed to provide her address. In fact, the only services Anthony took

advantage of were parenting classes, watching “The Clock is Ticking” video, and

attending staffings. Anthony argues that she “immersed herself in the case after the August

. . . hearing.” But she admitted that she was in jail from November 14 to December 14

and that she had missed multiple visitations. Essentially, Anthony only communicated with

DHS one-half of the time the case was open and was in jail one-fourth of that time. There

is no merit to Anthony’s contention that she made significant efforts to remedy her

situation.




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       Finally, Anthony has raised the issue that the petition to terminate was stale and

that she lacked notice of the issues she had to defend against at the termination hearing.

While it’s true that DHS filed the petition to terminate in June 2012 and most of the

issues discussed above occurred after August 2012, Anthony never objected at the hearing

that she lacked notice of the charges against her. “Permitting the introduction of proof on

an issue not raised in the pleadings constitutes an implied consent to trial on that issue.”

Hope v. Hope, 333 Ark. 324, 330, 969 S.W.2d 633, 636 (1998). Additionally, failure to

raise an issue below precludes appellate review. Lamontagne v. Ark. Dep’t of Human Servs.,

2010 Ark. 190, 366 S.W.3d 351.

       Affirmed.

       GRUBER and HIXSON, JJ., agree.

       Leah Lanford, Arkansas Public Defender Commission, for appellant.

       Tabitha Baertels McNulty, DHS—Office of Policy and Legal Services, and Chrestman

Group, PLLC, by: Keith Chrestman, for appellees.




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