                                Cite as 2014 Ark. App. 715

                 ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CV-14-661


ANITA HARBIN                                     Opinion Delivered   December 17, 2014
                               APPELLANT
                                                 APPEAL FROM THE CLEBURNE
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. JV 2012-123]

ARKANSAS DEPARTMENT OF                           HONORABLE LEE WISDOM
HUMAN SERVICES AND MINOR                         HARROD, JUDGE
CHILD
                    APPELLEES                    AFFIRMED



                               RITA W. GRUBER, Judge


       Anita Harbin appeals the circuit court’s May 8, 2014 order that terminated her parental

rights to B.T., who was born on November 2, 2011.1 Harbin challenges the circuit court’s

finding that statutory grounds of unfitness existed for termination. She also contends that

there was not sufficient evidence to support the court’s finding that B.T. would be subject to

potential harm if returned to appellant’s care. We affirm.

       Our review of termination-of-parental-rights cases is de novo. Dinkins v. Ark. Dep’t

of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination must be

proven by clear and convincing evidence, which is such a degree of proof that will produce

in the fact-finder a firm conviction as to the allegation sought to be established. Hughes v.


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       The order also terminated the parental rights of the legal father, who consented to
the termination, and the putative father, who did not attend the termination hearing.
Neither man is a party to this appeal.
                                  Cite as 2014 Ark. App. 715

Ark. Dep’t of Human Servs., 2010 Ark. App. 526. Our inquiry is whether the trial court’s

finding that the disputed fact was proven by clear and convincing evidence is clearly

erroneous. Id. Credibility determinations are left to the fact-finder. Schaible v. Ark. Dep’t of

Human Servs., 2014 Ark. App. 541, 444 S.W.3d 366.

       The intent of our termination statute is to provide permanency in a minor child’s life

in circumstances where returning the child to the family home is contrary to the child’s

health, safety, or welfare, and where the evidence demonstrates that the return cannot be

accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.

Code Ann. § 9-27-341(a)(3) (Supp. 2013). The child’s need for permanency and stability

may override the parent’s request for additional time to improve the parent’s circumstances.

Schaible, 2014 Ark. App. 541, at 8, 444 S.W.3d at 371. The issue is whether the parent has

become a stable, safe parent able to care for the child. Id. The court may consider the

parent’s past behavior as an indicator of future behavior, and even full compliance with the

case plan is not determinative. Id.

       Termination of parental rights is a two-step process requiring a determination that the

parent is unfit and that termination is in the best interest of the child. Jessup v. Ark. Dep’t of

Human Servs., 2011 Ark. App. 463. The first step requires proof of one or more statutory

grounds for termination; the second step, the best-interest analysis, includes consideration of

the likelihood that the juvenile will be adopted and of the “potential harm . . . caused by

returning custody of the child to the parent[.]” Ark. Code Ann. § 9-27-341(b)(3)(B),

(b)(3)(A) (Supp. 2013); Schaible, 2014 Ark. App. 541. In determining potential harm, which


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is forward-looking, the court may consider past behavior as a predictor of likely potential

harm should the child be returned to the parent’s care and custody. Dowdy v. Ark. Dep’t of

Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. There is no requirement to establish

every factor by clear and convincing evidence; after consideration of all factors, the evidence

must be clear and convincing that termination is in the best interest of the child. Jessup, 2011

Ark. App. 463.

       In the present case, the Arkansas Department of Human Services (ADHS) filed its

petition for emergency custody and dependency-neglect of B.T. on September 6, 2012.

Attached to the petition was an affidavit by family-services worker Susan Morrow about

visiting appellant’s home on September 4, 2012, to investigate a report to the child-abuse

hotline. According to the caller, an ambulance had been called because appellant “was out

of her mind” and B.T. had been sent away with a family member. That day, when someone

tried to wake appellant over concern about the length of time B.T. was sleeping, appellant

began spinning in circles and calling out “Momma, Momma.” A call to 911 was made, and

the ambulance took appellant to the hospital for a possible overdose or reaction to something

she had ingested. Morrow subsequently met with appellant, who said that her aunt took B.T.

from the home and that B.T. was with appellant’s cousin Carissa, whose last name appellant

did not know. When Carissa returned B.T. to the home, Morrow saw appellant pick up

B.T., walk a few steps, make a telephone call, and—with no apparent regard for the child in

her arms—begin yelling into the phone and bending over. Appellant said that she did not use

drugs, but she tested positive for methamphetamine and benzodiazepine. ADHS then took


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a seventy-two-hour hold on B.T., and she was placed in ADHS’s legal custody by an ex parte

order for emergency custody.

       On September 26, 2012, the circuit court adjudicated B.T. dependent-neglected due

to appellant’s drug use and irrational behavior while supervising B.T. The court found that

it was contrary to B.T.’s welfare to be returned to appellant’s custody. The goal of the case

was established as reunification. Appellant was ordered to cooperate with ADHS, follow the

case plan, refrain from using or possessing controlled substances, submit to random drug

screens, and obtain a drug-alcohol assessment and follow its recommendations.

       At the February 20, 2013 review hearing, the circuit court again found that returning

B.T. to appellant was contrary to B.T.’s welfare. The court found that appellant had partially

complied with the case plan and court orders; specifically, she had failed to provide proof of

drug therapy. The court stated that appellant needed “to work on stable housing, counseling,

and providing documentation of completion of services.” She was again ordered to cooperate

with ADHS, follow the case plan, refrain from using or possessing controlled substances,

submit to random drug screens, and obtain a drug-alcohol assessment and follow its

recommendations.

       On August 14, 2013, the day of the permanency-planning hearing, ADHS filed its

petition to terminate parental rights. In the August 26, 2013 permanency-planning order, the

circuit court found that appellant had been minimally compliant with the case plan:

       She has recently obtained housing, but has since entered in-patient treatment and will now
       have to establish a safe, stable home prior to reunification, and now receives disability
       income. She has also completed parenting classes. The mother passed random drug
       screens on 4/4/13, 4/17/13, and 7/3/13. The mother has not attended drug counseling or

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         mental health counseling, which were designated to address the issues that caused removal. The
         mother failed a random drug screen on 6/6/13 for methamphetamine and THC.

(Emphasis added.) The court found that B.T.’s biological father, John Timberlake, was

completely noncompliant: he had no stable housing or income, failed to attend counseling,

had an open ADHS case concerning his other children, and had a true finding for sexual

abuse. The court found it contrary to B.T.’s welfare to be returned to the custody of a

parent, and the goal of the case was changed to adoption.

         ADHS alleged in its termination petition that terminating appellant’s parental rights

was in B.T.’s best interest and that appellant was unfit under statutory grounds including

these:

         That B.T. had been out of her custody for at least twelve months, and despite
         meaningful effort by ADHS to remedy the issues causing removal, those issues had not
         been remedied. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a).

         That, subsequent to the filing of the original dependency-neglect petition, other factors
         arose demonstrating that returning B.T. to appellant’s custody “is contrary to [B.T.’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 which prevent return of [B.T.] to
         the custody of the parent.” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).

         The termination hearing took place on October 28, 2013 (five days before B.T.’s

second birthday), and December 4, 2013.                Miranda Monroe, appellant’s caseworker

throughout the case, explained on October 28 why she was recommending termination even

though appellant was “substantially compliant” with the case plan: appellant was

noncompliant at the August 2013 hearing, only recently returned for mental-health

counseling, and finished drug-treatment counseling only twenty days before the termination


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hearing. Appellant’s mental-health and drug-treatment services were through the Wilbur D.

Mills program, and she was currently an inpatient in the Kay Goss program—a part of Wilbur

D. Mills—where services included drug counseling, support groups, and random drug screens,

and where residents could be kicked out for using drugs or breaking rules. Monroe testified

that appellant tested positive for meth and THC in June 2013, that later drug screens were

negative, but that there was a period of time when ADHS could not find her for the screens.

Monroe recommended termination because appellant had shown no stability in a drug-free

life, a stable home, or parenting:

       [I]t’s all very late. And as far as stable housing, she has not done that. As far as her remaining
       drug free, there’s not been a very long period of time. It’s only been since she has [gone] into
       Wilbur D. Mills. I mean, she has not been staying drug free since shortly after this case
       opened. It’s just been since . . . we stated that we want to change the goal to adoption that she
       has decided to become compliant.

(Emphasis added.)

       In December 2013, appellant testified that she used methamphetamine in June 2013

and lived with Timberlake and different friends, tried to find residence at shelters, and slept

in an abandoned home before she began drug treatment. She testified that she relapsed and

used drugs after she walked into a house where two people had been shot and meth was being

cooked; one victim, Timberlake’s six-month-pregnant cousin, had been shot in the head and

killed. Appellant testified that Paul Hicks, her current boyfriend of a month-and-a-half, was

a convicted felon with alcohol problems; they had met at church; he was an outpatient at

Wilbur D. Mills; they regularly attended AA/NA meetings; and they had been told that

relationships with other former addicts could lead to relapse. Monroe testified that appellant


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had continued to live with Timberlake until June 2013 despite being told around February

2013 that he had a “true finding”of sexual activity with a minor. The circuit court took the

case under advisement.

       On February 19, 2014, the court announced its findings in open court. First, the court

found that termination of appellant’s parental rights was in B.T.’s best interest because of the

likelihood that B.T. would be adopted and because of potential harm to her health and safety

should she be returned to appellant. The court then turned to statutory grounds for

termination, finding that B.T. had been adjudicated dependent-neglected and had continued

outside the home of the parent for more than twelve months despite a meaningful effort by

the department, and that conditions that caused removal had not been remedied:

               I’ll specifically find that at the time of removal John Timberlake is who she was
       living with, which obviously caused me a great deal of concern. At this time my
       concern is the new boyfriend who she engaged in a relationship in . . . the eleventh
       hour of the case. His criminal history including felony convictions for violence. The
       fact that he was previously in prison. . . . They met in drug rehab. He obviously has
       his own set of addictions and problems as does she. . . . [T]hat’s really a concern that
       in the eleventh hour of a case . . . knowing that your parental rights are on the line .
       . . you would engage in a relationship with someone that you met in drug rehab.

               I am concerned about the continued drug usage of the mother late in the case.
       I’m also concerned . . . that she continued to live with John Timberlake early in the
       case, from February 2013 through June 2013, knowing that he was a sex offender. .
       . . I’m also concerned that throughout the case she spent time with people engaged in
       criminal activity. I was very concerned about the evidence presented where [she] was
       at a meth lab where she witnessed someone getting shot in the head . . . She did
       complete a program . . . very, very late in the game. I’ll find it eleventh hour
       compliance. And, like I said, at this time her boyfriend is a felon who just got out of
       drug rehab.

              The other big concern I have is that . . . in the course of this case, . . . close to
       the year mark there were kids that were in her custody in White County while she
       was living with John Timberlake in a White County case, and those kids came into

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       foster care. And there’s a White County Dependency Neglect Case now and she was
       in the home at the time those kids were removed . . . .

The court reiterated its finding that it was in B.T.’s best interest to terminate parental rights.

       The court’s written order of termination set forth two statutory grounds of Ark. Code

Ann. § 9-27-341(b)(3)(B):

       (i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and
       has continued to be out of the custody of the parent for twelve (12) months and,
       despite a meaningful effort by the department to rehabilitate the parent and correct the
       conditions that caused removal, those conditions have not been remedied by the
       parent.

       (vii)(a) That other factors or issues arose subsequent to the filing of the original petition
       for dependency-neglect 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.

       In her first point on appeal, appellant contends that the circuit court clearly erred in

finding statutory grounds for termination. She argues that, even if her compliance was

eleventh hour, her six-month sobriety left no question that she had remedied the condition

causing removal. She points to Kight v. Arkansas Department of Human Services, 87 Ark. App.

230, 189 S.W.3d 498 (2004) (Kight I), where we reversed an order terminating the mother’s

parental rights to two children.2


       2
         See also Kight v. Ark. Dep’t of Human Servs., 94 Ark. App. 400, 231 S.W.3d 103
(2006) (Kight II) (affirming the circuit court’s subsequent order terminating Kight’s parental
rights):

       Our prior opinion in this case was largely based on Trout v. Arkansas Dep’t of Human
       Servs., 84 Ark. App. 446, 146 S.W.3d 895 (2004), where we held that the trial court
       erred by disregarding appellant’s eleventh-hour progress made toward reunification.

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       In Kight I, A.W. was removed due to Kight’s drug use in July 2002 and L.M. was

removed at birth in January 2003 because mother and child tested positive for cocaine. The

circuit court terminated Kight’s parental rights to A.W. on the statutory grounds that the

conditions causing removal had not been remedied and that A.W. had been out of the home

for more than twelve months; regarding L.M., termination was due to little likelihood that

reunification would result; and as to both children, termination was in their best interests. We

concluded that the reason for A.W.’s removal was not that Kight was an unfit parent or

unable to care for her child, but drug abuse—which she corrected after A.W.’s removal. We

noted that Kight followed the court’s directive for treatment following A.W.’s removal by

enrolling in Freedom House, where her drug tests were negative from July 2002 through

December 2002, but that she but tested positive in January 2003. Following her positive test,

she enrolled in Chance Sobriety. CASA originally recommended a ninety-day stay, but she

completed six months of residential drug counseling there. The caseworker testified that she

was prepared to return A.W. to the home. We noted the testimony of Chance’s Ben Perkins

regarding Kight’s improvement: she had been drug free for the entire program, even after



       That case, however, was reversed by the Arkansas Supreme Court in an opinion that
       expressly held that the trial court was not bound to attach significant weight to such
       tardy improvements, and which restated the fundamental principle that we give great
       deference to the superior position of the trial court, through observation and
       extended experience with the parties, to determine whether last-minute efforts are
       sincere, or instead merely a ruse to prevent imminent termination of parental rights.
       Trout v. Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004).

Kight, 94 Ark. App. at 410–11, 231 S.W.3d at 110 (Pittman, J., concurring).


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utilizing unsupervised weekend passes and spending some of them in the home of a man who

abused drugs; she had responsibilities in the house, including oversight of other patients’ drug

testing; and he believed that she would be successful once she reentered society. We noted

that A.W. was initially stable with Kight—doing well in her care despite her drug abuse—and

was not removed from the home in 2001 when ADHS began its investigation. We

concluded that Kight, by maintaining full-time employment while at Chance and remaining

clean and sober for over six months, had done exactly what DHS asked her to do. Regarding

L.M., we found that the sole reason leading to removal was Kight’s one-time drug relapse and

that she had corrected the condition leading to removal.

       The present case is easily distinguishable from Kight I regarding failure to remedy

conditions. As the circuit court noted, adjudication occurred in September 2012 and

appellant did not complete drug treatment until October 2013. Her live-in boyfriend,

Timberlake, had continuing drug issues to the point that ADHS became involved with him

and his older children from their home. Appellant did diligently comply with the case plan

after B.T.’s removal and did not enter drug treatment until the goal was being changed to

adoption, which appellant’s caseworker believed was appellant’s only motivation for

complying. Appellant made no progress until she was in the restrictive environment at

Wilbur D. Mills and did not complete drug treatment until B.T. had been out of her custody

for over a year. Even on the final day of the termination hearing, she was in a relationship

with a former addict and it was unknown if she would remain drug free outside the confines

of the rules and regulations of her current inpatient treatment. We hold that the circuit court


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did not clearly err in finding that appellant failed to remedy the drug abuse that led to B.T.’s

removal.

       Appellant also argues that she had no notice of the subsequent-factors statutory ground

for termination. This argument is not preserved for review. After twice objecting at the

termination hearing to questions regarding her boyfriend, her counsel replied affirmatively

when the circuit court specifically asked if the objection was to relevance. We will not

address on appeal arguments that were not raised to the trial court. Lamontagne v. Ark. Dep’t

of Human Servs., 2010 Ark. 190, 366 S.W.3d 351.

       As her second point on appeal, appellant contends that the circuit court clearly erred

in finding that termination was in B.T.’s best interest and that B.T. would be subject to

potential harm if returned to her care. Appellant argues that she substantially complied with

the case plan, making the improvements she was asked to make, and that neither her one-time

drug relapse nor her relationship with men demonstrated instability.

       In finding that potential harm would be caused by returning B.T. to appellant, the

court found that appellant had not demonstrated through her eleventh-hour compliance that

she was a safe and appropriate placement for B.T. The evidence we have previously

summarized demonstrated the risk of potential harm that B.T. would face if returned to

appellant. Appellant used drugs and had unstable housing long after the case had begun and

continuously made decisions contrary to B.T.’s best interest that prevented returning B.T. to

her custody. Fifteen months after the case had begun—while living in the controlled

environment of Kay Goss, while receiving counseling and treatment, and despite knowing


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that it was inadvisable to have a relationship with an addict—she was in a relationship with

a recovering addict who was a felon. B.T. had spent the majority of her young life in foster

care, a fact attributable to appellant’s failure to diligently comply with the case plan, and was

bonded with her foster family. Based on appellant’s delays in diligently complying, her

caseworker believed termination to be in B.T.’s best interest and believed that B.T. would

be harmed by a delay in permanency.

       The circuit court is not required to find that actual harm would result or to

affirmatively identify a potential harm. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App.

798, 378 S.W.3d 290. The potential-harm evidence must be viewed in a forward-looking

manner and considered in broad terms. Dowdy, 2009 Ark. App. 180, 314 S.W.3d 722. We

find no clear error in the circuit court’s finding that termination of appellant’s parental rights

is in B.T.’s best interest, including the consideration of potential harm that would result from

returning B.T. to appellant. Ark. Code Ann. § 9-27-341(b)(3)(A).

       Affirmed.

       HARRISON and GLOVER, JJ., agree.

       Leah Lanford, Arkansas Public Defender Commission, for appellant.

       Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellees.




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