                                   Cite as 2017 Ark. App. 374


                  ARKANSAS COURT OF APPEALS

                                      DIVISIONS I and IV
                                        No. CV-17-101


HAYLEE MONIQUE BUNCH                               Opinion Delivered:   June 7, 2017
                   APPELLANT
                                                   APPEAL FROM THE MARION
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. 45JV-15-7]

ARKANSAS DEPARTMENT OF        HONORABLE DEANNA S.
HUMAN SERVICES AND MINOR      LAYTON, JUDGE
CHILDREN
                    APPELLEES REVERSED AND REMANDED


                              KENNETH S. HIXSON, Judge

       Appellant Haylee Bunch appeals from the termination of her parental rights to her

eight-year-old daughter, J.B., and seven-year-old son, C.B. 1 On appeal, Haylee challenges

the sufficiency of the evidence, arguing that the trial court clearly erred in finding that

termination of her parental rights was in the best interest of the children. We agree, and

we reverse and remand.

       We review termination-of-parental-rights cases de novo. Dunn v. Ark. Dep’t of

Human Servs., 2016 Ark. App. 34, 480 S.W.3d 186. At least one statutory ground must

exist, in addition to a finding that it is in the child’s best interest to terminate parental rights;

these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)

(Repl. 2015); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177



       1
     The children’s father, Catlin Bridgers, also had his parental rights terminated.
However, Catlin did not appeal.
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(1997). Clear and convincing evidence is that degree of proof that will produce in the

factfinder a firm conviction as to the allegation sought to be established. Dunn, supra. The

purpose of terminating a parent’s rights to his or her children is to provide permanency in

the child’s life when returning the juvenile to the family home is contrary to the child’s

health, safety, or welfare, and it appears that a return to the family home cannot be

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

Code Ann. § 9-27-341(a)(3). A heavy burden is placed on a party seeking termination

because termination of parental rights is an extreme remedy in derogation of the natural

rights of the parents. Grant v. Ark. Dep’t of Human Servs., 2010 Ark. App. 636, 378 S.W.3d

277. We will not reverse a termination order unless the trial court’s findings were clearly

erroneous. Meriweather v. Ark. Dep’t of Human Servs., 98 Ark. App. 328, 255 S.W.3d 505

(2007). 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. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240

S.W.3d 626 (2006).

       In April 2015 the two children were living with their parents, Haylee Bunch and

Catlin Bridges, in Flippin. On April 13, 2015, appellee Arkansas Department of Human

Services (DHS) filed a petition for emergency custody of the children. Attached to the

petition was an affidavit of a family-service worker stating that DHS had taken an emergency

hold of the children after the police had gone to the residence on a domestic-disturbance

call and found the front window and door broken. The police informed the DHS worker

that both Haylee and Catlin were being arrested for domestic battery and endangering the


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welfare of a minor, leaving the children without a caretaker. On April 14, 2015, the trial

court entered an order for emergency custody. After a very brief stay in a foster home, the

children were placed in the custody of their maternal grandmother, Monica Bunch, where

they remained throughout the case.

       The trial court entered a probable-cause order on May 26, 2015, and an adjudication

order on July 9, 2015. The adjudication order set the goal of the case as reunification with

the concurrent goal of relative placement. On January 12, 2016, the trial court entered a

review order wherein both parents were ordered to attend counseling and anger-

management classes, submit to random drug screens, avail themselves of employment

services, and obtain appropriate housing. In addition, the parents were afforded visitation

with the children a minimum of two times per week for two hours per visit.

       On April 22, 2016, the trial court entered a permanency-planning order. In that

order, the trial court found that both parents had complied with the case plan, and

specifically that Haylee had completed counseling, assessments, random drug screens, and

employment. The permanency-planning order set the case goal as placing the children in

the custody of a parent within a time frame consistent with the juveniles’ developmental

needs, but no later than three months from the date of the permanency-planning hearing.

The trial court also authorized a concurrent plan to obtain permanent custody with a fit and

willing relative, stating that Monica Bunch may be named as permanent custodian in a

separate proceeding should the need arise.

       On September 23, 2016, the trial court entered a fifteen-month review order

changing the goal of the case to termination of parental rights and adoption. In that order,


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the trial court found that although the parents had partially complied with the case plan,

they were living with a friend, they were not in a position to have custody returned to

them, and there was no compelling reason to continue reunification services. The trial

court noted that both parents were involved in an altercation in April 2016, which resulted

in the police being called and Catlin being arrested. Haylee had admitted to using marijuana

that day.

       DHS filed a petition to terminate parental rights, and after a hearing, 2 the trial court

entered an order terminating both parents’ parental rights on November 10, 2016. The trial

court found clear and convincing evidence of the following grounds under 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.

The trial court further found by clear and convincing evidence that termination of parental

rights was in the children’s best interest, and the court specifically considered the likelihood

that the children would be adopted, as well as the potential harm of returning them to the


       2
           Haylee appeared at the termination hearing. Catlin did not.
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custody of their parents as required by Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). In

reaching its decision, the trial court relied specifically on the testimony of the DHS

caseworker who testified that the maternal grandmother, Monica Bunch, wished to adopt

the children.

       Janie King testified at the termination hearing. Janie testified that she is a friend of

the family and that Haylee lives with her in her home in Lakeview. Janie stated that Catlin

had also lived with her, but that she made him leave more than a month ago because he had

issues with drinking and drugs. Janie stated that she is an older lady and is in a wheelchair,

and that she allowed Haylee to stay with her until Haylee “got [her] feet on the ground.”

Janie indicated that she has never had any problem with Haylee and that Haylee helps her

with things around the house. Janie stated that Haylee had “hunted for a job forever” but

that there were very limited employment opportunities in Lakeview and that Haylee

“doesn’t have a car and that’s very difficult.” Janie stated that Haylee did have an upcoming

interview with a local restaurant. Janie testified that Haylee loves her children and that the

children love her and want to live with her.

       Haylee testified that she has lived with Janie during the entire case and that she takes

care of Janie as payment for letting her stay there. Haylee stated that she has a car and had

attempted to have it repaired with some financial help from DHS, but that it was going to

cost thousands of dollars and was still in the shop. Haylee stated that during the case she

had worked at Goodwill and also at a local factory, but was currently unemployed. She

indicated that she was actively seeking employment and was optimistic about being hired

either at a local restaurant or the factory where she had previously worked. Haylee stated


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that if the children were returned to her they could take the bus to school, and she also

stated that she has a friend who is willing to help her with transportation.

       Haylee acknowledged that she was on probation for a drug charge that occurred in

2011 but said that she was complying with her probation. Haylee also acknowledged some

other legal problems, noting that she had recently been arrested and jailed for a few days for

failing to appear after being cited for having no tags on her vehicle. She also had a pending

court date for driving on a suspended license, but she said she had no additional criminal

charges. Haylee admitted that, on one occasion in April 2016, she smoked marijuana at a

barbeque. This was detected on a random drug screen she submitted to on April 25, 2016.

However, Haylee maintained that she had not used marijuana since then, and this was

confirmed by consistently negative drug tests between that time and the time of the

termination hearing. Haylee tested positive for prescription drugs on a couple of occasions,

but she produced evidence that she had a prescription for amoxicillin and oxycodone from

a local dentist. Haylee stated that she had split with Catlin about two months ago.

       Haylee testified that her bond with her children is very strong and that her children

ask to come home all the time. She asked for more time toward reunification, stating that

she loves her children, that she is a good mother who is capable of taking care of them, and

that her children did not want to be without her. Haylee stated that she and her mother,

Monica Bunch, got along and that Monica has provided a good home for the children.

However, Haylee testified that “I want to provide that home for them.”

       Corrine Steel, a program assistant for DHS, supervised some of the visits between

Haylee and her children. Corrine testified that the children enjoy seeing Haylee and that


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Haylee is great with them. Corrine stated that the children love Haylee, are very bonded

with her, and ask if they are going to live with her.

       DHS caseworker Jennifer Matney testified that Haylee was in compliance with the

case plan during most of the case. Jennifer stated that DHS did an evaluation of Janie King’s

home and that the home was appropriate, although Haylee had been unable to obtain her

own housing.

       Jennifer acknowledged that the children “are definitely bonded to their mom,” but

nonetheless recommended termination of Haylee’s parental rights, citing Haylee’s legal

problems and her lack of employment, transportation, or her own home. Jennifer testified

that the children are adoptable and that their grandmother, Monica Bunch, wanted to adopt

them if Haylee’s parental rights were terminated. Jennifer was confident that Monica would

protect the children, and she thought that Monica adopting the children would be in their

best interest because they would remain with family and keep the family bond. Jennifer

anticipated that the children would continue to have contact with Haylee even if they were

adopted by Monica because Monica is Haylee’s mother and there is “always going to be a

connection there.” Jennifer thought that this was in the children’s best interest.

       In this appeal, Haylee does not challenge the statutory grounds supporting

termination.    Haylee instead argues that the trial court clearly erred in finding that

termination of her parental rights was in the best interest of the children, particularly in light

of the fact that the children were living with their grandmother at the time of the

termination. We agree.




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       In support of Haylee’s argument on appeal, she relies on our decision in Cranford v.

Arkansas Department of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851. In Cranford,

we reversed the termination of both parents’ parental rights pursuant to our holding that the

trial court clearly erred in finding termination to be in the children’s best interest. In that

case, after the child was removed from the parents, he was placed in the custody of his

maternal grandparents. The grandmother testified that she had always played a significant

role in the child’s life and was willing to adopt him, and she acknowledged that the parents

were not presently able to care for the child so the child should remain with her and her

husband. However, the grandmother testified that, whether there was an adoption or

guardianship, she wanted both parents to remain in the child’s life and for there to be a

regular visitation schedule. In reversing the termination order in that case we relied largely

on the custody arrangement, and reasoned:

       This court is certainly aware of the need for certainty, stability, and permanency in a
       child’s life. However, we are unable to subscribe to the idea that termination in this
       case will necessarily provide greater stability in S.C.’s life because he is in the custody
       of his grandparents, who will continue to care for S.C. and presumably be just as
       willing to adopt him at some future time should reunification efforts ultimately fail.
       We do not share DHS’s concern that termination is necessary to ensure that S.C.
       does not “languish in foster care indefinitely,” because he is not in foster care with
       strangers. He has continued in the custody of grandparents in the same place that he
       lived before this case began, and that is where he will remain whether or not his
       parents’ rights are terminated in these proceedings.

       This dependency/neglect case does not present the typical situation where the child
       is in the custody of nonrelative foster parents, or where the foster parents have
       expressed the desire to adopt[.] On the contrary, the custodian/grandmother in the
       present case expressly stated her desire that the child have continued contact with his
       parents as this is in the child’s best interest. While time is of the essence in most
       termination proceedings, it is markedly less so given the factors presented in this case.
       We see little harm in affording both Tiffany and Christopher more time to pursue
       reunification with S.C., and such efforts come with a potential benefit to the child.


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       Under the facts of this case, we conclude that the trial court clearly erred in finding
       that termination of parental rights was in S.C.’s best interest.

Cranford, 2011 Ark. App. 211, at 11−12, 378 S.W.3d at 857 (citations omitted).

       In the present case, as in Cranford, the children are in the custody of their

grandmother. And like Cranford, there is ample evidence that continued contact with their

mother is in the children’s best interest. From the testimony of Janie King, both DHS

employees, and Haylee herself, it is beyond dispute that these children are strongly bonded

with Haylee and would like to return to her custody. Although Haylee was not in a position

to regain custody of the children at the time of the termination hearing, the testimony

showed that Haylee lived in appropriate housing and was trying to find employment.

Haylee had only a single positive drug test for marijuana several months before the

termination hearing and had ended her relationship with the children’s father, who had

consistently tested positive for drugs during the case. Haylee had been complying with the

case-plan requirements, and there was no evidence that she had ever harmed the children.

It appears that the primary reason for termination was Haylee’s lack of financial means, and

we cannot agree that this was a sufficient basis to terminate her rights to her children.

       In DHS caseworker Jennifer Matney’s testimony she expressed the desire for the

children to be adopted by their grandmother, thereby remaining in her custody, and to

continue having contact with their mother. This being so, as in Cranford, there is no urgency

for permanency and stability in this case because, whether or not termination occurs, the

children will remain in the custody of their grandmother in the same place they have lived

since shortly after their removal from Haylee’s custody.         Particularly in light of the

undisputed bond between these children and their mother, we see little harm in affording
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Haylee more time toward reunification, and such efforts come with a potential benefit to

the children. See Cranford, supra. On this record, we hold that the trial court clearly erred

in finding that termination of Haylee’s parental rights was in the children’s best interest.

       Reversed and remanded.

       VIRDEN, WHITEAKER, and MURPHY, JJ., agree.

       GRUBER, C.J., and KLAPPENBACH, J., dissent.

       RITA W. GRUBER, Judge, dissenting. Because I believe the majority’s decision

to reverse this case is contrary to our legislature’s intent in termination-of-parental-rights

cases, I respectfully dissent. Our legislature has made clear that 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 a return to the family home cannot be accomplished in a reasonable

period of time as viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3).

       The majority relies on this court’s decision in Cranford v. Arkansas Department of

Human Services, 2011 Ark. App. 211, 378 S.W.3d 851, in reversing this case. In Cranford,

the maternal grandmother testified that she was willing to adopt the children but that she

would rather “be the grandparent instead of the parent.” Since Cranford, this court has held

that domestic abuse, drug-related issues, and incarceration during the pendency of the case

support a court’s finding of potential harm, even when a child is placed with a relative.

McElwee v. Ark. Dep’t of Human Servs., 2016 Ark. App. 214, at 9–10, 489 S.W.3d 704, 709.

       At the time of the termination hearing in this case, the children had been out of Ms.

Bunch’s care for eighteen months. The court specifically found that Ms. Bunch had not


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“taken the opportunity to obtain her own suitable housing for herself and the children,”

that she was without employment or transportation, and that she continued to “put Catlin

Bridgers first” instead of her children. Ms. Bunch admitted at the termination hearing on

September 14, 2016, that she was currently serving a ten-year probation sentence and that

she had been arrested on September 10, 2016, for failing to appear in court in Ash Flat. She

conceded that she “back-slid” and smoked marijuana while the case was ongoing and that

she continued to have positive drug tests despite having completed drug treatment. Further,

she and Catlin were involved in another domestic incident in April 2016. Catlin shared the

bedroom in Janie King’s home with Ms. Bunch immediately prior to his one-month

incarceration. During Catlin’s incarceration, Ms. King discovered syringes under the bed.

Despite this occurring shortly before the termination hearing and their “split up,” she

testified that she would “speak to Catlin again.” Here, unlike Cranford, the children did not

reside with the maternal grandparent before removal, nor did the grandparent testify at the

termination hearing, much less state that she “wanted to be a grandparent instead of the

parent.” 1

       While I do believe that Ms. Bunch was well bonded with her children, I do not

believe that the court clearly erred in terminating her parental rights. Eighteen months is a

significant period of time when viewed from the children’s perspective, and I do not believe




       1
        Based on findings in the permanency-planning order and the fifteen-month review
order, there were disagreements between Ms. Bunch and the maternal grandmother (foster
parent). Ms. Bunch testified the disagreement had been based on her continued relations
with Catlin.

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that a permanent placement with the grandparent would provide the same permanency for

the children as adoption would.

       None of us has a crystal ball and can determine whether Ms. Bunch will ever become

an appropriate parent. What we do have is a trial judge who has presided over this case for

the entire eighteen months leading up to the termination hearing. We, as appellate judges,

are required to rely on the fact-finder’s credibility determinations based on his or her

evaluation of the witnesses, the testimony, and the child’s best interest. Ross v. Ross, 2010

Ark. App. 497, at 2.

       I see the majority’s decision to continue these children in a state of prolonged

uncertainty and to reject the trial court’s credibility determination as being contrary to our

statutory framework and certainly not in these children’s best interest. See Coleman v. Ark.

Dep’t of Human Servs., 2010 Ark. App. 851, 379 S.W.3d 778; see also Smith v. Ark. Dep’t of

Human Servs., 2017 Ark. App. ___. This trial judge did not clearly err.

       For the above reasons, I respectfully dissent.

       KLAPPENBACH, J., joins.

       Leah Lanford, Arkansas Public Defender Commission, for appellant.

       Andrew Firth, Office of Chief Counsel, for appellee.

       Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.




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