                                     Cite as 2017 Ark. App. 484


                   ARKANSAS COURT OF APPEALS
                                           DIVISION II
                                          No.   CV-17-330


THOMAS G. WATSON                                 Opinion Delivered:   September 27, 2017

                APPELLANT APPEAL FROM THE SEBASTIAN
                           COUNTY CIRCUIT COURT,
V.                         FORT SMITH DISTRICT
                           [NO. 66FJV-14-9]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE ANNIE HENDRICKS,
CHILD                      JUDGE
                 APPELLEES
                           AFFIRMED


                              DAVID M. GLOVER, Judge

       Thomas Watson appeals the Sebastian County Circuit Court’s order terminating his

parental rights to his daughter, J.W., born September 13, 2006. 1 He argues the trial court

erred in terminating his parental rights because the Arkansas Department of Human Services

(DHS) failed to prove termination was in J.W.’s best interest. We affirm.

       In January 2014 DHS filed a petition for emergency custody and dependency-neglect

on J.W. and J.R.1. 2 A seventy-two-hour hold was placed on the children after Autumn

Watson (J.W.’s mother) and Jerry Rogers (Autumn’s boyfriend) were arrested on various

drug charges and a child-endangerment charge at the home where they lived together.


       1
        The parental rights of J.W.’s mother, Autumn Watson, were also terminated in this
order as to J.W. and J.W.’s half-siblings, J.R.1 and J.R.2, but she is not a party to this appeal.
       2
           J.R.2 was not yet born.
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Watson was identified as J.W.’s father, but his address was unknown. An ex parte order

granting DHS custody was entered on January 6, 2014. A probable-cause order was filed

on January 24, 2014, continuing custody of the children with DHS; Watson was not present

at the hearing, but the order stated it was believed he was on parole and living in Fort Smith,

Arkansas. Watson’s mother, Melissa Watson, was present at the probable-cause hearing,

and DHS was directed to explore the appropriateness of placing the children with her as a

temporary placement option. 3

       The children were adjudicated dependent-neglected in an order filed April 9, 2014.

Watson was present at this hearing, having been transported to the hearing from the

Sebastian County Adult Detention Center. In that order, the circuit court noted Watson’s

extensive criminal record, as well as the fact he was a fugitive from justice at the time of

J.W.’s removal from Autumn. The circuit court refused to award Watson visitation due to

his incarceration; ordered Watson to notify DHS when he was released from incarceration

and to provide his contact information; and directed Watson to resolve all criminal charges

and comply with the terms of his criminal sentences.

       In a review order filed on August 19, 2014, the circuit court noted Watson was in

prison on a parole revocation. That order instructed Watson to comply with the rules at

the facility where he was housed so that he did not incur disciplinary actions that prolonged

incarceration; to notify DHS upon his release so a staffing could be scheduled to assess his



       3
        Autumn was still married to Watson; because they were married, Watson was named
as J.R.1’s legal father although Autumn identified Rogers as J.R.1’s biological father because
Rogers had not established paternity at that time.
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need for services; to avail himself of all self-help services during incarceration; and to comply

on release with all terms and conditions of his release. The circuit court ordered Watson to

have no contact with J.W. until approved by DHS following a staffing.

       A second review hearing was held on August 20, 2014, and in an order filed October

29, 2014, the circuit court found that the juveniles had begun a trial home placement with

Autumn Watson on June 19, 2014, the children were doing well in that trial placement,

and it was in their best interest to return custody to Autumn effective August 20, 2014.

Watson was incarcerated at the time of this review hearing. The circuit court ordered him

to have no contact with J.W. until approved by DHS; to remain clean and sober; to submit

to random drug screens; to comply with the terms of his criminal sentence; and to comply

with the terms and conditions of his release from incarceration.

       A second petition for emergency custody and dependency-neglect was filed on

January 26, 2015, after custody had been returned to Autumn. 4 In this petition, Watson,

who was still married to Autumn, was stated to be J.W.’s father and believed to be the legal

father of J.R.1 and J.R.2. The affidavit attached to the petition alleged that the three

children were removed from Autumn’s custody on January 21, 2015, on a seventy-two-

hour hold because she allowed Rogers to reside with her in contravention of court orders,

as well as Michael Smith, a parolee who was wanted in connection with a stabbing and

robbery in Oklahoma, and because drug paraphernalia and unmarked pill bottles were in



       4
        J.R.2 was born on June 10, 2014. Rogers was alleged to also be J.R.2’s biological
father. Genetic testing revealed Rogers is, in fact, the biological father of both J.R.1 and
J.R.2.
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the house. An ex parte order granting emergency custody to DHS was entered the same

day. A probable-cause order was filed on March 13, 2015, continuing custody of the

juveniles with DHS, noting that the whereabouts of Watson were unknown and that

Watson was still legally married to Autumn and was therefore the legal father of all three

children, with Jerry Rogers being the putative father of J.R.1 and J.R.2. A review hearing

was held on July 8, 2015, continuing custody with DHS; the goal of the case continued to

be reunification with Autumn, with a concurrent goal of adoption. The parents were

ordered to obtain and maintain stable housing, employment, income, and transportation; to

submit to random drug screens; to get clean and sober and remain so; to notify DHS of any

significant changes or events; to resolve any outstanding criminal matters; and to keep DHS

apprised of current contact information. The circuit court found that Watson had not

complied with the case plan or with prior court orders, and it refused to allow him contact

with J.W. until he appeared before the court and was assessed for services.

       A permanency-planning hearing was held on December 2, 2015. In an order filed

on May 18, 2016, the circuit court continued custody with DHS and changed the goal of

the case to adoption. Watson was not present at this hearing; the circuit court noted he had

not complied with the case plan or with prior court orders.

       A petition for termination of parental rights was filed on May 4, 2016. As for grounds

to terminate parental rights as to Watson, it was alleged that (1) as a noncustodial parent,

and despite a meaningful effort by DHS to rehabilitate him and correct the conditions that

prevented J.W. from being safely placed in his home, the conditions had not been remedied;

(2) Watson had abandoned J.W.; (3) other factors arose subsequent to the filing of the
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petition for dependency-neglect that demonstrate the placement of J.W. in Watson’s

custody was contrary to her health, safety, and welfare; (4) Watson had been sentenced in a

criminal proceeding for a period of time that would constitute a substantial period of J.W.’s

life; and (5) Watson had subjected J.W. to aggravated circumstances, as there was little

likelihood that services to the family would result in a successful reunification. It was further

alleged that it was in the best interest of J.W. for parental rights to be terminated.

       A review hearing was held on May 18, 2016; Watson was present, having been

transported from the Arkansas Department of Correction for the hearing. By agreement of

the parties, Watson and his attorney were served with copies of the petition for termination

in open court and waived all further service of process. The review order stated that the

goal of the case was adoption, noting Watson had been incarcerated off and on throughout

the pendency of the case, and during the times of his release, his whereabouts would remain

unknown until his next arrest; Watson had not complied with the case plan or court orders

when he was not incarcerated; and the three children were in a kinship placement with

J.W.’s paternal grandfather.

       The circuit court entered an order on January 25, 2017, terminating the parental

rights of Watson, Autumn Watson, and Rogers. As to Watson, the circuit court granted

termination of his parental rights on all five bases alleged in DHS’s petition for termination

of parental rights. As to best interest, the circuit court found the children were adoptable

and would be at risk of physical and psychological harm if returned to Watson due to his

long periods of incarceration, multiple convictions, long-standing criminal abuse, and/or

criminal activity. Furthermore, the circuit court found Watson had failed to show any
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inclination or ability to develop a lifestyle that would provide safety or stability for a child;

he had not had any significant contact with J.W. in years; and there was no evidence he had

appropriate housing, employment, income, or transportation.

       Melissa Dancer, the primary caseworker, testified at the termination hearing. She

stated that Watson was incarcerated when the children were first taken into DHS custody,

and while he had been incarcerated on several occasions during the case, she had “absolutely

no interaction” with him during the times he was out of prison because he never contacted

her; and she was unaware of any evidence Watson could be successfully reunified with J.W.

during a reasonable period of time if provided with additional time or services. Dancer

testified J.W. would be at risk of potential harm if returned to Watson’s custody due to his

criminal history and the activities in which Watson engaged on release from prison. She

further expressed that she believed J.W. was adoptable; that all three children were placed

together; and that the foster parents had stated a desire to adopt all three children had been

if they became available. Dancer testified J.W. never asked her for visits with Watson.

       Watson testified that he was currently in prison on a parole violation, but he was

“flattening [his] time out” at the end of November 2017. He asserted that while he was

out of prison, he had contact with J.W. “all the time”; that he paid child support, just not

through the court, as he was not legally obligated to pay child support because he was still

married to Autumn; that he was unable to provide for J.W. while he was incarcerated; but

that when he got out of prison, his plans were to finish his degree, finish barber college, and

obtain his barber license. Watson said he knew he had made mistakes, but he believed it



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was in J.W.’s best interest for his parental rights not to be terminated and for the children

to be placed with his family. 5

                                     Sufficiency of Evidence

       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 children. Norton v.

Arkansas Dep’t of Human Servs., 2017 Ark. App. 285. 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 juveniles will be adopted and of the potential harm

caused by returning custody of the children to the parent. Id. Each of these requires proof

by clear and convincing evidence, which is the degree of proof that will produce in the

finder of fact a firm conviction regarding the allegation sought to be established. Id.

       Appellate review of termination-of-parental-rights cases is de novo, and our inquiry

on appeal is whether the circuit court’s finding that the disputed fact was proved by clear

and convincing evidence is clearly erroneous. Wallace v. Arkansas Dep’t of Human Servs.,

2017 Ark. App. 376, ___ S.W.3d ___. 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. In resolving the clearly erroneous

question, a high degree of deference is given to the circuit court, as it is in a far superior

position to observe the parties before it and to judge the credibility of witnesses. Id.


       5
        During closing arguments, DHS counsel clarified that Watson’s parents were the
foster parents of all three children, but they did not have custody of the children.


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       Watson does not contest the grounds found by the circuit court for termination of

his parental rights, nor does he challenge the adoptability aspect of the best-interest analysis.

He challenges only the potential-harm finding. The circuit court was not required to find

that actual harm would occur if the child was returned to the parent, nor was it required to

affirmatively identify a potential harm. Miller v. Arkansas Dep’t of Human Servs., 2017 Ark.

App. 396, ___ S.W.3d ___. Evidence regarding potential harm must be viewed in a

forward-looking manner and considered in broad terms; past behavior may be considered

as a predictor of potential harm that may likely result if the child were returned to the

parent’s care and custody. Wallace, supra.

       Watson cites Cranford v. Arkansas Department of Human Services, 2011 Ark. App. 211,

378 S.W.3d 851, in support of his argument that the circuit court erred in finding J.W.

would suffer potential harm if returned to him. However, there are factual differences

between the present case and Cranford.

       In Cranford, the maternal grandparents had custody of the child, and the grandmother

testified she wanted the child to have continued contact with his parents, as she believed

this was in his best interest. The parents in Cranford were making strides toward becoming

better parents. Here, the paternal grandparents did not have custody of J.W.; rather, they

were her foster parents, and they had expressed an interest in adopting J.W. and her half-

siblings. Furthermore, unlike the parents in Cranford, Watson was not making progress in

becoming a better parent for J.W., as evidenced by his lack of involvement during the

pendency of this case. At the termination hearing, Watson was still incarcerated and would

remain in prison until at least November 2017. Furthermore, one of the bases on which
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the circuit court terminated Watson’s parental rights was that he had subjected J.W. to

aggravated circumstances; specifically, there was little likelihood that services to the family

would result in a successful reunification. Watson did not appeal this ground to support

termination of his parental rights.

       Watson’s case is more akin to Brumley v. Arkansas Department of Human Services, 2015

Ark. 356. As in Brumley, Watson has been incarcerated for much of J.W.’s life, and other

than his own self-serving testimony, there was no evidence Watson had a relationship with

his daughter. As in Brumley, the stability and reasonable hope of reunification found in

Cranford is clearly lacking in the facts of the present case. Permanency is the objective of

termination proceedings, and it cannot be lightly discounted. Brumley, supra. This evidence

of potential harm, coupled with the circuit court’s unrefuted finding that J.W. is adoptable,

supports the circuit court’s ruling that termination of Watson’s parental rights is in J.W.’s

best interest.

       Affirmed.

       VIRDEN and MURPHY, 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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