                                      2016 Ark. App. 481


                 reNSAS                COURT OF APPEALS
                                        DIVISION II
                                       No. CV-16-558
                                                Opinion Delivered   OCTOBER 79,2016

STEFANIE BAIR                                   APPEAL FROM THE FAULKNER
                                                COUNTY CIRCUIT COURT
                              APPELLANT         INO.23N-14-554]

V.                                              HONORABLE DAVID M. CLARK,
                                                JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR                        AFFIRMED
CHILDREN
                                APPELLEES


                             DAVID M. GLO\IER, Judge

       Stefanie Bair appeals from the termination of her parentd rights to her two children,

R.B. and D.B. She contends 1) the trial court erred "in refusing to consider the argument

that a court may terminate the parental rights of only one parent based on the [court's]

misapprehension that the applicable statutory provision was unconstitutional," and 2) the

trial court erred in finding it was in the children's best interest to terminate her rights where
                                               'We
the evidence of adoptabiliry was questionable.     affirm.

       The Arkansas Department of Human Services (DHS) exercised an emergency hold

on the children because of a hotline call alleging that Billy Brown, the children's putative

father, had sexually abused R.B. Following a hearing, the children were adjudicated

dependent-neglected by order entered on February 18, 2015. Custody was continued with

DHS, and a goal of reunification with Stefanie was set with a concurrent goal of adoption.

OnJanuary 7, 2016, DHS filed a petition to terminate parental rights. Following a hearing
                                     2016 Ark. App. 481


on the petition, the trial court entered its March 16, 2016 order terminating the parental

rights of both parents. Billy was cleared of the sexual-abuse charges in a criminal trial, but

he was not cleared of those allegations in the DHS case. In addition, a major concern that

contributed    to the termination of Stefanie's     parental rights involved her continued

relationship with Billy throughout the case. Only Stefanie is involved in the instant appeal.

       In terminating parental rights, the trial couft must make two findings by clear               and

convincing evidence: at least one statutory ground must exist, and termination must be in

the best interest of the child. Hamilton v. Arleansa Dep't oJHuman 9erus.,2016 Ark. App.

420; Ark. Code Ann. $ 9-27-341 (Repl. 2015).In making a "best interest" determination,

the trial court must consider two factore: the likelihood that the child will be adopted and

the potential harm to the child if custody is returned to   a   parent. Hamilton, supra; Ark. Code

Ann. $ 9-27-341,. Clear and convincing evidence is such a degree of proof that produces in

the fact-finder a firm conviction regarding the allegation to be established. Hamihon, supra.

Our review of the termination of parental rights is de novo . Iil. Owinquiry         is   whether the

trial court's finding that the disputed fact was proved by clear and convincing evidence                is


clearly erroneous, and we leave to the fact-finder credibiliry determinations. .Id. A finding

is clearly erroneous when, although there is evidence to suppoft      it, we are left with   a   definite

and firm conviction that a mistake has been made. Shafer u. Arkansas Dep't of Human                Sents.,


201,6 Ark.   App.208, 489 S.'W.3d I82.

       In terminating Stefanie's parental rights, the trial court found    as   grounds "subsequent

factors" (Ark. Code Ann. $ 9-27-341(bX:XSXvii)(a)) and "aggravated circumstances" (Ark.
                                    2016 Ark. App. 481


Code Ann. $ 9-27-347 (bX3XBXixXa)). With respect to the "subsequent factors" ground,

the termination order provides in pertinent part,

       Since this case opened, Stefanie Bair has chosen to remain in a romantic relationship
       with the man who sexually abused her daughter. At times during this case, Stefanie
       has testified that she did not believe that Billy molested their daughter. At other
       times, she has testified that she believes her daughter. Stefanie wrote a statement to
       the Faulkner Counry Sheriffs Office inJuly 2015 that she believed that Billy was a
       good father and that he was framed for committing sexual abuse. Stefanie was found
       to have lied to the Court in September 2075 about not having contact with Billy
       Brown, who she had visited in excess of thirty-two (32) times while he was
       incarcerated awaiting trial on charges of raping their daughter. 'When Billy was
       released from jail, he and Stefanie immediately moved in together. Stefanie testified
       at the perrnanency planning hearing in December 2075 that she intended to remain
       in a relationship with Billy. When asked how she could ensure that her children
       would be safe if they were living in the home with Billy, Stefanie testified that her
  '    plan was to "keep a good eye" on them. At the termination hearing, Stefanie testified
       that she continued to live with Billy and that she would keep the children safe by
       putting a lock on their bedroom door and by sleeping in the same bed with her seven
       year old daughter and five year old son.

       There are no additional services that the Court could have ordered or that DHS
       could have offered to remedy the subsequent issues in this case. If Stefanie Bair is in
       a relationship with and living with Billy Brown, the juveniles cannot be returned to
       Stefanie Bair's custody. Returning the juveniles to Stefanie's custody would mean
       returning [R.B.] to the custody of the man who sexually abused her. The Court
       finds that [R.B.l deserves to have a life free from the man who sexually abused her.

       'With respect to the "aggravated
                                        circumstances" ground, the termination order

provides in pertinent part,

       The Court makes a finding that [R.B.] was chronically abused, in that she disclosed
       three different perpetraton of sexual abuse at only six years old. The mother and
       father have both testified that they believe that Phillip Turner, a registered sex
       offender, molested their daughter while he was living in their home. The Court
       further finds that [R.8.] was sexudly abused by her father, Billy Brown; by Phillip
       Turner, a registered sex offender living in the home; and by [DJ, teenage cousin.
                                                                             " will result in
       The Court finds that there is litde likelihood that services to the family
       a successful reunification, as Billy Brown is incapable of remedying the cause of
       removal and because Stefanie Bair continues to be in a romantic relationship with
       Billy, there are no services that could be provided that would result in a successful
       reunification.
                                        2016 Ark. App. 481



          For her fint point of appeal, Stefanie contends the trial court erred in refusing to

consider the argument that a court may terminate the parental rights of only one parent

because      the court mistakenly believed the             applicable statutory provision          was

unconstitutional. While we agree that the trial court had             no basis for   spontaneously

expressing     its view that Arkansas Code Annotated section                g-27-341(cX2XB) was

unconstitutional, we disagree that the court's opinion in that regard provides a basis for

reversal   in this   case.


          After both sides had rested, the trial court heard arguments from Stefanie's counsel

concerning why some of the alleged grounds for termination did not apply to Stefanie and

arguing that the trial court had the option of terrninating Billy's parental rights while leaving

Stefanie's in place. During this colloquy between the trial court and counsel, the trial court

spontaneously expressed its view that Arkansas Code Annotated section 9-27-347 (c)(2XB),

which allows for the termination of only one parent's parental rights, was unconstitutional.

None of the parties made such an argument; the trial court just expressed its unsolicited

opinion. Stefanie now argues that in doing so, the trial court "absolutely foreclosed any

consideration of anything less than the termination of Stefanie's parental rights, including

possibly placing the children with Stefanie's mother, Rebecca Harvey."'We disagree.

          \Mhile it is unclear why the trial court spontaneously expressed its opinion about the

constitutionality of section g-27-341(c)(2XB) when none of the parties had raised such an

issue,   it is abundantly clear that the trial court's termination of Stefanie's parental rights   was

rooted in both statutory grounds set out in the termination order and supported by the facts

and rationale explained therein. The termination order makes no mention of sectiong-27-


                                                   4
                                        2016 Ark. App. 481


3a1(c)(2)@), nor the trial court's position concerning its constitutionality. It is also clear the

trial court's comments from the bench did not factor into its final rationale for ordering the

termination of Stefanie's parental rights, and consequently they cannot provide a basis for

reversal.

           For her remaining point of appeal, Stefanie contends the trial couft erred in finding

it   was   in the children's   best interest   to   terminate her rights "where the evidence of

adoptability was questionable and where there was insufficient evidence of potential harm

to the children if returned to her custody."'We disagree.

           As mentioned previously, in determining       if termination    is   in a child's best interest,

the trial court is to consider the potential for harm       if the child   is returned to the parent's

custody and the likelihood of the child being adopted. Within this point, Stefanie does not

challenge the trial court's finding ofstatutory grounds for termination, but instead challenges

the best-interest finding.'We find no error.

           Regarding adoptability, the trial court had before        it    testimony that fifty-seven

potential families matched the children's characteristics, i.e., two Caucasian siblings, one

who was the victim of sexual abuse and the other having developmental delays; that R.B.

and D.B. were adoptable; that the children had been well-behaved and helpful since

entering foster care; that the foster mother would adopt them henelf if not for her age and

lifestyle; that they had thrived in the foster mother's home and had benefitted from therapies

and services; and that DHS had succeeded in finding families in the past for children similar

to R.B. and D.B.
                                      2016 Ark. App. 481


       As to potential harm,   it   was the   initid   sexual abuse of R.B. by         Billy Brown that

initiated this case. The trial was concerned that Stefanie maintained her relationship with

Billy throughout the case. Her plans for protecting the children if               she and   Billy had been

allowed to retain their parental rights were    as   follows:   she and   Billy would   sleep   in different

rooms; the children would stay with her; she'would lock her bedroom door; and she would

never leave the children alone. Further, the trial court specifically found that Stefanie had

been less than honest with DHS and the court about her continued relationship with Billy

after the abuse allegations had come to light. A parent's past conduct often provides a good

indication of what the future may hold. Painter u. Arkansas Dep't           of   Human $erus.,2013 Ark.

App. 602. The potential for harm was clear.

       Affirmed.

       GraowIN, CJ., and VtnpEN,J.,           agree.


        Tina Bowers Lee, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division,
        for appellant.

        Andrew Firth, Office of Chief Counsel, for appellee.

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