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                    ARKANSAS COURT OF APPEALS
                                         DIVISION IV
                                         No. CV-15-903



                                                     Opinion Delivered   April 13, 2016
BROOKE NEWMAN AND BRENT
NEWMAN                                               APPEAL FROM THE SEBASTIAN
                 APPELLANTS                          COUNTY CIRCUIT COURT,
                                                     FORT SMITH DISTRICT
V.                                                   [NO. JV-13-312]

                                                     HONORABLE ANNIE HENDRICKS,
ARKANSAS DEPARTMENT OF HUMAN                         JUDGE
SERVICES AND MINOR CHILD
                     APPELLEES                       AFFIRMED


                                LARRY D. VAUGHT, Judge

       Appellants Brooke and Brent Newman appeal from the orders entered by the Circuit

Court of Sebastian County terminating their parental rights to their son C.N. (a member of

the Cherokee Nation 1 who was born on July 7, 2012) and denying their posthearing motion

to set aside the termination decision or for new trial. The Newmans raise three issues on

appeal. They first argue that the trial court abused its discretion in denying their motion to

dismiss the termination petition because appellee, the Arkansas Department of Human

Services (DHS), filed the petition outside the fifteen-month timeline required by Arkansas

Code Annotated section 9-27-359(c) (Repl. 2015). Second, they argue the trial court clearly

erred in finding that clear and convincing evidence supported the termination decision. And

finally, they argue that the trial court abused its discretion in denying their motion to set aside


       1
        Because C.N. is of Cherokee Indian descent, the Indian Child Welfare Act, 25 U.S.C.
§ 1901 et seq., applies.
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the termination decision or for new trial based on the trial court’s failure to enter a timely

termination order as required by Arkansas Code Annotated section 9-27-341(e). We affirm.

          On May 19, 2013, DHS obtained a 72–hour hold on C.N. after medical professionals

reported to police that he had a one-week-old broken arm and that the Newmans failed to

provide a sufficient account as to how the injury was caused or why they delayed in seeking

medical treatment. DHS filed a petition for emergency custody on May 28, 2013, which was

granted that same day. Following an adjudication hearing, an order finding C.N. dependent-

neglected was entered on September 10, 2013. In the adjudication order, the court credited

the testimony of Dr. Chris Bell and registered nurse Jeanne Losurdo, who testified that the

Newmans allowed C.N. to suffer through significant pain for several days before seeking

medical attention for him and that C.N. would not have been pain free and using his broken

arm in the manner described by the Newmans. The trial court also noted evidence of domestic

violence, much of which occurred in the presence of C.N.; violation of no-contact orders and

orders of protection; lying to police officers; the Newmans’ volatile relationship; and Brent’s

criminal history involving assault and battery of household members. The court set the goal

for the case as reunification and ordered the Newmans to visit C.N.; attend marriage

counseling; obtain and maintain stable housing, employment, and transportation; remain drug

and alcohol free; submit to random drug testing; undergo drug-and-alcohol assessments; and

submit to psychological evaluations. Brent was ordered to complete a domestic-violence

course.

          A permanency-planning hearing was held on April 30, 2014, wherein the court found

that it was not in C.N.’s best interest to return to the custody of his parents because it would


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place him at risk of harm. The trial court also found that concurrent goals of reunification and

adoption were appropriate.

       A fifteen-month review hearing was held August 24, 2014. While the trial court found

that the Newmans had completed many of the requirements of their case plan, it further found

that C.N. was in need of DHS services and that returning him to the custody of his parents

was contrary to his welfare. The trial court noted that the representative of the Cherokee

Nation and C.N.’s attorney ad litem agreed that C.N. should not be returned to the Newmans

at that time. The court also pointed out that DHS had expressed an intent to file a petition to

terminate the Newmans’ parental rights to C.N. The trial court continued the concurrent goals

of reunification and adoption.

       On January 12, 2015, DHS filed a petition to terminate the Newmans’ parental rights,

alleging three grounds: (1) the failure-to-remedy ground pursuant to Arkansas Code Annotated

section 9-27-341(b)(3)(B)(i)(a); (2) the subsequent-factors ground pursuant to section 9-27-

341(b)(3)(B)(vii)(a); and (3) the aggravated-circumstances ground pursuant to section 9-27-

341(b)(3)(B)(ix)(a)(3)(A).

       The termination hearing was held on March 13, 2015. Brent Newman testified his

relationship with Brooke was great, although he conceded that they had gone through some

“rocky points” in the past and that they both “ha[d] tempers.” He admitted that he had been

convicted of battering Brooke, that she had called the police “quite a few times” accusing him

of mistreating her, and that he had been arrested three times following Brooke’s calls to the

police. He described two of his arrests. One arrest occurred after he and Brooke used a

baseball bat to destroy each other’s belongings. Another occurred on Christmas Eve 2014. He


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said that he had been asleep when he was told that someone was knocking at his door and

looking into the window. He opened the door, identified himself to the officer as “Puddin

Tane,” and turned around to go back into his apartment. He said that the officer assaulted

him, grabbing him from behind and ripping his shirt. Brent denied drinking alcohol that night.

       As for the incident that gave rise to DHS’s custody of C.N., Brent testified that he did

not cause C.N.’s arm injury. However, he stated that approximately one week before they took

C.N. to the doctor, he (Brent) rolled over on the floor to get up, and his “knee was on” C.N.’s

arm.

       Brent conceded that he was an alcoholic and had a problem with methamphetamine;

however, he added that he last drank alcohol and used meth in October 2014. He further

testified that he had maintained housing for the past year and had maintained employment for

the past two years. He stated that he attended domestic-violence classes, regularly attended

AA/NA meetings, completed drug-and-alcohol assessments, attended individual and marriage

counseling, had a psychological evaluation, and attended parenting classes. He stated that he

visited C.N. regularly and that the visitations had gone well.

       Brooke testified that her six-year relationship with Brent suffered from problems

because of Brent’s alcohol problem and his temper. She admitted that she had told the

caseworker that she feared Brent when he drank alcohol and that she wanted “out of the

marriage” in November 2014. However, according to Brooke, since that time things with

Brent had improved. Brooke stated that she did not know how C.N.’s arm was broken and

that she did not believe that Brent intentionally broke C.N.’s arm. She admitted that she and

Brent should have realized that it was broken.


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       Brooke conceded that she was a drug addict. She said that during the DHS case she

and Brent used methamphetamine, she smoked marijuana, and they had positive drug tests.

She also stated that Brent attempted to defeat drug tests. However, she said that she attended

parenting classes, a drug assessment, AA/NA meetings, a psychological evaluation, and

individual and marriage counseling. She also said that she attended every visit with C.N.

       Several Fort Smith police officers testified at the termination hearing. Officer Matt

McHam testified that on April 9, 2014, he responded to a disturbance call made by the

Newmans’ neighbor. McHam stated that Brooke reported that she and Brent had gotten into

a fight about a sandwich and that both of them used a baseball bat to destroy each other’s

personal items. McHam said that he arrested both parties. Officer Andrew Adams testified

that on April 10, 2014, Brent wanted to file charges against Brooke for throwing a potted plant

through the window of their apartment. On May 16, 2014, Officer Jeffrey Lum responded to

a disturbance call placed by Brent. Brent reported that Brooke had thrown a rock through the

window after they had gotten into an argument.

       The fourth and final police officer to testify was Nathan Sosebee. He said that on

December 24, 2014, he responded to a disturbance call made by the Newmans’ neighbor.

Sosebee testified he knocked on the Newmans’ apartment door, and Brent aggressively

opened it. Sosebee said that Brent and Brooke were yelling and cursing at him. Sosebee asked

for Brent’s name, to which Brent responded, “Puddin Tane.” Brent then said, “F*** you,”

turned around, and tried to go back into the apartment. Sosebee grabbed Brent’s wrist and

told him he was under arrest. Brent pulled away, and Sosebee grabbed Brent’s shirt, which

ripped. Sosebee testified that Brent’s breath smelled strongly of alcohol and that he believed


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that Brent was intoxicated. Sosebee, who had his Taser out, said that he and Brent argued back

and forth before Brent eventually exited the apartment, provided his name, and was arrested.

A portion of the incident was recorded by the Taser, and the recording was played at the

hearing.

       DHS caseworker Rebecca Newton said that DHS had offered parenting classes,

psychological evaluations, counseling, drug-and-alcohol assessments, random drug testing,

hair-follicle testing, marriage counseling, and visitation. Newton testified that Brooke was

cooperative with drug testing and admitted her meth and marijuana use. Brent was not

cooperative. Newton stated that he shaved his body to avoid hair-follicle testing and that once

he provided a cold urine sample. Newton testified that the Newmans both tested positive for

meth in April or May 2014 and that Brent tested positive for meth in February 2015.

       Newton testified that DHS recommended that the Newmans’ parental rights to C.N.

be terminated. She said that C.N. was removed from their custody as a result of medical neglect

and failure to protect and that those situations had not been remedied. She said that neither

party took full responsibility for C.N.’s injury. Newton also had concerns about the Newmans

due to the complaints made by their neighbors, Brent’s temper, Brent’s and Brooke’s violence

toward each other, their aggressive response to the police in December 2014, and their

continued drug-and-alcohol use. She noted that they were not honest with their therapist

because they denied having drug-and-alcohol addictions. Newton believed that the Newmans

represented a serious risk of harm to C.N. because he could get caught in the “crossfire.” She




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lso testified that C.N. was adoptable and that someone had expressed an interest in adopting

him. 2

         Tad Teehee, the tribe representative for the Cherokee Nation, testified that he had

attended every hearing in the case and had interacted with the Newmans. He stated that DHS

had provided reasonable and active services to the Newmans in an effort to give them the

greatest chance at having C.N. returned safely to them. He said that after twenty-two months,

it was his opinion that C.N. could not safely return to the Newmans and that he would likely

suffer serious emotional or physical damage if returned to them. Teehee cited the Newmans’

very volatile relationship, their drug use, Brent’s angry temper, and the fact that they had not

learned anything in their classes. He stated that the Taser video demonstrated their inability to

make competent and appropriate decisions. He also stated that C.N. was adoptable and that

the Newmans’ parental rights should be terminated.

         Therapist Joanie Henry testified that she had provided individual and marriage

counseling to the Newmans. Henry acknowledged that the Newmans had an abusive

relationship that was triggered by drugs and alcohol. She said that Brooke and Brent did not

know how C.N.’s arm was broken. However, it was her belief that the Newmans had made

progress, individually and in their relationship, as a result of counseling. She further testified

that she did not believe that the Newmans posed a serious risk of harm to C.N.

         At the conclusion of the hearing, the trial court orally granted the termination petition.

No termination order was entered. On July 8, 2015, the Newmans filed a motion to set aside


       Lydia Dorr testified that she had been C.N.’s foster parent since May 20, 2014, that
         2

C.N. was a great child, that she had a strong bond with him, and that she wanted to adopt
him.
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the termination decision or for new trial. They argued that because the trial court did not enter

a termination order within thirty days of its oral termination decision, the decision should be

set aside to prevent a miscarriage of justice pursuant to Arkansas Rule of Civil Procedure 60(a),

or alternatively, they should receive a new trial because the irregularity in the proceedings

prevented them from having a fair trial pursuant to Arkansas Rule of Civil Procedure 59(a)(1).

       On August 12, 2015, the trial court entered an order terminating the Newmans’

parental rights. The trial court found beyond a reasonable doubt that DHS had proved all

three grounds alleged, that termination was in C.N.’s best interest, that C.N. was adoptable,

and that continued custody of C.N. by his parents would result in serious physical or emotional

harm. The court found that DHS had made active efforts to provide remedial services and

rehabilitative programs to prevent the breakup of the Indian family and that a Cherokee

Nation representative had been present throughout the case and had provided the necessary

expert testimony to support the termination decision.

       Two weeks later, on August 26, 2015, a hearing was held on the Newmans’ motion to

set aside the termination decision or for new trial. At the hearing, Brooke testified that on June

10, 2015, Brent was arrested, and was still incarcerated, for assaulting and battering her. She

said that she left her job the next day due to emotional stress. On August 28, 2015, the trial

court entered an order denying the Newmans’ motion to set aside the termination decision or

for new trial. This appeal followed.

       The Newmans’ first point on appeal challenges the trial court’s denial of their motion

to dismiss the termination petition. Our standard of review for the denial of a motion to

dismiss is whether the trial court abused its discretion. Ark. Dep’t of Human Servs. v. Fort Smith


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Sch. Dist., 2015 Ark. 81, at 5, 455 S.W.3d 294, 298. The Newmans contend that the trial court

abused its discretion in denying their motion because DHS untimely filed it in violation of

Arkansas Code Annotated section 9-27-359(c), which provides: “If the court determines the

permanency goal to be adoption, the department shall file a petition to terminate parental

rights no later than the fifteenth month of the child’s entry into foster care.” Based on this

language and the undisputed fact that the termination petition was filed after C.N.’s fifteenth

month in foster care, the Newmans contend that the trial court was divested of subject-matter

jurisdiction to hear the termination petition.

       A similar argument was made and rejected by our court in Hill v. Ark. Dep’t of Human

Servs., 2012 Ark. App. 108, 389 S.W.3d 72. There, the appellant argued that the trial court erred

in denying her motion to dismiss for failing to hold the termination hearing within ninety days

after the filing of the termination petition in violation of Arkansas Code Annotated section 9-

27-341(d). The appellant argued that because of the violation, the trial court lost jurisdiction

to hear the petition after the ninety-day period had expired. Id. at 4–5, 389 S.W.3d at 74–75.

We disagreed, holding that while the applicable statute spoke in mandatory terms, a loss of

jurisdiction did not follow because the General Assembly did not provide a sanction for an

untimely filing and because there was no evidence that such a result was intended. Id. at 5, 389

S.W.3d at 75. Accordingly, we held that the failure of the trial court to hold the termination

hearing within ninety days of the filing of the petition did not deprive the trial court of

jurisdiction. Id. at 6, 389 S.W.3d at 75. We also concluded that reversal was not appropriate in

the absence of a showing of prejudice resulting from the delay. Id., 389 S.W.3d at 75.




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       We hold that the same analysis applied to section 9-27-341 in Hill applies to section 9-

27-359(c). Although section 9-27-359(c) is mandatory, the General Assembly did not provide

a sanction for the failure to file a termination petition within the prescribed time, and there is

no statutory language that a loss of jurisdiction follows from an untimely filing. Further, the

Newmans failed to demonstrate prejudice suffered because of the delay in the filing of the

termination petition. To the contrary, the delay was a benefit to the Newmans because they

were afforded an additional five months to work the case plan and receive DHS services.

Accordingly, we hold that the trial court did not abuse its discretion in denying the Newmans’

motion to dismiss.

       For their second argument, the Newmans challenge the sufficiency of the evidence

supporting the trial court’s termination decision. We review termination-of-parental-rights

cases de novo. Ford v. Ark. Dep’t of Human Servs., 2014 Ark. App. 226, at 2, 434 S.W.3d 378,

380. 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. Id., 434 S.W.3d at 380 (citing Ark. Code Ann. § 9-27-341). In making a best-interest

determination, the trial court is required to consider two factors: (1) the likelihood that the

child will be adopted, and (2) the potential of harm to the child if custody is returned to a

parent. Id., 434 S.W.3d at 380. Adoptability is not an essential element but is rather a factor

that the trial court must consider. Id., 434 S.W.3d at 380. Likewise, the potential harm to the

child is a factor to be considered, but a specific potential harm does not have to be identified

or proved by clear and convincing evidence. Id., 434 S.W.3d at 380. The potential-harm




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analysis is to be conducted in broad terms. Id., 434 S.W.3d at 380. The best-interest finding

must be supported by clear and convincing evidence. Id., 434 S.W.3d at 380.

       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. Id., 434 S.W.3d at 380. The

appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear

and convincing evidence is clearly erroneous. Id., 434 S.W.3d at 381. Credibility determinations

are left to the factfinder, here the trial court. Id., 434 S.W.3d at 381.

       The trial court found that DHS met its burden of proving all three statutory grounds

alleged in the termination petition. Only one ground is necessary to terminate parental rights,

Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 345, 285 S.W.3d 277, 282 (2008), and we

hold that the trial court did not clearly err in finding that DHS proved the failure-to-remedy

ground. C.N. had been out of the Newmans’ home for twenty-two months and had been

adjudicated dependent-neglected. The trial court found that despite the services provided by

DHS, the Newmans had not remedied the conditions that caused removal of the child. The

trial court found that C.N.’s injury was caused by a violent act and not someone “roll[ing] over

on th[e] child.” The evidence demonstrated that the parties’ pattern of domestic violence

continued. There were four calls to police reporting the parties’ violent behavior. As a result,

Brent was arrested twice and Brooke was arrested once. The Taser video, which the trial court

specifically referenced in its order, demonstrated their continued violent behavior and

inappropriate decision making. After the termination hearing, Brent had assaulted Brooke

again and remained incarcerated for that offense. The parties’ pattern of drug use and Brent’s




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alcohol use continued. Finally, there was evidence that the parties failed to accept responsibility

for C.N.’s injury.

       This same evidence supports the trial court’s finding that termination of the Newmans’

parental rights was in C.N.’s best interest. There was evidence that C.N. was adoptable. And

we cannot say that the trial court clearly erred in finding that the combination of the long-

standing pattern of physical abuse and substance abuse created an environment that posed a

serious and unreasonable risk of harm to the health and safety of C.N. A parent’s past behavior

is often a good indicator of future behavior. Ford, 2014 Ark. App. 226, at 3, 434 S.W.3d at 381.

       The Indian Child Welfare Act, 25 U.S.C. § 1912(f), provides in pertinent part that

       [n]o termination of parental rights may be ordered in such proceeding in the absence
       of a determination, supported by evidence beyond a reasonable doubt, including
       testimony by qualified expert witnesses, that the continued custody of the child by the
       parent or Indian custodian is likely to result in serious emotional or physical damage to
       the child.

Thus, in this case it must also be shown by proof beyond a reasonable doubt that continued

custody with the Newmans is likely to result in serious emotional or physical damage to their

child. Burks v. Ark. Dep’t of Human Servs., 76 Ark. App. 71, 76, 61 S.W.3d 184, 187 (2001).

       DHS met its burden under section 1912(f). In its termination order, the trial court

stated that DHS had proved its case “beyond a reasonable doubt.” Moreover, the court found

that the Cherokee Nation tribe representative testified that continued custody by the

Newmans would result in serious physical or emotional harm to C.N. and that DHS made

active efforts to provide remedial services and rehabilitative programs to prevent the breakup

of the Indian family.




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       We note that the Newmans’ challenge to the sufficiency of the evidence seeks to have

our court reweigh the evidence. They contend that they did assume responsibility for C.N.’s

injury, that not all of their encounters with law enforcement resulted in arrests or convictions,

that the Taser video showed that Brent did not attempt to interfere with the officer, that the

findings of violence were based on outdated information, that the drug-test results established

that the Newmans had not used drugs since October 2014, and that their counselor opined

that they had made progress. However, we cannot reweigh the evidence. Credibility

determinations are left to the trial court. Ford, 2014 Ark. App. 226, at 2, 434 S.W.3d at 381.

For all of these reasons, we hold that the trial court did not clearly err in terminating the

Newmans’ parental rights to C.N.

       For their final argument, the Newmans contend that the trial court abused its discretion

in denying their motion to set aside the termination order under Arkansas Rules of Civil

Procedure 59, or alternatively, for a new trial under Rule 60. Their motion was based on the

trial court’s failure to enter a timely termination order as required by Arkansas Code Annotated

section 9-27-341(e), which provides that “[a] written order shall be filed by the court . . . within

thirty (30) days of the date of the termination hearing . . . .” There is no dispute that the

termination order was not filed within thirty days of the termination hearing. The Newmans

contend that the delay constituted either an irregularity in the proceedings that prevented them

from receiving a fair trial or a miscarriage of justice.

       We review the denial of motions to set aside judgments pursuant to Rule 59 and

motions for new trial pursuant to Rule 60 under an abuse-of-discretion standard. Jones v. Double

“D” Properties, Inc., 352 Ark. 39, 48, 98 S.W.3d 405, 410 (2003) (Rule 60 standard of review);


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Nobles v. Tumey, 2010 Ark. App. 731, at 12, 379 S.W.3d 639, 647–48 (Rule 59 standard of

review).

       The record reveals no explanation for the five-month delay between the oral decision

handed down at the termination hearing and the trial court’s entry of the termination order.

The violation of the time constraint set forth in section 9-27-341(e) is, arguably, an irregularity

in the proceeding. And clearly, the best practice would have been for the trial court to timely

enter its termination decision.

       Nevertheless, there is no evidence in this case that the trial court’s failure to timely file

the termination order had the effect of making the termination proceeding unfair or that it

constituted a miscarriage of justice. The timing of the filing of the termination order had no

effect on the termination proceeding whatsoever. The Newmans received a fair opportunity

to litigate their substantial rights. And the Newmans failed to present any evidence that in the

five months following the termination hearing they improved their positions in regard to the

case plan. To the contrary, the only evidence in the record of the Newmans’ posthearing status

was that they had regressed—Brent assaulted and battered Brooke again, he was incarcerated,

and she was unemployed. Accordingly, we hold that the trial court did not abuse its discretion

in denying the Newmans’ motion to set aside the termination order or for new trial.

       Affirmed.

       ABRAMSON and GRUBER, JJ., agree.

       Depper Legal Services, PLC, by: Robert L. Depper III, for appellants.

       Jerald A. Sharum, County Legal Operations, for appellee.

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


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