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                 ARKANSAS COURT OF APPEALS
                                         DIVISION II
                                        No. CV-16-521

                                                 Opinion Delivered: October   26, 2016
COURTNEY HOLMES
                               APPELLANT
                                                 APPEAL FROM THE BENTON
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. 04JV-2015-47-3]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR
CHILDREN                                         HONORABLE THOMAS SMITH,
                                                 JUDGE
                                APPELLEES
                                                 AFFIRMED


                                BART F. VIRDEN, Judge

        The Benton County Circuit Court terminated the parental rights of appellant

 Courtney Holmes to her children, K.R.H. (DOB: 10-4-2007) and K.M.H. (DOB: 3-13-

 2009).1 On appeal to this court, Holmes argues that the evidence supporting the termination

 was insufficient under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901

 et seq. We affirm.

                                   I.     Procedural History

        In January 2015, the Arkansas Department of Human Services (DHS) filed a petition

 for emergency custody and dependency-neglect concerning Holmes’s children. In an

 affidavit attached to the petition, family service worker Jessica Thompson attested that on

 January 18, 2015, DHS received a call from the Siloam Springs Police Department to report


        1
         The trial court also terminated the rights of the children’s father, John Holmes, but
 he is not a party to this appeal.
                                Cite as 2016 Ark. App. 495

that Holmes had rear ended another vehicle with the children in the car and that she had

been arrested for driving while intoxicated, endangering the welfare of a minor, and reckless

driving. Holmes had admitted using methamphetamine earlier that morning. In addition,

Thompson learned that the police had been dispatched to Holmes’s residence the previous

day, January 17, for a welfare check because the children had been seen playing in the street

with no adult supervision. It was reported that Holmes appeared to be under the influence

in that she had stumbled and fallen against a wall. Also, she had not known where her

children were but had thought that a friend was watching them. Thompson also learned

that the police encountered Holmes earlier on January 18 after Holmes had reported a

burglary at her residence. While an officer was speaking with Holmes, K.R.H. walked up

with a hypodermic syringe and said that K.M.H. had found it in their backyard. The officer

noted that Holmes had appeared to be under the influence. Thompson’s affidavit also

indicated that there had been several previous investigations on the family but that all the

allegations had been found unsubstantiated; however, there was an ongoing investigation

into sexual abuse of K.M.H. by her father, John.

       On January 22, 2015, the trial court entered an ex parte order for emergency custody.

In a probable-cause order, the trial court noted that the ICWA applied and that the parties

had stipulated to probable cause. The court ordered Holmes to submit to a drug assessment

and drug testing, complete parenting classes, attend “HELP” for parents with kids in foster

care, and maintain a calendar of her activities. The trial court ordered that there be no

contact between John and his children.




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       In March 2015, the trial court adjudicated the children dependent-neglected due to

neglect and abuse. A review order entered in June 2015 indicated that Holmes had complied

with the case plan by attending inpatient drug treatment. Holmes was ordered to, among

other things, submit to random drug testing, obtain a drug assessment, and complete

inpatient/outpatient drug treatment. Another review order was entered in September 2015

in which the trial court found that Holmes had partially complied with the case plan and

noted that DHS had provided services, including a substance-abuse evaluation, random drug

testing, substance-abuse treatment, counseling, parenting classes, foster placement,

community-resource referrals, visitation, and medical/dental services. On November 5,

2015, DHS filed a petition for termination of parental rights. A hearing was held over the

course of three days in January and February 2016.

                                    II.    Termination Hearing

       Nicole Allison testified that she had been a child-welfare specialist for the Cherokee

Nation for over nine years. She stated that she had qualified as an expert on Indian affairs in

over 1,000 cases and had received training in Tribal customs and culture. 2 Allison said that

she was notified at the very beginning of the case and had been kept apprised of the services

offered by DHS. According to Allison, her job was to evaluate active efforts and ensure that

active efforts were made to prevent the breakup of an Indian family. Allison testified that

she believed that active efforts had been made by DHS. Allison further testified that DHS

should not be penalized if drug-treatment referrals were delayed due to Holmes’s having




       2
           Holmes did not challenge Allison’s qualifications as an expert.

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canceled her appointments. She opined that Holmes had not made use of the services

offered.

       Allison also testified that she thought continued custody by Holmes would likely

result in serious emotional and physical damage to the children. She said that one of her

concerns was the fact that four referrals for drug treatment had been made and that Holmes

had left treatment three times. She also stated that Holmes had been referred for intensive

outpatient treatment but that she had instead sought inpatient treatment. Allison did not

recall Holmes ever asking for transportation but noted that Holmes had attended all of the

DHS staffings without ever needing a ride and that she had not had a problem getting to

court. Allison acknowledged that having multiple surgeries, as Holmes had, likely impacted

her ability to complete inpatient drug treatment. Nevertheless, she testified that, when

Holmes left Decision Point for a second time due to a slip and fall, she believed that Holmes

should have stayed for treatment because “if she was well enough to come back and collect

her belongings, I believe she was well enough to come back and stay.” Allison further

testified that other concerns were the true finding of sexual abuse of K.M.H. by John and

Holmes’s failure to protect her child. According to Allison, Holmes had initially stated that

she would leave John, but at the next staffing it was discovered that Holmes had been staying

in a hotel with John. Allison worried that Holmes would permit John to be around his

daughter and that she could be molested again. Allison testified that the children’s best

interest would be served by terminating parental rights.

       Sarah Harper, a foster-care worker at DHS, testified that she was assigned to the case

in April 2015. Harper stated that Holmes had completed parenting classes and appeared to


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share a bond with the children. She testified, however, that Holmes was not economically

stable in that she had not held down a job. Harper further testified that Holmes had not

completed counseling and that her discharge paperwork indicated that she had been dropped

from the program because the counselor had called her three times to set up appointments,

and Holmes had missed all three appointments. She also said that Holmes had lived in

approximately eight different places and was currently living with people she had met on

Facebook. Harper said that she had not been able to drug test Holmes over the previous

five months because Holmes had moved around and not provided contact numbers. Harper

stated that, although she had been unable to monitor Holmes’s drug use, she was confident

in saying that Holmes’s substance-abuse problem was unresolved.

       Harper also testified that the first drug-treatment referral had been made in January

or February 2015 and that she had made a referral in May 2015, followed by “re-referrals”

in September, December, and the following January. Harper said that Holmes had not yet

completed drug treatment. She stated that Holmes had never asked for transportation to

attend intensive outpatient treatment but noted that Holmes had been given six months of

bus passes, which she had not used. Harper also pointed out that Holmes had given DHS

prior notice of her need for transportation to visitation and that DHS had provided

transportation for her.

       Harper stated that there were approximately 130 potential placements for the

children, not including what the Cherokee Nation had found. She said, “I absolutely feel

like it’s reasonably likely that adoption will occur for these two children.” She also stated

that CASA (Court Appointed Special Advocates) had found notes written by John in the


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children’s possession. Harper surmised that Holmes had passed those notes along and

believed that this violated the trial court’s no-contact order.

       Dwight Hignite testified that he had met Holmes the previous Tuesday at the faith-

based “Insight Group,” which deals with addictions. He described it as a nine-week, low-

intensity self-help group. Hignite said that Holmes had sought him out to help with her

admitted use of methamphetamine and alcohol.

       Holmes testified that she had gone to inpatient treatment at Decision Point in June

2015 and had been medically discharged in July; that she had undergone surgery for a bowel

obstruction and had been hospitalized for three weeks; that she had gone back to Decision

Point in August and had left again in early to mid-October because she had fallen and had

felt pain in her stomach, which concerned her given her recent surgery; and that, when she

had attempted to return to Decision Point, the facility would not admit her. Holmes stated

that, although Decision Point had recommended intensive outpatient drug treatment for

her, she had felt that it would be better if she sought inpatient treatment because she did

not have transportation or money for gas. She stated that she had informed someone at DHS

that she had no transportation and did not recall having been provided with bus passes.

Holmes testified that, although she had a substance-abuse problem at one time, she did not

currently have one. She testified, however, that she had made plans to go to Monarch, a

drug-treatment facility in Oklahoma, that day because “it would be helpful.” 3



       3
        A CASA report indicated that Holmes had been referred to Monarch by Allison but
that Holmes had not followed through with intake as of January 21, 2016. The report noted
that she had entered Decision Point for a fourth time and had received another referral for
treatment.

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       Holmes further stated that she had completed parenting classes and that she had held

down a job at a gas station for three weeks but that parenting classes and court dates had

disrupted her work schedule. Holmes testified that she had moved five times at most. She

said that, although she had told Harper that she was homeless, she had received no help

from DHS with housing. According to Holmes, she had applied for HUD on her own and

had been placed on a waiting list. Holmes stated that she had stopped counseling only

because she had been hospitalized. She admitted that she had not attended HELP and that

she had attended only approximately half of the visits with her children. According to

Holmes, she had left her calendar of activities at home, and she had no sign-in sheets from

AA/NA meetings.

       Holmes testified that she was willing to protect K.M.H. from John, but she also

testified that she was still married to John and did not know what plans she had for their

relationship. Holmes stated that she was aware of the no-contact order but that she had

permitted John to speak with the children on the phone.

       Sam Wallace, who performed a psychosexual evaluation on John, testified that John

had denied having any sexual behavioral problems. He stated that his evaluation indicated

that John was at a moderate to low risk of sexual reoffense but that the fact that John would

not admit that the abuse had occurred was a significant barrier to treatment.

       John testified that he had attempted to reconcile twice with Holmes but that they

were not currently together. He further testified that he had not been arrested for sexually

abusing K.M.H.




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       In its order terminating parental rights, the trial court noted that it had made all of

its findings based on a beyond-a-reasonable-doubt standard.4 The trial court found that DHS

had proved grounds under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015) (twelve-

month failure to remedy), (vii)(a) (subsequent factors), and (ix)(a) (aggravated

circumstances). In finding that termination was in the children’s best interest pursuant to

section 9-27-341(b)(3)(A), the trial court found credible Harper’s testimony that adoption

was reasonably likely and that potential harm could result if the children were returned to

Holmes’s custody.

       The trial court noted that the ICWA applied and that the children were members of

the Cherokee Nation. The trial court found that Allison was a qualified expert witness for

ICWA purposes who offered credible testimony that the requirements of 25 U.S.C. § 1912

had been met.

                               III.   Indian Child Welfare Act

       According to the ICWA, the party seeking to terminate parental rights shall satisfy

the court that active efforts have been made to provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family and that these efforts have

proved unsuccessful. 25 U.S.C. § 1912(d). Moreover, no 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 of qualified expert witnesses, that the



       4
       In Timmons v. Arkansas Department of Human Services, 2010 Ark. App. 419, 376
S.W.3d 466, this court said that the better practice for the circuit court would have been to
employ a dual burden of proof to separate sets of findings under Ark. Code Ann. § 9-27-
341 and 25 U.S.C. § 1912(f).

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continued custody of the child by the parent is likely to result in serious emotional or

physical damage to the child. 25 U.S.C. § 1912(f).

                                  IV.    Standard of Review

       Termination-of-parental-rights cases are reviewed de novo. Jackson v. Ark. Dep’t of

Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276. Grounds for termination of parental

rights must be proved by clear and convincing evidence, and the appellate inquiry is whether

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

clearly erroneous. Id. 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.

       Holmes, however, does not challenge grounds or the trial court’s best-interest finding

under state law. Rather, she argues that the evidence was insufficient under the ICWA,

where the burden of proof in termination-of-parental-rights cases is beyond a reasonable

doubt. Ark. Code Ann. § 9-27-325(h)(3)(B). Holmes incorrectly asserts that this court’s

standard of review is the same as in a criminal case—substantial evidence. Thornton v. State,

2014 Ark. 157, 433 S.W.3d 216. In Timmons, supra, this court noted that Arkansas has not

applied the substantial-evidence standard of review in cases involving the ICWA. Findings

of fact in civil bench trials are reviewed under a clearly-erroneous standard. See Ark. R. Civ.

P. 52(a). Although the burden of proof is beyond a reasonable doubt, this court’s review is

de novo, and we do not reverse the trial court’s findings of fact unless they are clearly

erroneous. See Jackson, supra; cf. Ark. Teacher Ret. Sys. v. Short, 2011 Ark. 263, 381 S.W.3d

834 (taxpayer must establish entitlement to exemption beyond a reasonable doubt, and


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standard of review is whether findings of fact were clearly erroneous); Merriman v. Yutterman,

291 Ark. 207, 723 S.W.2d 823 (1987) (right to reform deed must be established beyond a

reasonable doubt, and standard of review is whether trial court’s decision was clearly

erroneous); Robinson v. Estate of Robinson, 2016 Ark. App. 130, 485 S.W.3d 261 (where

will’s proponent had burden of proof, or of going forward with proof, beyond a reasonable

doubt, question on appeal is not whether this court has such a doubt but whether the trial

court’s decision was clearly erroneous).

                                      V.      Discussion

                                    A.     Active Efforts

       Holmes argues that, while the Juvenile Code requires reasonable efforts, the ICWA

requires active efforts, which she asserts involves a higher standard of proof. Holmes states

that there is no dispute that she entered drug-treatment facilities multiple times but contends

that she only left due to health concerns. She maintains that the services offered by DHS

were “menial and average” and that even the trial court acknowledged that more could

have been done.5

       Although expert testimony was not necessary, Allison specifically testified that DHS

had made active efforts under the ICWA to prevent the breakup of an Indian family. She

said that multiple referrals for drug treatment amounted to “active efforts” and that those

efforts had proved unsuccessful when Holmes did not stay long enough at any facility to

complete drug treatment. There was no dispute that Holmes had health issues that could



       5
        Despite any comments from the bench, the trial court repeatedly found in its orders
that active efforts had been made by DHS.

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have affected her ability to complete treatment. The trial court specifically found that “Ms.

Holmes did have medical issues that contributed to the delay in her resolving her substance

abuse issues but those should not have interfered with completion of treatment for 30 days

in the last year.” In addition to the multiple referrals for drug treatment, Holmes was ordered

to complete counseling to address both her substance-abuse issues and the sexual-abuse

allegations. Holmes, however, was dropped from counseling because she had missed several

appointments. We cannot say that the trial court clearly erred in determining that DHS

proved beyond a reasonable doubt that active efforts were made.

                                   B.     Serious Damage

       Holmes argues that she was diligent in her attempts to complete drug treatment but

that her efforts were thwarted by her recurring health issues. Holmes maintains that,

although there was a true finding of sexual abuse against John, it was only an allegation. She

also points out that she had stable housing and income before the case had begun while she

was with her husband. Holmes states that these issues do not rise to the level of required

proof of damage.

       Allison specifically testified as an expert that Holmes’s continued custody of the

children was likely to result in serious emotional or physical damage to them. The biggest

concern was Holmes’s use of drugs and failure to take advantage of the many referrals for

drug treatment from DHS over the course of more than a year. Moreover, Holmes denied

having any substance-abuse problem at the termination hearing. Also of concern was the

fact that an agency had made a true finding of sexual abuse against John. Holmes failed to

complete counseling, which would have helped her gain insight into how to protect


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K.M.H. from further abuse. Although Holmes asserted that she would protect K.M.H., she

also said that she did not know whether K.M.H. had been sexually abused; she disobeyed a

court order that her children were to have no contact with John; and she had attempted to

reconcile with John, was still married to him as of the termination hearing, and testified that

she was unsure of her future plans for their relationship. We do not disagree that John

provided Holmes and the children stability with respect to housing and income, but we

cannot overlook the true finding of sexual abuse against John notwithstanding the absence

of criminal charges. We hold that the trial court did not clearly err in determining that DHS

proved beyond a reasonable doubt that Holmes’s continued custody was likely to result in

serious emotional or physical damage to the children.

       Affirmed.

       GLADWIN, C.J., and GLOVER, J., agree.

       Tabitha McNulty, 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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