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                ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                     No. CV-16-424


                                              Opinion Delivered September 21, 2016
  MARCUS JOHNSON, SR.
                  APPELLANT                   APPEAL FROM THE MISSISSIPPI
                                              COUNTY CIRCUIT COURT,
                                              CHICKASAWBA DISTRICT
  V.                                          [NO. JV-2013-71]


 ARKANSAS DEPARTMENT OF                       HONORABLE RALPH WILSON, JR.,
 HUMAN SERVICES and M.J.,                     JUDGE
 MINOR CHILD
                    APPELLEES                 AFFIRMED



                      ROBERT J. GLADWIN, Chief Judge

       The Mississippi County Circuit Court terminated appellant Marcus Johnson, Sr.’s,

parental rights to M.J., born June 29, 2013. Johnson argues on appeal that the trial court

erred because it relied on a ground not pled and the alternative ground pled was not proved

because there was no evidence of compliance with the Americans with Disabilities Act

(ADA). We affirm.

                                   I. Procedural History

       Appellee Arkansas Department of Human Services (DHS) filed a petition for

emergency custody and dependency-neglect on November 26, 2013, alleging that Gloria

Chambers, mother of M.J., had violated a no-contact order and had been arrested, resulting
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in a seventy-two-hour hold being placed on M.J. 1 An ex parte order was signed, and M.J.

was placed in DHS custody. On December 2, 2013, a probable-cause order was filed,

which found it to be in M.J.’s best interest to remain in DHS custody and for DHS to

develop a case plan and provide appropriate services. 2

       M.J. was adjudicated dependent-neglected on February 13, 2014. The order reflects

that M.J. was dependent-neglected because there was no legal caregiver for him when

Chambers was incarcerated. The goal of the case was to return M.J. to Chambers’s custody,

and the adjudication order also reflects that DHS should comply with the ADA because

both parents were receiving Social Security Disability benefits (SSD).

       In the May 19, 2014 review order, the trial court ordered that “Mr. Johnson’s

houseguest shall complete her portion of the home study,” and the goal of the case

continued to be the return of M.J. to his mother. The trial court found that DHS had made

reasonable efforts to provide services to achieve the goal of the case. The case was reviewed

again on August 13, 2014, and the resulting order reflects that the goal of the case remained

the same, both parents had completed parenting classes and had watched the video “The

Clock is Ticking”; however, but Johnson had tested positive for THC on August 1, 2014.

The parents were ordered to submit to random drug screening, and DHS was found to have

made reasonable efforts to provide family services to achieve the goal of the case by


       1
        Chambers executed a consent to termination of her parental rights on October 22,
2015, and she is not the subject of this appeal.

       2
         Even though Calvin Taylor was originally listed as M.J.’s legal father in the
emergency petition and ex parte order, a paternity test determined that Johnson was M.J.’s
father, and the probable-cause order lists Johnson as such.
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providing transportation and visitations. Thereafter, the case was continued on October 9,

2014, and again on April 13, 2015, and set for review on June 17, 2015.

                         II. Petition for Termination of Parental Rights

       On July 8, 2015, DHS filed a petition for termination of parental rights alleging that

M.J. had been out of the custody of his parent for twelve months and, despite a meaningful

effort by DHS to rehabilitate the parent and correct the conditions that caused removal,

those conditions had not been remedied, citing Arkansas Code Annotated section 9-27-

341(b)(3)(B)(i)(a) (Repl. 2015). To support this ground for termination, DHS alleged that

the results of Johnson’s random drug screens were as follows: August 1, 2014, positive for

THC; August 19, 2014, positive for THC; October 6, 2014, negative; October 23, 2014,

positive for THC, methadone, amphetamine, opiates and PCP; November 7, 2014, positive

for THC; January 14, 2015, positive for opiates; March 13, 2015, positive for opiates; April

10, 2015, negative; May 4, 2015, abnormal test; June 10, 2015, positive for THC and

cocaine. DHS also alleged that Johnson had two invalid tests—he tried to put soap in a

specimen cup and another urine sample was cold—and had been incarcerated multiple times

throughout the case. DHS alleged that a home study could not be completed because

Johnson and his roommate would not submit to the required background checks as ordered

by the circuit court.

       DHS further alleged that other factors or issues arose subsequent to the filing of the

original petition for dependency-neglect that demonstrated that placement of M.J. in the

custody of the parent was contrary to his health, safety, or welfare and that, despite the offer

of appropriate family services, the parent had manifested the incapacity or indifference to
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remedy the subsequent issues or factors or rehabilitate their circumstances that prevented

the placement of the juvenile in the custody of the parent. Ark. Code Ann. § 9-27-

341(b)(3)(B)(vii). To support this ground, DHS alleged that Johnson had tested positive for

illegal substances on numerous occasions as cited above and had been incarcerated several

times during the pendency of the case. Also, DHS alleged that Johnson and his roommate

had not cooperated in completing a home study. DHS claimed that the potential harm of

placing the child with Johnson was that he continued to test positive for illegal substances,

and he had “legal issues.”

       At the termination hearing on December 14, 2015, Sylvia Ware, a supervisor for

DHS, testified that M.J. was taken into custody on November 22, 2013, because his mother

had been arrested for violating a no-contact order, and he had been in DHS custody since

then. Ware stated that Johnson completed parenting classes, watched “The Clock is

Ticking” video, and maintained visitation with M.J. She stated that there were complaints

of Johnson being too loud during visitation and that he took his shirt off in the park and

allegedly exposed his genital area. Johnson denied this allegation. Ware testified that

Johnson had stable income but not stable housing, because he had moved several times

during the case. She thought that he was living with his girlfriend at the time of the

termination hearing, but neither a background check nor a central-registry check had been

performed on the girlfriend. She said that Johnson received $733 per month SSD based on

a speech impediment. She testified about the drug screens that Johnson had taken during

the pendency of the case and added eight positive results to those listed in the termination

petition. She also stated that Johnson had tested positive for cocaine and THC on the date
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of the hearing. She said that he had completed only one of the twelve outpatient classes

recommended based on a drug-and-alcohol assessment. She claimed that she was not aware

of a specific offer of transportation to the classes. She said that he claimed that someone had

laced his cigarette with cocaine and THC. She also testified that M.J. was adoptable and

was already in a preadoptive home, placed together with his sister. 3

       Gregory Watson, a DHS caseworker assigned to Johnson’s case, testified that Johnson

was living in a one-bedroom apartment with his girlfriend but intended to move to a bigger

place after he was married. Watson said that he had witnessed visitations with Johnson and

M.J., and that Johnson loved and cared about M.J. Watson also stated that he had always

asked Johnson if he needed a ride, either to outpatient sessions or to visitation, and had told

Johnson to give him a call if he were needed.

       Johnson testified that he was M.J.’s father and that he had been living at his current

apartment for the last four months. He also testified to two other addresses where he had

lived during the pendency of the case. He said that if M.J. went home with him that day,

M.J. would get the bed, and he and his girlfriend would sleep on two couches. He stated

that he did not have diapers, but he would obtain everything if necessary. He said that he

and his girlfriend planned on marrying and getting a larger home. He testified that they did

not have a car, and he did not drive; however, he had friends and relatives to call on if he

needed transportation for his son. He said that he had a high school diploma but drew SSD

for his speech impediment and had never worked in his life. He testified that he had not


       D.C., born August 14, 2014, is Chambers’s daughter, but is not the daughter of
       3


Johnson, and is therefore not discussed in this appeal.
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smoked weed “for a minute. About two or three weeks . . . .” He explained that he had

tested positive because he was around people who “blew weed” in his face. He then stated

that he had never smoked marijuana but had been around people who blew it in his face.

He also said that he thought the cocaine in his system was from someone putting it in his

cigarettes, and he denied putting soap in his urine specimen when he was drug tested.

       Johnson’s niece, Sadania Byrd, testified that she was thirty-one years old and saw

Johnson once a week. She stated that Johnson was a good father and loved his son. She

said that she drove Johnson wherever he needed to go and that she had never witnessed

Johnson using drugs of any kind.

                    III. Trial Court’s Termination-of-Parental-Rights Order

       The trial court granted DHS’s petition for termination and ruled that M.J. would be

adopted if the petition were granted, because he was in a preadoptive placement with his

sister. The trial court also found potential harm to the health and safety of M.J. if he returned

to the custody of his mother, and she had consented to termination of her parental rights.

Further, M.J. had been out of the home for over two years and had not been placed with

Johnson due to Johnson’s housing instability, drug usage, lack of reliable transportation, and

failure to follow the recommendation of the drug-and-alcohol assessment. The order

terminating parental rights was filed on February 19, 2016, and Johnson filed a timely notice

of appeal on March 4, 2016.

                                      IV. Applicable Law

       The rights of natural parents are not to be passed over lightly; however, parental

rights will not be enforced to the detriment or destruction of the health and well-being of
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the child. Oldham v. Ark. Dep’t of Human Servs., 2015 Ark. App. 490, at 6–7, 469 S.W.3d

825, 829. A trial court’s order terminating parental rights must be based on findings proved

by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing

evidence is defined as that degree of proof that will produce in the fact-finder a firm

conviction as to the allegation sought to be established. Posey v. Ark. Dep’t of Human Servs.,

370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-

of-parental-rights cases de novo but will not reverse the trial court’s ruling unless its findings

are 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. In determining whether a finding is clearly

erroneous, an appellate court gives due deference to the opportunity of the trial court to

judge the credibility of witnesses. Id.

       In order to terminate parental rights, a trial court must find by clear and convincing

evidence that termination is in the best interest of the juvenile, taking into consideration (1)

the likelihood that the juvenile will be adopted if the termination petition is granted; and

(2) the potential harm, specifically addressing the effect on the health and safety of the child,

caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing

of clear and convincing evidence as to one or more of the grounds for termination listed in

section 9-27-341(b)(3)(B).      However, only one ground must be proved to support

termination. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918.


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       Johnson does not challenge the trial court’s finding that termination was in M.J.’s

best interest, including consideration of the likelihood that M.J. will be adopted and of the

potential harm that would be caused by returning him to Johnson’s custody. He challenges

only the trial court’s finding of statutory grounds on which to terminate his parental rights.

                                 V. Grounds for Termination

       Johnson argues that because the trial court terminated his parental rights on a

statutory ground not pled, it cannot be said that DHS proved its petition with clear and

convincing evidence. The petition alleged that M.J. had been adjudicated dependent-

neglected and had continued

       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 the removal, those conditions have not been remedied by the parent. Ark.
       Code Ann. § 9-27-341(b)(3)(B)(i)(a).

Johnson claims that, in support of this allegation, DHS stated that M.J. had been adjudicated

dependent-neglected “due to no legal caregiver as the mother was incarcerated at the time.”

He further states that DHS “also asserted factual allegations” against both parents, and

concluded that “[d]espite 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. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a).” He points out that, in contrast,

the trial court found that DHS proved that M.J. had been out of the noncustodial parent’s

home for twelve months and despite a meaningful effort by DHS to rehabilitate the parent

and correct the conditions “that prevented the child from safely being placed in the parent’s

home, the conditions have not been remedied by the parent.”

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       Johnson claims that DHS failed to plead the ground in the termination petition that

was employed by the circuit court at the termination hearing and, thus, that the ground

relied on must be excluded. In support, Johnson cites Dornan v. Arkansas Department of

Human Services, 2014 Ark. App. 355; Jackson v. Arkansas Department of Human Services, 2013

Ark. App. 411, 429 S.W.3d 276; and K.C. v. Arkansas Department of Human Services, 2010

Ark. App. 353, 374 S.W.3d 884.

       In Dornan, our court held as follows:

               Due process demands that a parent be notified of the grounds that may
       constitute a basis for termination; at a minimum, it requires notice reasonably
       calculated to afford a natural parent the opportunity to be heard prior to termination
       of his or her parental rights. Jones v. Ark. Dep’t of Human Servs., 2011 Ark. App. 632;
       see Jackson v. Ark. Dep’t of Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276
       (reversing because Jackson was not placed on notice that he must defend on a
       particular ground on which termination was based: the department never specifically
       argued that the trial court should rely on the ground, the trial court took the matter
       under advisement without ruling from the bench, and the first specific mention of
       this ground was in the trial court’s order terminating parental rights) (citing Kight v.
       Ark. Dep’t of Human Servs., 94 Ark. App. 400, 409, 231 S.W.3d 103, 109 (2006)).
       Here, we agree that the first three statutory grounds found by the circuit court cannot
       sustain the termination of appellant’s parental rights because she was not placed on
       notice that she must defend against them.

Id. at 16–17. However, we also held that the fourth ground pled, aggravated circumstances,

was a proper basis for termination because the petition specifically alleged as proof of this

ground that appellant had not had regular visits with the children since they had gone into

care. Id. at 17.

       Johnson argues that he had no notice prior to the termination hearing that his

parental rights might be terminated on the ground that the child had been out of his custody

for twelve months and that he had failed to correct the conditions that prevented the child

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from safely being placed in his home. He claims that because the trial court relied on that

sole ground in terminating his parental rights, the order must be reversed. DHS and the

attorney ad litem assert that the subsequent-factors statutory ground was alleged and proved,

and on de novo review, this court can affirm the circuit court’s termination decision on any

ground that was alleged in the petition and proved. Fenstermacher v. Ark. Dep’t of Human

Servs., 2013 Ark. App. 88, 426 S.W.3d 483. We agree, relying on the same reasoning as

applied in Dornan, supra, and now consider the other statutory ground pled.

                                   VI. Subsequent Factors

       Although the trial court did not terminate Johnson’s parental rights on the

subsequent-factors ground, it was pled by DHS as a ground supporting termination. But,

Johnson argues that it does not offer an alternative basis for this court to affirm. He claims

that, under the subsequent-factors ground, DHS must prove that these subsequent factors

prevented the return of M.J. to him despite the fact that DHS offered “appropriate family

services.” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Johnson claims that DHS failed to

offer sufficient proof in this regard since, he alleges, it is undisputed that no reasonable

accommodations were made for him.

       He points to the February 13, 2014 adjudication order that specifically directed DHS

to comply with the ADA because both parents received SSD. He contends that, despite

this directive, there was no evidence that DHS ever investigated the potential

accommodations needed to ensure successful reunification of him with his son.             He

acknowledges that he did not challenge DHS’s failure to comply with the ADA in the trial

below, but claims that he is not precluded from raising this issue on appeal, citing Baker v.
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Arkansas Department of Human Services, 2011 Ark App. 69 (where this court ordered

rebriefing of a no-merit brief), and Baker v. Arkansas Department of Human Services, 2011 Ark.

App. 400 (where we held that a nonfrivolous argument could have been made that a Wicks

exception—no objection required to preserve an issue for appeal where the error is so

flagrant and egregious that the trial court should, on its own motion, have taken steps to

remedy it—should apply where the indigent parent’s mental disability was at issue). See

Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

       Johnson contends that the trial court and all parties were aware from the time of the

adjudication that he received SSD. He claims that his speech impediment would also have

been obvious to all parties, and Sylvia Ware, a caseworker for DHS, testified that she was

aware that Johnson received SSD. He claims that, despite DHS’s knowledge of his receipt

of SSD, no attempt was made by DHS to investigate what accommodations might be

needed. Thus, he maintains that the trial court, on its own motion, should have at least

inquired into DHS’s compliance with the ADA. He contends that there was no evidence

that he was given meaningful access to reunification and family-preservation services as

required under section 9-27-341(b)(3)(B)(vii)(a); thus, he asserts that it cannot serve as an

alternative basis for the termination of his parental rights.

       We hold that Johnson’s failure to follow circuit court orders and his drug use were

the subsequent-factors issues, and these failures are sufficient to support a subsequent-factors

finding. Cotton v. Ark. Dep’t of Human Servs., 2012 Ark. App. 455, 422 S.W.3d 130.

Further, Johnson’s appropriate-family-service challenge must fail because, at every hearing,

the circuit court found that DHS had made reasonable efforts, and Johnson never appealed
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those findings. Prior to his appeal, Johnson never challenged the appropriateness of any

DHS-offered reunification service, and he never argued that there were particular

reunification services that DHS should provide. See Emmons v. Ark. Dep’t of Human Servs.,

2013 Ark. App. 541, at 5 (where appellant argued that, because he was a quadriplegic, he

should have been given, under the ADA, transportation to a drug assessment that he failed

to attend, and this court held that the previous orders finding that reasonable services had

been provided were not appealed and therefore precluded review on that issue). Finally,

Johnson’s failure to follow the orders designed to achieve M.J.’s permanent placement

demonstrated an incapacity or indifference to remedy the subsequent factors. Myers v. Ark.

Dep’t of Human Servs., 2011 Ark. 182, 380 SW.3d 906. Accordingly, we affirm.

       Affirmed.

       VIRDEN and GLOVER, JJ., agree.

       Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

       Andrew Firth, County Legal Operations, for appellee.

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




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