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                 ARKANSAS COURT OF APPEALS

                                         DIVISION I
                                      No. CV-16-1119

ERNEST ADKINS                                    Opinion Delivered:   April 12, 2017
                               APPELLANT
                                                 APPEAL FROM THE MARION
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. 45JV-15-9]

ARKANSAS DEPARTMENT OF        HONORABLE DEANNA SUE
HUMAN SERVICES AND MINOR      LAYTON, JUDGE
CHILDREN
                    APPELLEES REVERSED AND REMANDED


                             KENNETH S. HIXSON, Judge

       Appellant Ernest Adkins (Ernest) appeals from the Marion County Circuit Court’s

permanency-planning order. In the order, the trial court changed the goal of the case to

termination of parental rights and adoption. On appeal, appellant generally contends that

the trial court erred in changing the goal of the case. We reverse and remand.

       On May 1, 2015, the Arkansas Department of Human Services (DHS) filed a petition

for emergency custody and dependency-neglect of I.A. (DOB 12-22-2006) and D.A. (DOB

9-5-2012). In the affidavit attached to the petition, DHS stated that it removed the children

from the home after it received a referral that the children’s parents, Alisha Adkins (Alisha) 1

and Ernest, were using drugs while caring for the children. During an investigation, DHS

discovered that the children lived with both parents and with their maternal grandmother,



       1
       Alisha is no longer a party to this appeal, as her appeal was dismissed as moot by this
court on February 1, 2017.
                                Cite as 2017 Ark. App. 229

Pearl Zimmerman (Pearl). Pearl stated that the family had moved into her home to take

care of her because she had breast cancer; yet, she stated that she was unable to proceed with

chemotherapy treatments because she had to take care of the children. Pearl suspected that

Alisha and Ernest were using drugs. I.A. confirmed that her parents used drugs and that her

parents got “really mean” when using drugs. Alisha admitted to the investigator that she

had used drugs.    The trial court found probable cause existed for the removal.          An

adjudication hearing was held on June 30, 2015, and the trial court found that the children

were dependent-neglected.      The trial court set the goal of the case at that time to

reunification with a concurrent plan for relative placement.

       A review hearing was held on August 12, 2015, and the trial court found that the

case plan was moving toward an appropriate permanency plan. However, the trial court

additionally found that the parents had not been complying with the case plan at that time

and ordered that Pearl be considered for placement. In the October 28, 2015 review

hearing, the trial court found that Alisha still had not complied with the case plan, other

than to attend visitation and submit to drug screens, and that Ernest still had not complied

with the case plan, other than to attend visitation, submit to drug screens, and obtain

employment. Then, at the February 2016 review hearing, the trial court again found that

the parents had only minimally complied with the case plan.

       A permanency-planning hearing was held on April 20, 2016. Only Jennifer Matney,

the family-service-worker supervisor, testified at the hearing. The children were nine years

old and three years old at the time of the hearing. She explained that they were currently

placed together with their aunt in a provisional foster home. She testified that the children


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were doing well and that their needs were being met. 2 Although the goal of the case had

been reunification, Matney requested that the goal be changed to termination of parental

rights because the parents had made only minimal progress in their case plan. Matney

testified that the maternal grandmother, Pearl, had been exercising visitation with the

children and that supervised visitation would take place at Pearl’s home when the children’s

parents visited. Although Pearl tested positive for drugs during her drug screens, Matney

explained that Pearl was undergoing treatment for cancer and that the treatment would “trip

her drug screens.”       Therefore, Matney explained that DHS verified that Pearl had

prescriptions for the drugs found in her system and that she did not have any concerns that

Pearl was using illicit drugs at that time. Matney testified that Pearl had just begun to have

extended visitation with the children and that Pearl was a potential candidate for adoption

or relative placement. Matney further acknowledged that the children had a strong bond

with their parents and with their grandmother.

       After Matney’s testimony, both parents joined in asking for a directed verdict and

orally argued why the goal of the case should remain as reunification. Alisha specifically

argued that the permanency-planning statute listed relatives as a preference. She argued that

she did not understand why there was any reason to “employ a termination because

permanency can actually, indeed, be achieved faster for a child with relatives rather than

termination. Because we have relatives sitting right in the courtroom today.” Alternatively,

she requested that a separate placement hearing be held to consider placement with Pearl if

the goal was changed to termination. The attorney ad litem acknowledged that the children


       2
           The aunt’s name is not included in the record.
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had been placed with their aunt and uncle in provisional foster care. However, the attorney

ad litem opined that termination would be in the best interest of the children. The trial

court denied the motions for directed verdict and changed the goal of the case to termination

and adoption.

       In the amended permanency-planning order filed on October 11, 2016, the trial

court made the following relevant findings:

              3. The Court, mindful of the available permanency planning dispositions and
       in accordance with the best interest, health and safety of the juvenile, does hereby
       determine the goal of the case shall be:

             Authorizing a plan for adoption with the department filing a petition for
       termination of parental rights because:

               (A) The juvenile is not being cared for by a relative and termination of parental
       rights is in the best interest of the juvenile;

              (B) The Department has not documented in the case plan a compelling reason
       why a petition for termination of parental rights is not in the best interest of the
       juvenile;

              (C) The Department has provided to the family of the juvenile, consistent
       with the time period in the case plan, such services as the Department deemed
       necessary for the safe return of the juvenile to the juvenile’s home if reunification
       services were required to be made to the family; and

               (D) The Court finds that the permanent goal for the juvenile shall be a plan
       for adoption with the Department filing a petition for termination of parental rights.
       Having set the goal to be adoption, the Court has determined that parent counsels
       shall continue to represent the parents for termination purposes.

       ....

               8. The Court finds that the parent(s) HAVE NOT complied with the case
       plan and the orders of this Court, specifically, parental drug use continues to be an
       issue in this case. The mother has not completed drug treatment and the Court has
       nothing before it to show she is pursuing recovery or addressing her addiction. The
       Court notes that Mr. Adkins has not been a reliable support system. Moreover, the
       mother has an outstanding arrest warrant that undercuts any notion of maternal
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       stability. The parents have not provided proof of parenting classes, employment, or
       stable housing. The parents have not been available to the Department and have not
       allowed the Department to inspect their home. The Court also notes the parents
       have left much wanting in regards to providing for the juveniles’ basic needs. [I.A.],
       based on her age, knows her parents are using drugs and [D.A.] has special needs that
       the Court believes may be caused or exacerbated by the lack of parental stability in
       this case. . . .

              9. The Court finds and orders:

                     A. That the parents have not remedied the circumstances that caused
       removal.

                    B. That the parents have not made substantial, measurable progress
       towards achieving reunification.

                     C. The Department and the parents shall go to the parents’ home
       today to allow the Department to inspect the home.

                     D. Mrs. Zimmerman shall submit to a hair follicle test.

                      E. An additional special relative placement hearing will not be
       scheduled at this time. Court has considered relatives available at each hearing
       including this one and relative placement cannot be made at this time.

              10. The Court finds that the visitation plan is appropriate for the juvenile(s)
       and the parent(s). Relative placement will be considered again at the next hearing.

(Emphasis added.) The trial court attached a Rule 54(b) certification to the order pursuant

to the Arkansas Rules of Civil Procedure (2016), and this appeal followed.

                                    I. Standard of Review

       We review findings in dependency-neglect proceedings de novo, but the trial court’s

findings will not be reversed unless the findings are clearly erroneous. Ellis v. Ark. Dep’t of

Human Servs., 2016 Ark. 441, 505 S.W.3d 678. A finding is clearly erroneous when,

although there is evidence to support it, the reviewing court based on the entire evidence,

is left with a definite and firm conviction that a mistake has been committed. Id. While


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we give due deference to the trial court’s determination of the credibility of the witnesses

and the weight to be given their testimony, the circuit court’s conclusions of law are given

no deference. Id.

                     II. Arkansas Code Annotated Section 9-27-338(c)(4)

       Appellant contends on appeal that the trial court erred in changing the goal of the

case to termination and adoption. Appellant argues that, at the time of the permanency-

planning hearing, the children were placed with their aunt, they were receiving extended

visitation at their grandmother’s home, and both the aunt and the grandmother had made

long-term commitments to the children and were willing to pursue guardianship or

permanent custody. Therefore, appellant argues that the trial court erred in finding that the

aunt or the grandmother failed to satisfy the requirements of Arkansas Code Annotated

section 9-27-338(c)(4)(A)(i) (Repl. 2015). He further argues that it is not in the children’s

best interest to terminate parental rights because (1) the children already have permanency

in their current placement, (2) the children would suffer a severe negative impact if they are

stripped of their bond with their parents, and (3) the children would suffer a severe negative

impact if they are stripped of their bond with their grandmother.

       A permanency-planning hearing under Arkansas Code Annotated section 9-27-

338(a)(1) is held to finalize a permanency plan for the children. Section 9-27-338 provides

in pertinent part

       (c) At the permanency planning hearing, based upon the facts of the case, the circuit
       court shall enter one (1) of the following permanency goals, listed in order of
       preference, in accordance with the best interest, health, and safety of the juvenile:

       (1) Placing custody of the juvenile with a fit parent at the permanency planning
       hearing;
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       ....

       (4) Authorizing a plan for adoption with the department’s filing a petition for termination of
       parental rights unless:

              (A) The juvenile is being cared for by a relative and the court finds that:

                      (i) Either:

                              (a) The relative has made a long-term commitment to the child and the
                              relative is willing to pursue guardianship or permanent custody; or

                              (b) The juvenile is being cared for by his or her minor parent who is in
                              foster care; and

                      (ii) Termination of parental rights is not in the best interest of the juvenile;

              (B) The department has documented in the case plan a compelling reason
              why filing such a petition is not in the best interest of the juvenile and the
              court approves the compelling reason as documented in the case plan; or

              (C)(i) The department has not provided to the family of the juvenile,
              consistent with the time period in the case plan, such services as the
              department deemed necessary for the safe return of the juvenile to the
              juvenile’s home if reunification services were required to be made to the
              family.

                      (ii) If the department has failed to provide services as outlined in the
                      case plan, the court shall schedule another permanency planning
                      hearing for no later than six (6) months[.]

(Emphasis added.)

       DHS failed to address in its brief appellant’s specific argument that the trial court

erred in changing the goal of the case because it found that the children were not being

cared for by a relative when they were, in fact, being cared for by their paternal aunt.

Instead, DHS argued that the trial court’s best-interest findings were not clearly erroneous

because the parents failed to comply with the case plan. Appellant does not dispute the trial


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court’s findings that he was not in full compliance with the case plan. Instead, he argues

that the trial court failed to follow the preferential goals in the permanency-planning statute

under section 9-27-338(c)(4). We agree.

       Here, Matney testified that the children were being cared for by their aunt in

provisional foster care, and this testimony was undisputed. In fact, the attorney ad litem

confirmed in closing argument at the permanency-planning hearing that the children were

living with their aunt and uncle. Furthermore, there was no testimony that this placement

needed to change or that the aunt was unwilling to continue to care for the children.

Instead, Matney testified that the children were doing well and that their needs were being

met. Despite this undisputed testimony, the trial court specifically found that changing the

goal of the case to termination of parental rights and adoption was appropriate because “[t]he

juvenile is not being cared for by a relative.” (Emphasis added.) That is incorrect; the juveniles

were being cared for by a relative—their paternal aunt. Therefore, we hold that the trial

court’s finding that the children were not being cared for by a relative was clearly erroneous.

       Even though the trial court could still find that termination of parental rights and

adoption is in the children’s best interest and appropriate under section 9-27-338(c)(4), the

record before us does not indicate that the trial court considered the additional factors

enumerated under section 9-27-338 because the trial court erroneously found that the

children were not being cared for by a relative. See generally Ferguson v. Ark. Dep’t of Human

Servs., 2016 Ark. App. 258, 492 S.W.3d 880. Thus, we must reverse and remand for further

proceedings consistent with this opinion. Because we reverse and remand, we do not need

to address appellant’s remaining arguments.


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      Reversed and remanded.

      GLOVER, J., agrees.

      BROWN, J., concurs.

      Worlow Law, LLC, by: Jacob Worlow, 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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