                                Cite as 2017 Ark. App. 529

                 ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CV-17-512


                                                 Opinion Delivered   October 18, 2017
LYLE WHITE
                              APPELLANT          APPEAL FROM THE MADISON
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. 44JV-16-5]

ARKANSAS DEPARTMENT OF                           HONORABLE STACEY
HUMAN SERVICES AND MINOR                         ZIMMERMAN, JUDGE
CHILD
                   APPELLEES                     AFFIRMED



                          N. MARK KLAPPENBACH, Judge

       Lyle White appeals the Madison County Circuit Court order terminating his parental

rights to his daughter, AH. On appeal, White challenges the circuit court’s finding that

termination of his parental rights was in AH’s best interest. We affirm.

       The Arkansas Department of Human Services (DHS) removed AH from the custody

of her mother, Kelsey Hull, soon after her birth in January 2016. Hull and the newborn

both tested positive for methamphetamine, amphetamines, benzodiazepines, and opiates.

Hospital staff reported that Hull had been leaving the hospital and returning smelling of

alcohol. Additionally, she was homeless. Hull’s mother, Kathy Green, was the permanent

guardian of Hull’s oldest child, and Hull’s sister had been caring for her other son.

       White appeared at the probable-cause hearing, where the circuit court ordered that

he have visitation with AH at the hospital, communicate with the caseworker, submit to

drug screens, obtain and maintain stable housing and employment, and demonstrate the
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ability to protect the child from harm. White failed to appear for the February 26, 2016

adjudication hearing, and the court found that he had not submitted to a drug screen or

visited the child since the probable-cause hearing. The circuit court found that AH was

dependent-neglected due to neglect and parental unfitness and that she had been subjected

to aggravated circumstances. AH remained in the custody of DHS, but she was moved to

the provisional foster home of her maternal grandmother, Kathy Green. In addition to the

court’s prior orders, White was ordered to participate in individual counseling, have a drug-

and-alcohol assessment, and complete parenting classes.

       On April 22, 2016, the circuit court ordered that reunification services would no

longer be provided and authorized a plan for termination of parental rights and adoption.

White had failed to appear for the hearings on this date, and the court found that he had not

availed himself of services or visits. After a termination hearing in June 2016, the court

terminated Hull’s parental rights but denied the petition as to White. The court found that

White was entitled to more time because he had not been transported from prison for the

no-reunification-services and permanency-planning hearings, and he was not represented by

counsel at those hearings despite having filed a pro se motion for appointment of counsel.1

The court additionally noted that White had sent letters to the court, he was the

nonoffending parent in the case, and he had testified about taking classes in prison.

However, the court also found that White had been incarcerated for most of the case, was


       1
       White had been appointed counsel prior to the termination hearing.

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currently incarcerated on a parole violation, and had new pending charges. Reunification

with White was set as the new goal of the case, and a permanency-planning hearing was

scheduled. The court later granted White’s motion to continue the hearing until after his

release from prison, but White was again incarcerated when the hearing was held in January

2017. The court again authorized a plan for adoption.

       White testified at the February 2017 termination hearing that he was incarcerated for

violating his parole and expected to be released in June. He had been released from prison

on the day AH was born in January 2016 after serving about six months for a parole violation

on the underlying conviction of possession of methamphetamine. White said that he was

present for the first thirteen days of AH’s life when she was hospitalized. He was arrested

again, however, around March 13, 2016, for possession of drugs. White claimed that he was

“just somewhere where everybody got charged.” He was convicted of that charge and

incarcerated from March 2016 to November 23, 2016. After being released on parole, he

was arrested for possession of methamphetamine around December 13, 2016. White said

that this charge was due to “riding around with the wrong people.” He was awaiting trial

on this charge, but he believed it would be dropped.

       White wanted Green to have permanent custody, but he claimed that once he was

released he would have a job and could provide love and support to AH. AH had been

placed with Green since February 2016, and White had not had any visitation during that

time. AH did not know him. Green testified that she wanted to adopt AH and had been


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approved as an adoptive home. The caseworker testified that White had not complied with

any court orders and that AH’s permanency was more important than granting more time

to White.

       The circuit court found that two statutory grounds for termination existed and that

termination was in AH’s best interest. On appeal, White argues that termination was not in

AH’s best interest in light of her placement with her maternal grandmother. He does not

challenge the grounds for termination, and he concedes that AH is adoptable.

       In order to terminate parental rights, a circuit 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) (Repl. 2015). Clear and convincing evidence is that degree of

proof that will produce in the finder of fact a firm conviction as to the allegation sought to

be established. McElwee v. Ark. Dep’t of Human Servs., 2016 Ark. App. 214, 489 S.W.3d 704.

The appellate inquiry is whether the circuit court’s finding that the disputed fact was proved

by clear and convincing evidence is clearly erroneous, giving due deference to the circuit

court’s opportunity to judge the credibility of the witnesses. 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.


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       A circuit court is required to consider only potential harm to a child’s health and

safety that might come from continued contact with the parents; there is no requirement to

find that actual harm would result or identify the potential harm. Pine v. Ark. Dep’t of Human

Servs., 2010 Ark. App. 781, 379 S.W.3d 703.             Furthermore, the juvenile’s need for

permanency and stability overrides a parent’s request for additional time to improve

circumstances, and courts will not enforce parental rights to the detriment of the well-being

of the child. McElwee, supra. The intent of the termination statute is to provide permanency

in the child’s life in all circumstances where a return to the parent is contrary to the juvenile’s

health, safety, or welfare and cannot be accomplished in a reasonable period of time as

viewed from the child’s perspective. Id.

       White contends that there would be no harm to AH if his rights were not terminated

because she could remain in the care of her grandmother, and he could establish a

relationship with her once he is released from prison. Citing Cranford v. Arkansas Department

of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851, and Bunch v. Arkansas Department

of Human Services, 2017 Ark. App. 374, 523 S.W.3d 913, White argues that termination was

not necessary to achieve permanency and stability for the child. In those cases, this court

reversed the termination of parental rights upon finding that termination was not in the best

interest of the children based on the custody arrangement and other factors. AH, like the

children in Cranford and Bunch, was living with her grandparents, but other factors distinguish

White’s case.


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       In Cranford, the child’s father was incarcerated at the time of the termination hearing,

but he anticipated being released in six weeks and had demonstrated stability in housing and

employment before his incarceration. The grandmother testified that she wanted both

parents to remain in the child’s life and have regular visitation. Cranford, supra. In Bunch, we

held that the mother had complied with many aspects of the case plan and that there was

ample evidence that continued contact with her was in the children’s best interest. The case

at bar is more akin to Brumley v. Arkansas Department of Human Services, 2015 Ark. 356, in

which the father had been incarcerated for most of the child’s life, had no relationship with

the child, and lacked essential components of the case plan as a result of his continued

incarceration. Despite the fact that the child was being cared for by relatives, the supreme

court held that termination of parental rights was in the child’s best interest where the

evidence did not reflect any stability or reasonable hope for reunification. Brumley, supra; see

also Scrivner v. Ark. Dep’t of Human Servs., 2016 Ark. App. 316, 497 S.W.3d 206 (affirming

best-interest finding of children placed with grandmother where father had repeated

incarcerations, faced pending charges, had substance-abuse issues, and had failed to comply

with case plan).

       White had a series of drug charges dating back to at least 2009, and new charges and

parole violations led to his chronic incarceration. He was convicted of a new drug offense

during the pendency of this case, and he had an unresolved drug charge at the time of the

termination hearing. White blamed being around the wrong people for these charges, but


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it is clear that his own poor choices led to his arrests and demonstrated the potential harm

to AH. According to White’s testimony, he had been incarcerated for approximately

seventeen of the last twenty months, and he anticipated that he would remain incarcerated

for at least the next four months. In the brief periods he was not incarcerated, White failed

to comply with the case plan. As the circuit court found, White’s failure to demonstrate

stability or sobriety created an undue risk of harm to AH if she was placed in his custody.

Based on these facts, the circuit court’s finding that termination was in the child’s best

interest was not clearly erroneous.

       Affirmed.

       GLADWIN and HARRISON, JJ., agree.

       Dusti Standridge, for appellant.

       Jerald A. Sharum, Office of Chief Counsel, for appellee.

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




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