Susan
Williams
                               Cite as 2013 Ark. App. 503
2019.01.
02              ARKANSAS COURT OF APPEALS
12:19:14
-06'00'                               DIVISION III
                                      No. CV-13-392


JESSICA AGUILERA                                 Opinion Delivered September 18, 2013
                              APPELLANT
                                                 APPEAL FROM THE WASHINGTON
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. J-2011-832-3]

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



                              ROBIN F. WYNNE, Judge


      Jessica Aguilera appeals from an order terminating her parental rights to her son, A.A.,

born 4/4/11.1 She argues on appeal that the trial court erred by incorporating into the

record all prior testimony in the case and that termination of her parental rights is not

supported by the record because she was current on her child support at the time of the

termination hearing; she had remedied the issue causing removal by filing for divorce from

her abusive husband; and the only subsequent issue that arose—her DUI conviction—was

an isolated incident that had been “remedied.” We affirm.

      This dependency-neglect case began when the Arkansas Department of Human

Services (DHS) took emergency custody of A.A. and appellant’s three-and-a-half-year-old



      1
        The rights of A.A.’s father, Aaron Aguilera, were also terminated, but he is not a
party to this appeal.
                                Cite as 2013 Ark. App. 503

daughter, I.G.,2 due to physical abuse of I.G. by appellant’s husband, Aaron Aguilera, who

was A.A.’s legal father and I.G.’s stepfather. On December 11, 2011, while appellant was at

work, Aaron intentionally threw I.G. off of a bed, causing her to hit her head and sustain a

five-inch skull fracture. Aaron was arrested and charged with battery. DHS took custody

of the children two days later, when it appeared that appellant was wavering and calling the

injury an accident. Appellant and her husband had a history of domestic violence that

included him breaking appellant’s nose, and both had previously been jailed for violating a

no-contact order. In fact, a protective-services case was in place and investigations were

ongoing when the children were removed on December 13, 2011.

       After a hearing on February 1, 2012, the court adjudicated A.A. and I.G. dependent-

neglected based on physical abuse by Aaron and neglect (failure to protect) by appellant. The

court found that Aaron fractured three-and-a-half year old I.G.’s skull. The court further

found that I.G. had bruises on both sides of her jaw, which appellant initially said happened

from holding her face while brushing her teeth but later admitted that Aaron had done it

when he held I.G.’s face to make her look at him. Around Thanksgiving 2011, Aaron had

spanked I.G. so hard that she had black bruises. The court granted appellant supervised

visitation and ordered her to, among other things, attend domestic-violence counseling, have

a psychological evaluation and follow the recommendations, refrain from using illegal drugs

or alcohol, complete parenting classes, and pay $37 a week in child support.




       2
        The court ultimately awarded permanent custody of I.G. to her father, who lived in
California.

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       Following a May 2012 review hearing, the court found that appellant had followed

some of the requirements of the court orders and case plan. Appellant had stable housing and

employment, had completed counseling, cooperated with DHS, submitted to random drug

screens, completed parenting classes, submitted to hair-follicle testing, and was current on her

child support. The court also found, however, that appellant had missed two appointments

for her psychological evaluation and was still married to Aaron. The court had “serious

concerns” that appellant would not keep the children safe. The court also noted that Aaron

had been sentenced to twenty years’ imprisonment, with fourteen of those suspended, for

fracturing I.G.’s skull. Appellant’s child-support obligation was suspended so that she could

travel to California to visit I.G., who had been placed in her father’s custody.

       The court held a permanency-planning hearing on October 10, 2012. At the

conclusion of the hearing, the court changed the goal of the case to termination of parental

rights and adoption, noting that appellant had stayed with Aaron for two months while this

case was open and still spoke to him on the phone when he was in prison, she had recently

been charged with DUI, and she had not demonstrated the ability to protect A.A. The court

held appellant in contempt of court for not having her psychological evaluation when she

was ordered to, sentencing her to thirty days in jail but suspending it on the condition that

she follow all future orders.

       In the petition for termination of parental rights, DHS alleged that termination of

appellant and Aaron’s parental rights was in A.A.’s best interest and included the following

grounds for termination:

       • That a juvenile has been adjudicated by the court to be dependent-neglected and
       has continued to be out of the custody of the parent for twelve (12) months and,

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       despite 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;3

       • That other factors or issues arose subsequent to the filing of the original petition for
       dependency-neglect that demonstrate that placement of the juvenile in the custody
       of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite
       the offer of appropriate family services, the parent has manifested the incapacity or
       indifference to remedy the subsequent issues or factors or rehabilitate the parent’s
       circumstances that prevent the placement of the juvenile in the custody of the parent;4

       • The juvenile has lived outside the home of the parent for a period of twelve (12)
       months, and the parent has willfully failed to provide significant material support in
       accordance with the parent’s means or to maintain meaningful contact with the
       juvenile.5

       The termination hearing was held on January 28, 2013. DHS caseworker Anastacia

Moore testified that A.A. was doing very well in his foster home, which was a permanent

placement, and was highly adoptable. She further testified that since the hearing in October,

appellant had been calling weekly, had been to counseling, and had maintained stable

housing and employment. However, DHS was concerned that, if A.A. were returned to

appellant, appellant might not be able to protect him once Aaron was released from serving

his one-and-a-half to two-year prison sentence.

       Appellant testified that she had lived at her current address for ten months and had

worked at the same restaurant for seven or eight months. She testified that she had been

receiving counseling and that she finally “got it” that she should not be in an abusive

relationship. She stated that she would never go back to Aaron and had filed for divorce on



       3
           Ark. Code Ann. § 9-27-341(b)(3)(B)(i) (Supp. 2011).
       4
       Ark. Code Ann. § 9-27-341(b)(3)(B)(vii).
       5
       Ark. Code Ann. § 9-27-341(b)(3)(B)(ii).

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November 2. Appellant acknowledged that she had twice before told the court that she was

getting a divorce but failed to follow through. Her last contact with Aaron was in October

or at the end of September when she communicated with him to let him know how his son

was doing. She stated that if she were in his situation she would want to know how her son

was doing; she stated that she had not kept Aaron updated since that time and did not think

that she should. Appellant testified that she went to court for her DUI charge after the

October hearing in this case. She pled guilty and was ordered to pay a $300 fine, attend six

hours of alcohol-abuse classes at Ozark Guidance, and go to a one-time Mothers Against

Drunk Driving course, all by March 2013. As of the termination hearing, appellant had done

none of these.

       Aaron Aguilera testified that he had received a twenty-year sentence, with fourteen

of those suspended, for first-degree battery of I.G.; the earliest he could get out of prison was

November 2013. He testified that he accepted that he and appellant were getting a divorce,

and he would not try to contact her when he got out of prison.

       DHS, CASA, and the attorney ad litem all recommended terminating parental rights.

At the close of the hearing, the court terminated appellant’s and Aaron’s parental rights to

A.A. The court explicitly found appellant not credible, stating that it did not “believe for

a minute her testimony today that she’s gonna stay away from A.A.’s daddy.” This appeal

followed.

                                I. Incorporating Prior Testimony

       First, appellant argues that the circuit court erred by incorporating into the record all

testimony in this case, as the court indicated by marking a box in the termination order


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stating that the court “grants DHS’s attorney’s motion to incorporate into the record all the

pleadings and testimony in this case,”6 although DHS had not made any such motion.

Appellant cites Arkansas Supreme Court Rules 6-9(c)(1) (2012), which provides:

         The record for appeal shall be limited to the transcript of the hearing from which the
         order on appeal arose, any petitions, pleadings, and orders relevant to the hearing
         from which the order on appeal arose, all exhibits entered into evidence at that
         hearing, and all orders entered in the case prior to the order on appeal.

Thus, appellant argues that she was not permitted to include in the record on appeal any of

the testimony from prior hearings that may have been considered by the trial court in making

the termination decision. She contends that incorporating testimony from prior hearings in

a wholesale manner, without her having the opportunity to include that testimony in the

record on appeal, places her “in the inequitable position of not being able to receive a review

of all of the evidence.”

         For the reasons set forth in Kelso v. Arkansas Department of Human Services, 2013 Ark.

App. 509, handed down this same day, we reject appellant’s argument and affirm on this

point.

                                  II. Sufficiency of the Evidence

         Next, appellant contends that termination of her parental rights to her son was not

supported by the record. Specifically, she challenges the findings that she failed to provide

significant material support to her child, that she failed to remedy the issue causing removal,



         6
        As appellant points out, this part of the court’s form termination order appears to be
based on a statutory provision that was repealed by Act 587 of 2007. Ark. Code Ann. § 9-
27-341(d)(2) previously required the court to take judicial notice and incorporate by
reference into the record all pleadings and testimony in the case incurred before the
termination-of-parental-rights hearing, if the parent was represented by counsel.

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and that subsequent issues arose after the filing of the original petition for dependency-

neglect.

       This court has set out the standard of review in termination-of-parental-rights cases

as follows:

               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 the child. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d
       761 (1997). A trial court’s order terminating parental rights must be based on findings
       proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp.
       2011); Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
       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. Dinkins,
       supra. On appeal, the appellate court 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.

Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 791, at 8–9, 387 S.W.3d 311, 316.

       Here, appellant argues that she had benefited from domestic-violence education and

that the trial court erred by not allowing her an opportunity to “fix” her initial decision to

stay with an abuser. However, the trial court’s findings were not clearly erroneous. The

issue of whether the condition that caused A.A. to be removed from his mother’s

custody—her failure to protect her children, despite knowledge of her husband’s abusive

behavior—was remedied hinges entirely on credibility. The trial court simply did not

believe that appellant had changed and would be able to protect A.A. We defer to the trial

court on matters of credibility. Anderson, supra.

       Only one ground is necessary to terminate parental rights. Ark. Code Ann. § 9-27-

341(b)(3)(B). Nonetheless, the trial court did not err in finding that appellant’s DUI

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conviction was a subsequent issue that demonstrates that placement of the juvenile in

appellant’s custody was contrary to the juvenile’s health, safety, or welfare.        Despite

appellant’s attempts to minimize the DUI, it is significant that, while under a court order to

refrain from using alcohol, appellant had recently incurred a criminal conviction for DUI and

had not taken steps to fulfill her obligations under her plea agreement.

       Affirmed.

       HARRISON and BROWN , JJ., agree.

       Leah Lanford, Arkansas Public Defender Commission, for appellant.

       Tabitha B. McNulty, County Legal Operations, for appellee.

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




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