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                SUPREME COURT OF ARKANSAS
                                        No.   CV-13-858

MONICA CONTRERAS                                   Opinion Delivered   February 6, 2014
                                APPELLANT
                                                   APPEAL FROM THE WASHINGTON
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. JV-12-190]

ARKANSAS DEPARTMENT OF                             HONORABLE STACEY
HUMAN SERVICES; CHRISTINE                          ZIMMERMAN, JUDGE
WILLIAMS; AND J.G., A MINOR
CHILD                                              REVERSED AND REMANDED;
                        APPELLEES                  COURT OF APPEALS’ OPINION
                                                   VACATED.


                         KAREN R. BAKER, Associate Justice

       Appellant Monica Contreras appeals from the permanency-planning-hearing order and

closure order of the Washington County Circuit Court. The Court of Appeals affirmed the

circuit court’s decision, finding appellant’s argument that the evidence was insufficient was

not preserved. Contreras v. Ark. Dep’t. of Human Servs., 2013 Ark. App. 519, ___ S.W.3d

___. We granted review. When we grant a petition for review, we treat the appeal as if it

had been originally filed in this court. Russell v. Russell, 2013 Ark. 372, ___ S.W.3d ___.

Contreras argues that the circuit court erred in granting permanent custody of her child, J.G.,

to Contreras’s mother, Christine Williams. Contreras contends that there was not sufficient

evidence to show that such placement was in the best interest of J.G.1 We reverse and


       1
        In a civil, nonjury trial, a party who does not challenge the sufficiency of the evidence
does not waive its right to do so on appeal. Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861
(2000).
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remand the order of the circuit court.

       On February 22, 2012, the Arkansas Department of Health and Human Services

(DHS) exercised a seventy-two-hour hold on J.G. pursuant to Arkansas Code Annotated

section 9-27-303 (Supp. 2011). Contreras had dropped J.G. off at Huntsville Intermediate

School that morning and had not picked him up. Huntsville police were unable to contact

Contreras. The Washington County Circuit Court, Juvenile Division, filed an ex parte order

for emergency custody on February 27, 2012.

       The circuit court entered an adjudication and disposition order on March 29, 2012,

in which it adjudicated J.G. dependent-neglected. J.G. was temporarily placed in the custody

of Williams, with the goal of reunification with Contreras. The court required Contreras to

(1) cooperate with DHS; (2) keep DHS informed of where she was living and any changes

in telephone number or address; (3) participate in individual counseling; (4) refrain from use

of illegal drugs and alcohol; (5) submit to random drug screens weekly; (6) obtain and

maintain clean, safe, and stable housing and employment; (7) demonstrate ability to protect

J.G. and keep him safe from harm; and (8) maintain contact with her attorney.

       Two weeks after the adjudication order was entered, on April 13, 2012, at the behest

of DHS, the circuit court issued a bench warrant for failure to appear at a show-cause hearing

and for contempt of court, as Contreras had (1) failed to call DHS weekly; (2) failed to

cooperate with DHS; (3) failed to follow through in counseling; and (4) failed to submit to

weekly random drug screens. Contreras was arrested on the bench warrant on April 24, 2012,




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and sentenced to 30 days in jail on the contempt charges.2

       Five months later, on September 5, 2012, the circuit court entered an order finding

that Contreras had made some progress toward alleviating or mitigating the causes of J.G.’s

removal from the home and completing the court’s orders and requirements of the plan.

Contreras had completed a psychological evaluation, completed parenting classes, and had

passed five nonrandom drug screenings. The court also found that Contreras would be

moving into an apartment in Texas on August 31, 2012. However, Contreras had not

completed her drug-and-alcohol assessment, was on probation stemming from the charges in

Texas, and was involved in a custody case over J.G.’s younger half-brother, who lived with

his paternal grandmother. Although the circuit court found that it was in J.G.’s best interest

to remain in the custody of Williams, the goal of the case remained reunification.

       On November 14, 2012, the circuit court granted Contreras supervised visitation once

per month, on two consecutive days for at least one hour. A second agreed order for

supervised visitation was filed on December 20, 2012, awarding supervised visitation for at

least two hours.

       The circuit court held a permanency-planning hearing on January 18, 2013. A DHS

report, prepared the previous day, stated that Contreras had been compliant with her case

plan, noting she had (1) obtained a residence in Arlington, Texas, (2) been employed since

June 2012, (3) completed counseling, (4) been cooperative with the department and contacted


       2
        Contreras was released by an order filed May 1, 2012, so that she could travel to
Dallas, Texas, to appear before the criminal court there, where she pled guilty to two
unrelated charges and was sentenced to 10 days in jail.

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her caseworker regularly, (5) completed parenting classes in Texas in July 2012, and (6)

completed her psychological evaluation on June 20, 2012.

       Caseworker Anastacia Moore testified that J.G. was doing well in his current placement

with Christine Williams. J.G. was doing very well in school and was receiving counseling

twice a week. When the counselor approved visitation, J.G. began supervised visits, where,

at first, he displayed hostility towards his mother. But in subsequent visits “they seemed to

be getting along.”

       According to Moore, J.G. “looked like he was enjoying himself,” during his visit with

Contreras but he told her he was not. Moore stated that Contreras was currently in

compliance with the case plan. She stated that she was “conflicted” about whether it was in

J.G.’s best interest to return to mom because “he doesn’t want to be with his mother.” She

conceded, however, that some of J.G.’s aggression toward his mother concerned things he

would not have been aware of if he hadn’t been told about them by a third party.

       Christine Williams, Contreras’s mother, stated that J.G. was “doing great in our home”

and getting good marks in school. Williams asserted that “we love J.G. so much” and wanted

him to remain in her home. According to Williams, she gave J.G. a horse as “therapy.” She

asserted that Contreras was inadequate as a parent.

       Contreras confirmed that she was complying with the case plan. She denied Williams’s

allegations, and asserted that her mother and her new husband had substance abuse problems.

Contreras admitted to having been placed on probation because of a fight with a friend who

was a police officer and to serving ten days for a DWI. However, she claimed that she now


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seldom drank alcohol. Both the DWI and the fight predated the case plan as they occurred

before J.G. was removed from Contreras’s custody.

       Although J.G. attended the hearing, his wishes were made known by a letter in which

he stated that he wished to stay “with my nana and papa because I feel safe,” and also because

he has his “own room, bed, t.v., remote controlled helicopter, mp3 player, and game system.”

The attorney ad litem recommended that J.G. remain with his grandmother and that

Contreras continue to have supervised visitation.

       At the January 18, 2013 hearing, the circuit court noted that Contreras had made

“some good progress” but stated that she had not made “enough progress with [J.G.’s] trust.”

It granted permanent custody in Williams and closed the case. Less than eleven months had

elapsed since J.G. was adjudicated dependant/neglected. Despite granting permanent custody

of J.G. to Williams, the circuit court granted Contreras extended unsupervised visitation

during spring and summer breaks as well as on holiday weekends. The permanency-planning-

hearing order and closure order, filed on February 15, 2013, stated that Contreras was in

compliance with “some of” the case plan and court orders.

       This court reviews findings in dependency-neglect proceedings de novo, but we will

not reverse the trial court’s findings unless they are clearly erroneous. Lamontagne v. Ark.

Dep’t. of Human Servs., 2010 Ark. 190, 366 S.W.3d 351. 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.

Furthermore, this court defers to the trial court’s evaluation of the credibility of witnesses.


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Id.

       Contreras asserts that there was insufficient evidence presented in the permanency-

planning hearing to show that it was in J.G.’s best interest to grant permanent custody to

Williams. She contends that the circuit court erred in not following the requirement of

Arkansas Code Annotated section 9-27-338(c) (Supp. 2011), that J.G. be returned to his

natural parent. Contreras asserts that there was no evidence adduced in the permanency-

planning hearing to show that she was a threat to her child.

       We are mindful that this statute was amended by the Arkansas General Assembly

effective August 15, 2013, but because the hearing was held prior to that date, we apply the

version of the statute in place at that time. In pertinent part, it states as follows:

       (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 of the juvenile:
       (1) Returning the juvenile to the parent, guardian, or custodian at the permanency
       planning hearing if it is in the best interest of the juvenile and the juvenile’s health and
       safety can be adequately safeguarded if returned home;
       (2) Authorizing a plan to return the juvenile to the parent, guardian, or custodian only
       if the court finds that:
       (A)(i) The parent, guardian, or custodian is complying with the established case plan
       and orders of the court, making significant measurable progress toward achieving the
       goals established in the case plan and diligently working toward reunification.
       (ii) A parent’s, guardian’s, or custodian’s resumption of contact or overtures toward
       participating in the case plan or following the orders of the court in the months or
       weeks immediately preceding the permanency planning hearing are insufficient
       grounds for authorizing a plan to return home as the permanency plan.
       (iii) The burden is on the parent, guardian, or custodian to demonstrate genuine,
       sustainable investment in completing the requirements of the case plan and following
       the orders of the court in order to authorize a plan to return home as the permanency
       goal;
       (B) The parent, guardian, or custodian is making significant and measurable progress
       toward remedying the conditions that caused the juvenile’s removal and the juvenile’s
       continued removal from the home; and

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       (C) The return of the juvenile to the parent, guardian, or custodian shall occur within
       a time frame that is consistent with the juvenile’s developmental needs but no later
       than three (3) months from the date of the permanency planning hearing;

       ...

       (5) Authorizing a plan to obtain a permanent custodian, including permanent custody
       with a fit and willing relative.

       Here, the circuit court found that it was not in J.G.’s best interest to be placed in

Contreras’s care because J.G. had concerns about being in his mother’s custody and because

it was “supported by the record” that Contreras had not been stable.

Contreras asserts that this finding was error because no evidence was submitted to show that

J.G.’s health and safety would not be adequately safeguarded. We note that the circuit court

made no findings about whether J.G.’s health and safety could be safeguarded in his mother’s

custody, the caseworker testified that her report did not list any reasons why J.G. would be

unsafe in Contreras’s home. However, the safeguarding of the juvenile’s health and safety is

only part of the statutory requirement. Returning the juvenile must also be in the child’s best

interest. We must therefore determine whether the circuit court’s finding, that returning J.G.

to Contreras’s custody, was not in his best interest was clearly erroneous.

       Here, there was sufficient evidence to find that it was in J.G.’s best interest to remain

in Williams’s temporary custody. J.G. was doing well in school and had a close relationship

with his grandmother. Also, J.G. had not resolved his issues of trust concerning his mother.

Accordingly, there is sufficient evidence for the circuit court’s finding that it was not

appropriate to return J.G. to his mother at the time of the permanency-planning hearing in

accordance with 9-27-338(c)(1). However, there was not sufficient evidence for the circuit

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court to find that placement pursuant to section 9-27-338(c)(2), which authorizes the circuit

court to create a plan to return the juvenile to the parent within three months of the

permanency-planning hearing, was not in J.G.’s best interest.

       Such a plan is appropriate if: (1) the parent is complying with the case plan and making

measurable progress; (2) the parent is making significant progress toward remedying the

conditions that caused the removal; and (3) the return of the juvenile will occur within three

months.

       Here, the circuit court found that Contreras was in compliance with the case plan, and

that Contreras was making significant progress toward remedying the conditions that caused

the removal. Additionally, there was no finding that the return of the juvenile could not

occur within three months. In fact, we find it significant that the circuit court had only

recently ordered brief, supervised visitation. Yet, at the conclusion of the permanency-

planning hearing, the circuit court found it appropriate to order extended unsupervised

visitation.

       After reviewing the entire record, we are left with a definite and firm conviction that

a mistake was committed when the circuit court granted permanent custody of J.G. to

Williams and closed the case. Accordingly, we reverse the circuit court’s order and remand

for further proceedings consistent with this opinion.

       Reversed and remanded; court of appeals’ opinion vacated.

       HANNAH, C.J., CORBIN and DANIELSON, JJ., dissent.

       PAUL E. DANIELSON, Justice, dissenting. This case presents a very close question


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in my opinion and, because it does, I would affirm the circuit court’s order; I therefore

respectfully dissent.   As the majority opinion correctly states, we review findings in

dependency-neglect proceedings de novo, but we will not reverse the circuit court’s findings

unless they are clearly erroneous. See Porter v. Arkansas Dep’t of Health & Human Servs., 374

Ark. 177, 286 S.W.3d 686 (2008). 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. See id.

       In this case, I simply am not left with a definite and firm conviction that a mistake was

committed. As the majority acknowledges, there was sufficient evidence to sustain the circuit

court’s finding that, at the time of the permanency-planning hearing, it was not in J.G.’s best

interest to return him to his mother. Where the majority and I part ways is in its reversal and

remand for the circuit court’s further consideration of section 9-27-338(c), the plain language

of which provides that a permanency goal, listed in order of preference, “shall” be entered “in

accordance with the best interest of the juvenile.”

       After reviewing the circuit court’s findings and the record in this case, I cannot say that

the circuit court committed reversible error. While the majority finds that there was not

sufficient evidence such that the circuit court could have found that section 9-27-338(c)(2)

was an inappropriate goal, I myself can surmise at least one reason that such a plan might have

been excluded from the circuit court’s consideration in this case at the time of the

permanency-planning hearing. The section relied on by the majority requires that the return

of the juvenile to the parent shall occur “no later than three (3) months from the date of the


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permanency planning hearing.” The hearing in this matter was held in January, and it

involved an eleven-year-old child who was in school at that time and doing very well in his

studies. This same student had been forced to change schools several times throughout the

past few years; certainly the circuit court could have considered it in his best interest to stay

with his maternal grandmother rather than implement a plan under section 9-27-338(c)(2),

which would have required uprooting J.G. from his school in the middle of the school year

to meet the statute’s three-month time constraint.1 Admittedly, this is only speculation, but

it certainly gives me pause such that I cannot reverse and remand on this basis set forth by the

majority.

       Again, the question presented in this case is a close one; however, our standard of

review dictates a definite and firm conviction that a mistake has been made before we can

reverse. Because I am not left with such a conviction after reviewing the entire evidence, I

would affirm the circuit court’s order.

       HANNAH, C.J., and CORBIN, J., join.

       Janet Lawrence, for appellant.

       Tabitha B. McNulty, County Legal Operations, and Chrestman Group, PLLC, by: Keith

L. Chrestman, for appellees.




       1
        At the time of the hearing, Ms. Contreras was living in Texas.
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