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                   ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CV-15-991



                                                    Opinion Delivered   May 11, 2016
JACQUELINE FERGUSON AND
CHRIS FERGUSON                                      APPEAL FROM THE LONOKE
                   APPELLANTS                       COUNTY CIRCUIT COURT
                                                    [NO. JV-14-89]
V.
                                                    HONORABLE BARBARA ELMORE,
ARKANSAS DEPARTMENT OF HUMAN                        JUDGE
SERVICES AND MINOR CHILDREN
                     APPELLEES                      AFFIRMED


                                LARRY D. VAUGHT, Judge

       Appellants Jacqueline and Chris Ferguson appeal from the Lonoke County Circuit

Court’s permanency-planning and termination-of-parental-rights orders as to their adopted

children, L.F.1 (DOB 9-22-08), L.F.2 (DOB 8-6-09), and Z.F. (DOB 9-7-10). The Fergusons

argue that the trial court clearly erred in failing to follow the preferential goals in the

permanency-planning statute, Arkansas Code Annotated section 9-27-338(c) (Repl. 2015),

when it authorized adoption and termination of parental rights instead of placing custody of

the children with Chris or with relatives. They contend that the trial court’s erroneous findings

in the permanency-planning order must be reversed, and because these findings led to the

termination order, it too must be reversed. We affirm.
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       On April 3, 2014, the Arkansas Department of Human Services (DHS) petitioned for

emergency custody of L.F.1, L.F.2, Z.F., and A.F., 1 alleging neglect, parental unfitness, and

physical abuse. An affidavit accompanying the petition alleged that DHS received a report that

Jacqueline had beaten L.F.2 and Z.F. (four and three years old at the time) with a vacuum-

cleaner attachment, that both boys had bruising that was getting worse, and that they both had

black eyes.

       In a second affidavit attached to the petition for emergency custody, Tanya Cross of

the Arkansas State Police Crimes Against Children Division stated she investigated the report

of abuse, which included interviews with Jacqueline and her children in their home. Cross

stated that a vacuum-cleaner attachment was lying on a table and that Jacqueline admitted

striking the boys with it. L.F.2 and Z.F. said their mom spanked them with a paddle or a spoon

and that their mom hurt them. Z.F. stated that his mom had given him a black eye. L.F.1,

L.F.2, and Z.F. stated that their mother sprayed them in the face and eyes with water, and

Cross observed a spray bottle containing water. Cross also spoke with B.K., the Fergusons’

foster child, and A.F., who was seventeen years old. They showed pictures they had taken of

L.F.2 with welts and bruising all over his body. When A.F. questioned Jacqueline about the

markings on L.F.2, she explained that they had been caused by an allergic reaction. B.K.

reported to Cross that Jacqueline punished L.F.2 and Z.F. by “whipping” them, giving them

extended time-outs (several hours or all day), pushing them to the floor, making them sleep

on the floor or in the bathroom for wetting the bed, or making them sit on the bed or stand



       1 The Fergusons’ daughter, A.F. (DOB 10-29-97), was named in the petition but was
later dismissed from the case and is not a party to this appeal.
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at the wall for hours. A.F. told Cross that she had witnessed Jacqueline spank the children in

the past and was concerned for their safety. Cross stated that Dr. Karen Farst of Arkansas

Children’s Hospital and the University of Arkansas for Medical Sciences Department of

Pediatrics, after seeing the pictures of the welts on L.F.2, opined that they were a result of an

impact injury, not a rash, consistent with being struck with a vacuum-cleaner attachment and

that L.F.2 had been abused. An ex parte order for emergency custody was entered.

       An adjudication hearing was held on July 1, 2014, and the trial court found that L.F.1,

L.F.2, and Z.F. were dependent-neglected based on Jacqueline’s physical abuse of the children

and Chris’s failure to protect them. 2 The goal of the case was reunification, and the trial court

ordered the Fergusons to comply with the case plan, which required, among other things, that

they maintain stable housing, attend individual and family counseling, participate in visitation,

submit to psychological evaluations, and complete parenting classes. Jacqueline was also

ordered to attend anger-management and domestic-violence classes. The children were placed

in the custody of provisional foster parents, Mindy and Edward Goldstick, the children’s

maternal aunt and uncle.

       A permanency-planning hearing was held on April 21, 2015. Forensic psychologist Dr.

Paul Deyoub testified that he performed evaluations on Jacqueline and Chris. Dr. Deyoub

stated that Jacqueline showed a great deal of defensiveness; denied having any problems or

weaknesses; and was rigid and unyielding. She adamantly denied having problems with or




       2The Fergusons appealed the adjudication order. The order was affirmed in Ferguson v.
Arkansas Department of Human Services, 2015 Ark. App. 99.


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abusing her children despite them having been removed from her custody on that basis and

her having been charged with domestic battery for abusing L.F.2. 3 Dr. Deyoub testified that

       [i]n this case, no meaningful therapy would do any good in an individual who saw no
       problem and no deficits . . . what is there to rehabilitate. In her mind there was nothing.
       And so . . . DHS and the Court would’ve been faced with an individual jumping through
       the hoops without any actual commitment to internal changes in herself. And so there
       is no basis for treatment or therapy. And that means that the children would not have
       been any safer in her custody . . . .

       Dr. Deyoub’s testing of Chris revealed that he was submissive, passive, and withdrawn;

he lacked attachment; and he was socially inept. Chris deferred everything to his wife, including

raising the children. Chris did not stand up for himself in his marriage, and Dr. Deyoub did

not believe that Chris stood up for his children. Dr. Deyoub reported that Chris denied that

Jacqueline abused their children and denied all evidence of abuse, including evidence presented

by A.F., who stated that she witnessed and took pictures of the abuse. Dr. Deyoub opined

that because of Chris’s continued support of his wife, he would not benefit from treatment or

therapy, which precluded him from parenting his children because he would not protect them.

Based on his evaluations, Dr. Deyoub opined that the Ferguson case was a failed adoption

and that reunification was impossible—opinions he testified that he rarely made. Finally, Dr.

Deyoub stated that it would be psychologically damaging for the children to be placed with

relatives who did not believe that they had been abused by their parent.




       3 Following the allegations of abuse raised in this juvenile proceeding, Jacqueline was
later convicted by a Lonoke County jury of second-degree domestic battery of L.F.2 and
sentenced to serve five years’ imprisonment with an additional one-year enhancement for
committing the offense in the presence of a child. She appealed her conviction, and it was
affirmed in Ferguson v. State, 2015 Ark. App. 722, 479 S.W.3d 25.
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       Chris testified that he did not believe that Jacqueline had abused their children and that

he intended to stay married to her. When she was released from prison, he wanted her to

return home so that they could raise the children together. He added that if he was forced to

choose between Jacqueline and his children, he would choose the children. Chris further

testified that he was unable to care for the children on his own due to his work schedule. He

had no objection to the Goldsticks having permanent custody of the children, but he did not

want his parental rights terminated. He said that he had complied with the case plan and had

benefited from services.

       Jacqueline’s brother, Edward Goldstick, and his wife, Mindy, testified that L.F.1, L.F.2,

and Z.F. had been living in their home for the past year and were doing well. Edward stated

that he did not know if the children had been abused because he did not see abuse and he did

not see bruises on them. Mindy testified that she did not believe that Jacqueline had abused

the children. Both Edward and Mindy wanted the children to be with Jacqueline and Chris but

stated that they were willing to keep the children permanently.

       DHS caseworker Christa Jones stated that Jacqueline and Chris complied with the case

plan in that they attended counseling and classes, maintained stable housing, visited the

children, and submitted to psychological evaluations; however, she said that they never

acknowledged the physical abuse, which prevented them from remedying the conditions that

caused removal and greatly affected their ability to reunify with the children. Christa testified

that Chris’s clear preference was to reunite with Jacqueline upon her release from prison and

that he wanted both of them to care for the children. Christa was concerned that Chris would




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not be able to protect the children from Jacqueline. She stated that DHS cannot force Chris

to separate from Jacqueline; it was a decision Chris had to reach on his own.

       Bridgett Rappold, the Lonoke County Department of Children and Family Services

supervisor, testified that over the past twelve months, the Fergusons indicated to her that they

were not going to change their position about the abuse allegation—they did not believe

Jacqueline had abused the children. According to Bridgett, there were no other services DHS

could have offered the Fergusons, and reunification was not possible because DHS could not

ensure the safety of the children. Bridgett also stated that DHS cannot require a parent to

admit fault. She stated that was something that needed to happen inherently within the parent.

       At the conclusion of the permanency-planning hearing, the trial court changed the goal

of the case to adoption and authorized DHS to file a petition to terminate the Fergusons’

parental rights. The trial court found that while both Jacqueline and Chris had completed the

services under the case plan, they had not benefited from the services because they had not

“changed anything internally.” Jacqueline continued to deny the abuse despite her felony

conviction for battering L.F.2. Chris continued to deny that Jacqueline had abused the

children. The court noted that Chris was unattached to the children, lacked foresight, stated

that he never saw any bruises, ignored his wife’s behavior, and denied that his daughter took

pictures that illustrated the abuse. The trial court found that Chris’s actions spoke louder than

his words, and just because he testified that he would choose the children over Jacqueline did

not mean that he would. The trial court found that Chris had already chosen Jacqueline over

his children. As such, the court found that the children were not safe in the care of the

Fergusons. The trial court also found that there were no additional services DHS could offer


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the Fergusons; therefore, there was no need to provide an additional three months of services.

Finally, the trial court found that although the Goldsticks had kept the children safe and had

complied with court orders, it was not in the best interest of L.F.1, L.F.2, and Z.F. to remain

in the Goldsticks’ custody because the Goldsticks did not believe that Jacqueline had abused

the children, which, according to Dr. Deyoub, was damaging to them.

       Thereafter, DHS filed a petition to terminate the Fergusons’ parental rights. At the

conclusion of the termination hearing, the trial court granted DHS’s petition, finding by clear

and convincing evidence that termination was in the children’s best interest and that DHS had

met its burden of proving the grounds alleged. This appeal followed. The Fergusons do not

challenge the sufficiency of the evidence supporting the termination decision. Instead, they

contend that the termination order must be reversed because the trial court clearly erred in

failing to follow the preferential goals in the permanency-planning statute. They contend this

error led to the termination of their parental rights. 4

       The burden of proof in dependency-neglect proceedings, including permanency-

planning hearings, is by a preponderance of the evidence. Anderson v. Ark. Dep’t of Human Servs.,

2011 Ark. App. 522, at 4, 385 S.W.3d 367, 369–70 (citing Ark. Code Ann. § 9-27-325(h)(2)(B)).

The standard of review is de novo, but the appellate court will not reverse unless the trial

court’s findings are clearly erroneous. Id., 385 S.W.3d at 370. The appellate court, giving due

regard to the trial court’s opportunity to judge the credibility of the witnesses, will not reverse

the trial court’s ruling in a dependency-neglect case unless the ruling was clearly erroneous. Id.,



       4 DHS and the attorney ad litem make several arguments claiming that the Fergusons’
appeal is procedurally barred; however, we hold that none have merit.
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385 S.W.3d at 370. A finding is clearly erroneous when, although there is evidence to support

it, the reviewing court is left with a definite and firm conviction that a mistake has been made.

Id. at 4–5, 385 S.W.3d at 370.

       The Fergusons first argue that the court clearly erred in authorizing adoption and

termination of their parental rights because pursuant to section 9-27-338(c)(3), Chris had

undisputedly complied with the case plan and made significant and measureable progress

toward remedying the issues that caused the removal of his children, entitling him to custody.

He claims that the expectation of DHS and the trial court that he separate from Jacqueline in

order to regain custody of his children was a requirement outside the bounds of the case plan

and that he was not advised of that requirement until four weeks prior to the permanency-

planning hearing. He adds that once he was advised of that requirement, his testimony was

that he would choose the children over Jacqueline.

       Chris is correct that he complied with the case-plan requirement in section 9-27-

338(c)(3)(A)(i). However, the statute also requires Chris to establish that he was making

significant, measurable progress toward achieving the goals of the case plan and toward

remedying the conditions that caused the juveniles’ removal. Ark. Code Ann. § 9-27-

338(c)(3)(A)(i), (B)(i)(a). We hold that the trial court did not clearly err in finding that Chris

failed to prove that he met these requirements by a preponderance of the evidence.

       Dr. Deyoub testified that Chris was unattached and apathetic toward his children. He

was passive and submissive to Jacqueline. He adamantly denied that Jacqueline had abused the

children, despite direct evidence of abuse provided by A.F., and he supported Jacqueline

throughout the case. Accordingly, Dr. Deyoub testified that he did not believe Chris would


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protect the children from Jacqueline and that he would not benefit from any further services.

Dr. Deyoub concluded that reunification was impossible.

       Likewise, DHS representatives Christa and Bridgett testified that Chris made it clear to

them throughout the case that he did not believe Jacqueline had abused the children, that his

position would not change, and that once Jacqueline was released from prison they would raise

the children together. Christa and Bridgett testified that it was clear that Chris’s preference

was to remain married to Jacqueline, which was a concern because they feared that Chris would

not be able to protect the children from Jacqueline, who adamantly denied having abused

them. According to Christa and Bridgett, Chris’s position prevented him from making

significant, measurable progress toward remedying the conditions that caused removal and

from reunifying with the children. They added that there were no services to be offered to

Chris under these circumstances and that DHS could not force Chris to separate from

Jacqueline; it had to be Chris’s decision.

       Chris emphasizes his testimony that he would leave Jacqueline in order to gain custody

of his children. However, the trial court did not believe Chris. The trial court found that his

actions spoke louder than his words and the fact that he said for the first time at the hearing

that he would choose the children over Jacqueline did not mean that he would. The trial court

believed that Chris had already chosen Jacqueline over his children. We give a high degree of

deference to the trial court because it is in a far superior position to observe the parties before

it and to judge the credibility of the witnesses. Henson v. Ark. Dep’t of Human Servs., 2014 Ark.

App. 225, at 7, 434 S.W.3d 371, 375. Therefore, we hold that the trial court did not clearly err




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in not authorizing the third preferential goal—Chris’s custody of the children—pursuant to

section 9-27-338(c)(3).

       Alternatively, the Fergusons argue that the trial court clearly erred in authorizing

adoption and termination under the fourth preferential goal set forth in section 9-27-338(c)(4).

Pursuant to section 9-27-338(c)(4)(A)(i)–(ii), the trial court shall authorize a plan for adoption

with the department’s filing of a petition for termination of parental rights unless the juvenile

is being cared for by a relative, the court finds that the relative has made a long-term

commitment to the child and the relative is willing to pursue guardianship or permanent

custody, and termination of parental rights is not in the best interest of the juvenile. The

Fergusons contend that the trial court erred in not applying the exception within the fourth

preferential goal because the evidence demonstrated that the Goldsticks were relatives who

made a long-term commitment to care for the children and who were willing to pursue

permanent custody of them.

       The Fergusons ignore the best-interest finding that is required in order to satisfy the

relative-placement exception. In the trial court’s permanency-planning order, it found that

termination of parental rights was in the best interest of the children and conversely that it

was not in their best interest to be permanently placed in the Goldsticks’ custody. This finding

is not clearly erroneous. The Goldsticks did not believe that Jacqueline had abused the

children, and Dr. Deyoub opined that it would be psychologically damaging to the children to

be placed with relatives who did not believe that they had been abused by their parent. Based

on this evidence, we hold that the trial court did not clearly err when it authorized the fourth

preferential goal of adoption and termination of parental rights—rejecting the exception for


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relative placement—pursuant to section 9-27-338(c)(4). Therefore, we affirm the trial court’s

permanency-planning order, and accordingly, its order terminating the Fergusons’ parental

rights.

          Affirmed.

          GLADWIN, C.J., and HIXSON, J., agree.

          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellants.

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

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




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