                                   Cite as 2017 Ark. App. 252


                    ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CV-16-1143

                                                   Opinion Delivered: April   26, 2017
ANGEL SIMS DUNCAN
                                 APPELLANT
                                                   APPEAL FROM THE SEBASTIAN
V.                                                 COUNTY CIRCUIT COURT,
                                                   FORT SMITH DISTRICT
ARKANSAS DEPARTMENT OF                             [NO. 66JV-14-714]
HUMAN SERVICES AND MINOR
CHILDREN
                    APPELLEES                      HONORABLE LEIGH ZUERKER,
                                                   JUDGE

                                                   AFFIRMED


                                  BART F. VIRDEN, Judge

        The Sebastian County Circuit Court terminated the parental rights of appellant

 Angel Sims Duncan to her two children, N.D. (DOB: 9-23-2014) and Z.D. (DOB: 12-23-

 2015). Duncan challenges the statutory grounds supporting termination and the trial court’s

 best-interest finding. We affirm.

                                       I. Procedural History

        On December 17, 2014, the Arkansas Department of Human Services (DHS) filed a

 petition for emergency custody and dependency-neglect as to N.D. In an affidavit attached

 to the petition, family service worker Courtnee Boerjan attested that a protective-services

 case had been opened when N.D. tested positive for THC at the time of her birth. Duncan

 initially tested positive for only THC, 1 but subsequent tests were positive for other illicit



        1
            THC, or tetrahydrocannabinol, is the active chemical in marijuana.
                                Cite as 2017 Ark. App. 252

drugs, including amphetamines, methamphetamine, and phencyclidine (PCP). An ex parte

order for emergency custody was entered, and the trial court later found that probable cause

existed for issuance of the emergency order.

       In an adjudication order entered April 24, 2015, the trial court found that N.D. was

dependent-neglected due to Duncan’s drug abuse. The goal was reunification, and the trial

court ordered Duncan to comply with several conditions, including recommended drug

treatment. In a review order dated September 11, 2015, the trial court found that Duncan

was in her third drug-treatment program and had only four negative drug screens since the

case was opened. The trial court also noted that Duncan was pregnant and due to give birth

in December 2015.

       When Z.D. was born, DHS took a seventy-two-hour hold on him. On December

29, 2015, DHS filed a petition for emergency custody and dependency-neglect as to Z.D.

In an affidavit attached to the petition, family service worker Natosha Mantooth attested

that Duncan had tested positive for methamphetamine while in residential treatment on

September 23, 2015, and that Duncan reported that she had relapsed in November 2015

while pregnant by taking Xanax not prescribed to her. An ex parte emergency custody order

was entered. The trial court subsequently found probable cause for issuance of the order.

       On January 7, 2016, the trial court entered a permanency-planning order pertaining

to N.D. The trial court found that DHS had made reasonable efforts to provide family

services to achieve the goal of reunification. The trial court noted that Duncan had complied

with several case-plan goals and court orders. She was further ordered, among other things,




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to submit to random drug screens and hair-follicle tests, complete drug treatment, and attend

Narcotics/Alcoholics Anonymous (NA/AA) meetings at least twice per week.

       On April 7, 2016, Z.D. was adjudicated dependent-neglected due to Duncan’s

stipulation of parental unfitness and inadequate supervision due to her substance-abuse

issues. A fifteen-month review order was entered the same day indicating that Duncan had

only partially complied with the case plan. She was again ordered to complete a drug-and-

alcohol assessment and follow the recommendations.

       DHS filed a petition for termination of parental rights on May 23, 2016, alleging

grounds under Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2015), including (i)(a) (twelve-

month/failure to remedy), (ii)(a) (failure to provide significant material support), (vii)(a)

(other subsequent factors or issues), and (ix) (a)(3) (aggravated circumstances). A hearing on

DHS’s petition was held July 8, 2016.

                                   II. Termination Hearing

       Duncan testified that she was twenty-nine years old and that she had been dealing

with drug addiction since she was fifteen. She said that the longest period that she had

remained sober was three years. Duncan stated that she regretted “shooting up” with drugs

throughout her pregnancy with N.D.

       Duncan stated that she is currently in drug treatment and attends group and individual

counseling twice per week. She said that she last used THC at the end of March 2016. She

claimed that she had remained “clean” from September through December 2015 but had

relapsed on “weed” and methamphetamine after she had given birth to Z.D. Duncan

testified that she did not think she would have relapsed had she been given the opportunity


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to take Z.D. home with her. Duncan said that if she were drug tested that day, the result

would be negative. She asserted that her drug use was not a problem.

       As for her employment, Duncan said that she was still “fighting” for disability benefits

due to her diagnoses of post-traumatic stress disorder, anxiety, and a personality disorder.

Duncan stated that she had acquired a two-bedroom home through HUD (Housing and

Urban Development Department) and that she now has transportation because her

stepfather had given her a van. Duncan said, “I just want to be a mother to my kids,

something that I didn’t have.” She asked for more time to reunify with N.D. and Z.D.

       Mantooth, a DHS family service worker, testified that Duncan was a no-show for

her hair-follicle tests on January 15, 2015; June 5, 2015; February 9, 2016; April 27, 2016;

and June 30, 2016. She said that Duncan’s last positive drug screen for THC was on June

14, 2016. Before that, she was positive for amphetamines on April 8, 2016. On March 29,

2016, Duncan was positive for methamphetamine and amphetamines.

       In describing Duncan’s drug-treatment history, Mantooth testified that Duncan

initially had an assessment with Horizon on January 2, 2015, but that she did not complete

that program. She entered Gateway around May 21, 2015, but did not comply due to

behavioral issues. Duncan went to Decision Point on August 22, 2015, and was discharged

due to smoking or being caught with cigarettes. She entered Gateway again on September

22, 2015, but left on October 15, 2015, due to behavioral issues. Mantooth said that Duncan

is currently enrolled at Horizon.

       Mantooth testified that she was concerned about the inconsistency of Duncan’s

behavior and that she did not think N.D. should wait any longer to see whether Duncan’s


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fifth attempt at drug treatment would be successful. Mantooth further stated that, if Duncan

could not prove her sobriety to regain custody of N.D., DHS should not be required to

“start that all over again” to see whether Duncan could maintain her sobriety for Z.D.

       Mantooth stated that, regarding Z.D.’s father, Duncan had told her that she was

aware that he had been charged with promoting prostitution and that she had worked for

him. Mantooth took that to mean that Z.D.’s father was Duncan’s “pimp.” Earlier, Duncan

had testified that she was aware that Z.D.’s father “went down” for child endangerment in

2013 but that she did not have any concerns with his being awarded custody of Z.D.

because, when he interacts with his other kids, “there is no doubt that he’s a good dad.”

       According to Mantooth, while Duncan was excited to see N.D. at visitation, N.D.

did not want to go to her mother and at times cried and “[threw] a fit” until the foster

parents stepped in to calm her. Mantooth said that “everything about [Duncan’s children]

makes them adoptable.” She described the children as “always happy”; she pointed out that

the children were young; and she said that they had no medical or emotional issues that

would prevent their adoption. Mantooth testified that the children are currently in a

placement where the family has expressed interest in adopting them.

       Rebecca Hamilton, foster parent to N.D. and Z.D., testified that the children are

thriving in her home. She was concerned, however, about visitation between Duncan and

N.D. She said that N.D. had begun pulling out chunks of her hair before and after visitation.

Hamilton said that, after N.D.’s visits with Duncan had been discontinued, N.D. stopped

pulling out her hair.




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                             III. Order Terminating Parental Rights

       The trial court found grounds for termination of Duncan’s parental rights under Ark.

Code Ann. § 9-27-341(b)(3)(B)(i)(a) and 9-27-341(b)(3)(B)(ix)(a)(3)(B). Specifically, the

trial court found that N.D. had been adjudicated dependent-neglected due to the mother’s

substance-abuse issues and had been out of Duncan’s custody for over a year. 2 The trial

court found that DHS had offered numerous services to achieve reunification. The trial

court further found that Duncan had recently acquired stable housing through HUD and

had completed parenting classes but that she had not obtained and maintained employment.

The trial court found that, although Duncan had complied by submitting to drug tests, she

had continued to test positive “for methamphetamines, among other things,” and had not

completed drug treatment. The trial court concluded that Duncan was still in no condition

to have the children returned to her.

       The trial court also found aggravated circumstances in that there was little likelihood

that additional services would result in successful reunification between Duncan and her

children. The trial court found that DHS had provided many services, including case

management, clothing vouchers, visitation, PACE (Project for Adolescent and Child

Evaluations), referrals for parenting classes, hair-follicle testing, counseling, random drug

screens, inpatient drug treatment, and transportation. The trial court noted that Duncan had

been receiving services over the course of almost nineteen months but had failed to remedy

her situation. The trial court concluded that there was little likelihood that offering


       2
        Although the trial court found that the twelve-month/failure-to-remedy ground
also applied to Z.D., we agree with the State’s concession that this ground could not have
applied to Z.D. in that he was only six months old at the time of the hearing.

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additional services would result in reunification in a timeframe consistent with the children’s

ages and developmental needs.

       Finally, the trial court found that it was in the children’s best interest to terminate

Duncan’s parental rights. The trial court specifically found that the children are adoptable

and that the children would be at risk of serious harm if returned to Duncan because she

still has substance-abuse issues after numerous attempts at drug treatment.

                                    IV. Standard of Review

       Termination-of-parental-rights cases are reviewed de novo. Tillman v. Ark. Dep’t of

Human Servs., 2015 Ark. App. 119. Grounds for termination of parental rights must be

proved by clear and convincing evidence, which is that degree of proof that will produce

in the finder of fact a firm conviction of the allegation sought to be established. Id. The

appellate inquiry is whether the trial court’s finding that the disputed fact was proved by

clear and convincing evidence is 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 resolving the clearly

erroneous question, we give due regard to the opportunity of the trial court to judge the

credibility of witnesses. Id.

       In order to terminate parental rights, a trial 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-


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341(b)(3)(A)(i) & (ii). The trial court must also find by clear and convincing evidence that

one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B).

Proof of only one statutory ground is sufficient to terminate parental rights. Tillman, supra.

Termination of parental rights is an extreme remedy and in derogation of a parent’s natural

rights; however, parental rights will not be enforced to the detriment or destruction of the

health and well-being of the child. Id.

                                          V. Discussion

                                   A. Statutory Grounds

       As for N.D., Duncan argues that, although N.D. tested positive at birth for THC,

she was not removed from the home because of Duncan’s THC use; rather, she was

removed when Duncan tested positive for methamphetamine. Duncan contends that, at the

time of the termination hearing, she had remedied her use of methamphetamine in that she

had last tested positive for that drug in March 2016. Duncan contends that the trial court

erred in not considering evidence of her recent sobriety and by speculating that she would

relapse in the future.

       N.D. was removed from Duncan’s care in December 2014 due to Duncan’s illegal

drug abuse in general. The termination hearing was held in July 2016. During the time that

N.D. was out of Duncan’s custody—over eighteen months—Duncan attempted drug

treatment unsuccessfully four times. At the time of the hearing, Duncan was making her

fifth attempt to complete drug treatment. Even though Duncan had received some drug

treatment and was attending NA/AA meetings and counseling, she continued to test positive

for illegal drugs, including a positive test for THC only one month prior to the termination


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hearing. We concede that Duncan had several negative drug tests just prior to the

termination hearing, but evidence that a parent begins to make improvement as termination

becomes more imminent will not outweigh other evidence demonstrating a failure to

comply and to remedy the situation that caused a child to be removed in the first place. See,

e.g., Tillman, supra. We cannot say that the trial court clearly erred in finding this ground as

to N.D.

       Duncan contends that there was no evidence to support the aggravated-

circumstances ground, which applied to both children. Duncan asserts that the evidence

showed that she had achieved sobriety and was continuing to work on maintaining that

sobriety. Duncan argues that, in the rush to achieve permanency for juveniles, the ability of

parents like Duncan to demonstrate sobriety and stability is often inhibited. She argues that

it should not be enough to say that the possibility of another relapse proved this ground.

       There must be more than a mere prediction or expectation on the part of the trial

court that additional reunification services will not result in successful reunification.

Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). After

Z.D. was born, there were eleven positive drug screens between January 4, 2016, and April

8, 2016. After that, Duncan tested negative from April 14 through June 10. On June 14,

2016, however, after DHS had filed its petition to terminate her parental rights, Duncan

tested positive for THC. The trial court was apparently not convinced that Duncan had

“achieved sobriety” given that she could stay sober for only approximately two months at a

time. Duncan had failed in her first four attempts to complete drug treatment for reasons

that appeared to be within her control. We cannot say that the trial court clearly erred in


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determining that more services, given her history of failure with drug treatment, would

result in successful reunification with both N.D. and Z.D.

                               B. Best-Interest Determination

       Duncan does not challenge the adoptability finding of the best-interest analysis;

instead, she contends that finding potential harm based on the mere possibility of a future

relapse is too speculative to support such a finding.

       Potential-harm evidence must be viewed in a forward-looking manner and

considered in broad terms. Tillman, supra. A parent’s past behavior is often a good indicator

of future behavior. Shaffer v. Ark. Dep’t of Human Servs., 2016 Ark. App. 208, 489 S.W.3d

182. There are many cases that stand for the proposition that continued drug use by a parent

demonstrates potential harm. Jones v. Ark. Dep’t of Human Servs., 2016 Ark. App. 615, 508

S.W.3d 897; Jackson v. Ark. Dep’t of Human Servs., 2016 Ark. App. 440, 503 S.W.3d 122;

Tillman, supra; Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7. We

cannot say that the trial court clearly erred in determining that termination of Duncan’s

parental rights was in the children’s best interest.

       Affirmed.

       HARRISON and GLOVER, JJ., agree.

       Tina Bowers Lee, Arkansas Public Defender Commission, 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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