                                    Cite as 2016 Ark. App. 418


                  ARKANSAS COURT OF APPEALS
                                          DIVISION III
                                          No. CV-16-230

                                                    Opinion Delivered: September   21, 2016
JOHN HELVEY
                                   APPELLANT        APPEAL FROM THE
                                                    WASHINGTON COUNTY
V.                                                  CIRCUIT COURT
                                                    [NO. JV15-266-3]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILD       HONORABLE STACEY
                     APPELLEES ZIMMERMAN, JUDGE
                                                    AFFIRMED


                                   BART F. VIRDEN, Judge

        The Washington County Circuit Court terminated the parental rights of appellant

 John Helvey to his daughter, A.H. (DOB: 11-9-2010). Helvey argues that there was

 insufficient evidence of grounds to support the termination and that the trial court erred in

 finding that termination was in A.H.’s best interest because there was insufficient proof of

 potential harm. We affirm.

                              I.       Termination of Parental Rights

        An order forever terminating parental rights shall be based on a finding by clear and

 convincing evidence that it is in the best interest of the child, including consideration of the

 likelihood that the child will be adopted if the termination petition is granted and the

 potential harm, specifically addressing the effect on the health and safety of the child, caused

 by returning the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015).
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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). Those grounds include

               (vii)(a) That other factors or issues arose subsequent to the filing of the original
       petition for dependency-neglect that demonstrate that return of the juvenile to 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 return of the juvenile to the custody of the
       parent.
       ....

              (ix)(a) The parent is found by a court of competent jurisdiction, including the
       juvenile division of circuit court, to . . . have subjected any juvenile to aggravated
       circumstances.

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a); (ix)(a)(3)(A).

       “Aggravated circumstances” means, among other things, that a determination has

been made by a judge that there is little likelihood that services to the family will result in

successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(ix)(a)(3)(B)(i).

                                    II.    Procedural History

       On March 25, 2015, the Arkansas Department of Human Services (DHS) received

a report that A.H.’s father had been arrested for two counts of delivery of

methamphetamine, possession of drug paraphernalia, and endangering the welfare of a

minor in the second degree. 1 The child was left with her paternal grandmother, Lisa

Marshall. Marshall appeared to be coherent at the time; however, when DHS contacted

Marshall on the telephone, she rambled, and her speech was slurred. DHS administered a




       1
           The report indicated that Helvey had sold methamphetamine in A.H.’s presence.

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drug test, and Marshall tested positive for methamphetamine and THC. 2 DHS placed a

seventy-two-hour hold on A.H. and filed a petition for emergency custody and

dependency-neglect, which was granted. The trial court subsequently found probable cause

to issue the ex parte order, and A.H. was placed in the custody of her maternal grandmother,

Tammy Preston. 3 The trial court ordered that there be no contact between A.H. and

Marshall.

       In a May 22, 2015 order, A.H. was adjudicated dependent-neglected as a result of

neglect and parental unfitness. The trial court noted that a protective-services case was first

opened on the family in December 2010 due to the parents’ drug use. A.H. was permitted

to remain in her parents’ custody as long as Preston was living in the home. In September

2012, A.H. was placed in foster care due to her parents’ continued drug use. Later, custody

of the child was given to Preston. In June 2014, A.H. was returned to Helvey’s custody and

remained with him until his arrest in March 2015 for drug-related offenses.

       On May 28, 2015, DHS filed a motion to terminate reunification services on the

basis that Helvey had subjected A.H. to aggravated circumstances. 4 A hearing was held on

July 10, 2015, to discuss DHS’s recommendation and for purposes of permanency planning.

In granting DHS’s motion, the trial court found that there was little likelihood that services

would result in successful reunification because Helvey had not remedied his drug use



       2
           THC stands for tetrahydrocannabinol, which is the primary ingredient in marijuana.

       3
           A.H.’s mother, Stephanie Preston, died in September 2014.

       Arkansas Code Annotated section 9-27-365(a)(1)(A) provides that any party can file
       4


a motion for no-reunification services at any time.
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despite numerous services; he was incarcerated and facing new drug charges; and it was the

second time A.H. had been removed from his custody as a result of his drug use. In the

permanency-planning order, the trial court noted that the goal was reunification but

established a concurrent goal of adoption. The trial court specifically found that DHS had

made reasonable efforts to provide Helvey with services but that A.H. could not be placed

with him within a time frame consistent with his daughter’s developmental needs. The trial

court again ordered that there be no contact between A.H. and Marshall.

       On July 15, 2015, Helvey pleaded guilty to possession of drug paraphernalia and two

counts of delivery of methamphetamine. The prosecutor’s “Short Report of Circumstances”

indicated that in March 2015, a digital scale, baggies, and a ledger had been found in

Helvey’s possession and that Helvey had sold methamphetamine to a confidential informant

on two occasions. Helvey was sentenced to serve four years in prison followed by a six-year

suspended sentence.

       On August 3, 2015, DHS filed a petition to terminate Helvey’s parental rights. A

hearing was held on December 16, 2015. Mark Thordsen, a family service worker at DHS,

testified that A.H. was bonded to Preston and doing well in school. He testified that he had

not received any proof that Helvey had addressed his history of substance abuse or otherwise

complied with the case plan, but he did recall that Helvey had told him that he was in drug

court and had resolved his criminal issues. Thordsen opined that Helvey had not made

significant, measurable progress in the case. He admitted, however, that he had been

assigned to A.H.’s case two weeks prior to the hearing. Thordsen further testified that he




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did not believe that there were any services DHS could provide to Helvey at that time in

order for A.H. to be returned to his custody.

       In conjunction with Thordsen’s testimony, DHS offered into evidence an October

16, 2015 report authored by Kerri Adams, the previous family service worker. Adams noted

that, while on ADC bond, Helvey was living with his mother and had reported to drug

court, participated in AA/NA meetings and drug screens, and completed parenting classes.

She further wrote in the report that

       [d]espite the services completed by John within his short parole[,] the Department
       continues to have concerns that John has continued to use and be involved with
       illegal substances despite being incarcerated multiple times and having previous open
       Protective Services cases and a previous Foster Care case with the Department that
       offered multiple services to remedy the continuing issues involving substance abuse
       and misuse.

       Tammy Preston testified that her daughter Stephanie had died from a drug overdose

in 2014. According to Preston, A.H. had lived with her for all but seventeen months of her

life and currently calls her “mom.” Preston stated that she thought it was in A.H.’s best

interest for Helvey’s parental rights to be terminated. She further said that she would pursue

adoption of A.H. if Helvey’s rights were terminated. When asked how she would feel if the

court were to instead award her permanent custody, Preston said,

       If I had a crystal ball, and I could look into it and see that [Helvey] was gonna be
       fine, I would be fine. But knowing that his mom was in drug court two years ago
       when I had [A.H.] or three years ago and that she still failed her drug test---it’s not
       that I don’t have faith in programs and things like that, but it’s up to people to make
       their own choices to change. And I have to make the choices I make every day to
       take care of a five-year-old and make sure that she’s safe and healthy and not around
       bad things. And it seems that I am the only person in the world to do that for her.
       And so I don’t think that I should want her to be with somebody that I don’t know
       is going to do that every day of his life.


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       According to Preston, Helvey had been incarcerated three times during A.H.’s life.

She said that the first time Helvey went to prison was after both he and Marshall had been

arrested for manufacturing methamphetamine and possession of marijuana. After Helvey

was released from prison, he lived in her home along with Stephanie and A.H. According

to Preston, Helvey was sent back to prison a second time on a parole violation after he had

tested positive for drugs. Helvey’s third time in prison was in connection with the March

2015 charges.

       Helvey testified that he was currently employed full time but that the job was “kind

of slow with the winter” and that he was living with his mother. After his arrest in March

2015, he was free on an ADC bond from August 5 to October 5, 2015. During that time,

he sought to participate in drug court because he wanted help with his addiction. Helvey

stated that he had also tested negative for drugs, attended AA/NA meetings almost daily,

and completed parenting classes. He was released from prison on November 25, 2015.

Helvey conceded that he had been in prison three times during A.H.’s short life and

acknowledged, “I know I can’t have my daughter now.” With regard to the last open DHS

case on the family, Helvey testified that he had received help from DHS and had been

provided with services. Helvey said that he had also received drug treatment in prison and

had participated in group counseling for drug addiction.

       At the conclusion of the hearing, the trial court granted DHS’s petition on grounds

under section 9-27-341(b)(3)(B)(vii)(a) and (ix)(a). In determining that termination was in

A.H.’s best interest, the trial court considered A.H.’s adoptability and the potential harm

that could result from returning her to Helvey’s custody.

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                                  III.        Standard of Review

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

Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276. 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. 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.

                                         IV.      Discussion

                                         A.       Grounds

       Helvey challenges both grounds on appeal; however, only one ground is necessary

to support termination of parental rights. Lively v. Ark. Dep’t of Human Servs., 2015 Ark.

App. 131, 456 S.W.3d 383. In finding that A.H. had been subjected to aggravated

circumstances under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a), the trial court determined

that there was little likelihood that further services would result in successful reunification

with A.H. The trial court considered that Helvey had been provided services by DHS in

the past, that he had received drug treatment and counseling in prison, and that, despite

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having had A.H. removed from his custody on more than one occasion, Helvey continued

to use drugs and was incarcerated multiple times for drug use.

       According to Helvey, the only evidence to support a finding of aggravated

circumstances was the fact that he had relapsed in the past. He contends that this does not

automatically mean he will relapse again. Helvey asserts that he had never before participated

in drug court and that he was now confident that he would be able to maintain his sobriety.

Helvey argues that the trial court did not even consider the documentary evidence or his

testimony regarding his present efforts as shown by the trial court’s statements from the

bench regarding drug court, which in relevant part were that “it’s not like drug court is

some voluntary program . . . . You go to drug court because they say you got criminal drug

charges and you have a drug problem and if you don’t complete it you’re gonna be going

to prison.”

       Helvey’s sentencing order indicates that entry into and completion of the drug-court

program was a condition of Helvey’s suspended sentence. In its order terminating parental

rights, the trial court set forth evidence of Helvey’s efforts, e.g., a drug assessment, multiple

negative drug screens, sign-in sheets for AA/NA meetings, certificates showing his

completion of twelve hours of parenting classes, and proof of his participation in drug court.

The trial court discussed drug court and stated that Helvey was fortunate to be in what it

considered “a very good program.” The trial court went on to say that “[Helvey’s] pretty

new in the program. He has, I think his attorney said, another year left to go.”

       Giving Helvey more time is contrary to the statutory mandate to provide

permanency for A.H. The intent of our termination statute is to provide permanency in a

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juvenile’s life in all circumstances where return to the family home is contrary to the

juvenile’s health, safety, or welfare, and it appears from the evidence that return to the family

home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s

perspective. Ark. Code Ann. § 9-27-341(a)(3). Further, a child’s need for permanency and

stability may override a parent’s request for additional time to improve the parent’s

circumstances. Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17, 372 S.W.3d 849.

       Under these circumstances, we cannot say that the trial court clearly erred in

terminating Helvey’s parental rights based on aggravated circumstances. Because only one

ground was necessary to support termination, we do not address the alternative ground of

subsequent factors.

                                      B.     Best Interest

       The court shall rely on the record of the parent’s compliance in the entire

dependency-neglect case and evidence presented at the termination hearing in making its

decision whether it is in the juvenile’s best interest to terminate parental rights. Ark. Code

Ann. § 9-27-341(a)(4)(B). In considering the best interest of the child, there is no

requirement that every factor considered be established by clear and convincing evidence;

rather, after consideration of all the factors, the evidence must be clear and convincing that

termination is in the best interest of the child. Renfro v. Ark. Dep’t of Human Servs., 2011

Ark. App. 419, 385 S.W.3d 285.

       Arkansas Code Annotated section 9-27-341(b)(3)(A) provides that the trial court is

required to consider the potential harm to the health and safety of a child that might result

from continued contact with a parent. The court is not required to find that actual harm

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would result or to affirmatively identify a potential harm. Dowdy v. Ark. Dep’t of Human

Servs., 2009 Ark. App. 180, 314 S.W.3d 722. The potential-harm evidence must be viewed

in a forward-looking manner and considered in broad terms. Samuels v. Ark. Dep’t of Human

Servs., 2014 Ark. App. 527, 443 S.W.3d 599.

       Helvey argues that there was insufficient evidence to support the finding of potential

harm. He maintains that the only evidence of potential harm was through the testimony of

Thordsen and Preston. He contends that, given Thordsen’s limited knowledge of the case,

his testimony was “of no evidentiary value” and that Preston’s testimony was “self-serving.”

This court will defer to the trial court’s evaluation of the credibility of the witnesses.

Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Contrary to

Helvey’s assertion, we hold that the trial court properly considered evidence of Helvey’s

past behavior in determining that potential harm could befall A.H. in her father’s custody.

Past behavior is correctly viewed as a predictor of potential harm that may likely result if a

child is returned to the parent’s custody. Dowdy, supra.

       Nevertheless, Helvey claims that DHS presented “the bare minimum of evidence”

in proving potential harm, which this court has cautioned against. Helvey is referring to a

footnote in Renfro in which this court suggested that DHS had presented the “bare

minimum” evidence in proving adoptability. Renfro, 2011 Ark. App. 419, at 20, n.3, 385

S.W.3d 285, 295 n.3. Helvey argues that the trial court relied on his history of drug abuse

and drug-related crimes and gave no consideration to the fact that he had sought out and

received permission to participate in drug court. There is, however, no indication that the

trial court gave no consideration to Helvey’s participation in drug court as discussed earlier.

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The trial court recognized that completion of the drug-court program was a condition of

Helvey’s suspended sentence and that whether Helvey could maintain his sobriety was

uncertain given that he had another year of drug treatment. Living in continued uncertainty

is, itself, potentially harmful to children. Bearden v. Ark. Dep’t of Human Servs., 344 Ark.

317, 42 S.W.3d 397 (2001).

       Helvey further contends that his rights should not have been terminated given that

there was a less restrictive alternative available, i.e., permanent custody with Preston. He

argues that this negated the compelling need for permanency and that instability was not an

issue. Helvey cites Lively v. Arkansas Department of Human Services, 2015 Ark. App. 131, 456

S.W.3d 383, where this court held that the trial court clearly erred in its consideration of

adoptability in its best-interest analysis. We said that termination of Lively’s rights would

not achieve permanency because the children were already in the permanent care and

custody of their mother. Here, Helvey does not challenge the adoptability of A.H. on

appeal, and adoptability became an issue when A.H.’s mother died. Helvey cannot equate

a parent’s continued custody of a child to A.H.’s placement with her grandmother.

       Helvey also cites Cranford v. Arkansas Department of Human Services, 2011 Ark. App.

211, 378 S.W.3d 851, where this court reversed the trial court’s determination that

termination of the Cranfords’ parental rights was in their child’s best interest. This court

noted that termination would not provide greater stability for the child because he was in

the custody of, and being cared for, by his maternal grandparents. This court stated that the

child and his parents had lived with the grandparents before the case had begun and that the

child would remain with his grandparents regardless of the result of the termination

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proceedings. The Cranford case is also distinguishable. In Cranford, the child was never placed

with strangers, whereas A.H. was in foster care. Also, the grandparents in Cranford did not

ask that the parents’ rights be terminated; whereas here, Preston testified that she thought

termination of Helvey’s parental rights would be in A.H.’s best interest.

       We recently rejected an argument similar to that raised by Helvey in this appeal. In

McElwee v. Arkansas Department of Human Services, 2016 Ark. App. 214, 489 S.W.3d 704,

the father argued that the trial court erred in terminating his parental rights instead of

choosing the less restrictive option of permanent custody with the child’s paternal aunt. This

court noted that a trial court is permitted to set termination and/or adoption as case goals

even when a relative is available and requests custody. Arkansas Code Annotated section 9-

27-338(c) lists permanency goals in order of preference. The fourth goal is authorizing a

plan for adoption with the department’s filing a petition for termination of parental rights

unless the juvenile is being cared for by a relative and the court finds that the relative has

made a long-term commitment to the child and termination of parental rights is not in the best

interest of the juvenile. Ark. Code Ann. § 9-27-338(c)(4)(A) (emphasis added). Permanent

custody with a relative is listed after adoption. Ark. Code Ann. § 9-27-338(c)(6). 5 We are

therefore not persuaded by Helvey’s contention that Preston’s custody of A.H. prevented

the trial court from terminating his parental rights.




       5
         While we recognize that there is an ongoing public-policy discussion regarding
when and how family placement should or should not be given priority or preference in
these cases, as of now, the legislature has not chosen to alter the statutory language cited
above. As such, when the proceedings reach the termination stage, adoption is given
preference over permanent custody with a relative.
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       Helvey further claims that the trial court gave no consideration to facts favorable to

him, that the trial court had made up its mind from the beginning that he could not benefit

from services given his history of drug use, and that termination of his parental rights was

punishment for his past mistakes. There is, however, no evidence to support such assertions.

       We cannot say that the trial court clearly erred in finding that potential harm could

result if A.H. were to be returned to Helvey’s custody and that termination of parental rights

was thus in A.H.’s best interest.

       Affirmed.

       ABRAMSON and GRUBER, JJ., agree.

       Tina Bowers Lee, Ark. Pub. Defender Comm’n, 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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