                                 Cite as 2016 Ark. App. 66


                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                     No. CV-15-814



                                                 Opinion Delivered   February 3, 2016

 SIDNEY CROWLEY                         APPEAL FROM THE SEBASTIAN
                              APPELLANT COUNTY CIRCUIT COURT,
                                        FORT SMITH DISTRICT
 V.                                     [NO. JV-2003-392]

 ARKANSAS DEPARTMENT OF      HONORABLE LEIGH ZUERKER,
 HUMAN SERVICES AND MINOR    JUDGE
 CHILDREN
                   APPELLEES AFFIRMED


                          BRANDON J. HARRISON, Judge

       Sidney Crowley appeals the Sebastian County Circuit Court’s order that

terminated his parental rights to his three children. He argues that termination was not in

the children’s best interest. We find no error and affirm.

       On 28 April 2014, the Arkansas Department of Human Services (DHS) filed a

petition for emergency custody and dependency-neglect for thirteen-year-old S.C.,

twelve-year-old C.C., and eleven-year-old M.C. The accompanying affidavit explained

that DHS had received a referral on April 21 alleging educational neglect on the part of

Crowley and failure to protect on the part of Laura Blansett, the children’s mother. An

investigation revealed that Crowley, who was the custodial parent, had voluntarily left the

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children with their mother on April 20 “until such a time he could provide for them.”

The children reported that they had not been in school since 14 February 2013 and that

they had lived in their father’s truck on at least two occasions. The children also later

reported physical abuse perpetrated by Crowley, which included beating C.C. with a

metal stick and pointing a machete at C.C.’s throat. The children also said that Crowley

would deny them food as a form of punishment. On April 25, DHS exercised a seventy-

two-hour hold on all three children based on “Threat of Harm, Educational Neglect, and

not being able to ensure the safety of the juveniles if [Crowley] would pick them up from

Laura’s care.” The affidavit noted that Crowley had been investigated for educational

neglect and threat of harm in Oklahoma, that there had been a true finding on Crowley in

2003 for threat of harm and for striking a child, and that Crowley had past criminal

convictions for domestic battery, rape, terroristic threatening, and driving on a suspended

license.

       An ex parte order for emergency custody was granted on April 28, and at the May

2014 probable-cause hearing, the parties stipulated that probable cause existed at the time

the emergency order was signed and continued to exist. Blansett was awarded one hour

of supervised visitation; Crowley’s visitation was denied pending adjudication. DHS was

ordered to develop a case plan and conduct a staffing within thirty days.

       In June 2014, the circuit court adjudicated the children dependent-neglected,

specifically finding that the children “are at a substantial risk of harm due to environmental

neglect and physical abuse by the father.” The goal of the case was set as reunification

with the mother with a concurrent goal of permanent custody with a family member.

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Crowley, who did not attend the adjudication hearing, was not granted visitation.

Blansett was granted visitation and ordered to attend parenting classes, maintain

appropriate housing and transportation, submit to a psychological evaluation, attend

domestic-violence classes, and submit to random drug screens. The court ordered that

“[i]f the father presents himself to the Department and wishes to work services, he is

hereby ordered to complete the same services as the mother, in addition to anger

management classes.”

       The case was reviewed in November 2014, and the court found that Blansett had

complied with the case plan in all respects. Accordingly, the court authorized a trial home

placement with Blansett to commence immediately.             The review order noted that

Crowley had not contacted DHS to receive services and had not complied with the orders

of the court. The court ordered no contact between Crowley and the children.

       In January 2015, the court found that the trial home placement had been successful

and awarded custody of the children to Blansett. The court also found that Crowley had

made no progress on the case plan, had not complied with the court’s orders, and had no

contact with the children or DHS since the last review hearing.

       In February 2015, DHS filed a motion to terminate Crowley’s parental rights,

citing abandonment, dependency-neglect as a result of neglect or abuse that could

endanger the life of the child, an incapacity or indifference to remedying underlying issues

or factors, and aggravated circumstances.     At the termination hearing in April 2015,

Crowley testified that none of the allegations against him were true and that Blansett had

lied to DHS. He asserted that Blansett is a paranoid schizophrenic and a pathological liar.

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He also stated that he had never been given a copy of the case plan and that his case

worker had lied to him. He admitted that he had attended the staffing but explained that

he did not attend the adjudication hearing because it was “overwhelming.”             He

contended that if the physical-abuse allegations against him were true, then he would be

in jail. He stated that he had not provided for the children with food, clothing, or money

while they were in DHS’s custody because there was a no-contact order and because he

would be accused of “trying to buy them off.” He also asserted that the true finding in

2003 for threat of harm and striking a child was “another lie.” He admitted that he was a

registered sex offender, stemming from a rape charge in 2003, but explained that it was

only because he was “young, dumb, and stupid, and took [a] plea bargain.”

      As to his current circumstances, Crowley stated that he was staying with a friend

and had no income.      He also explained that he had a pending appointment with a

cardiologist for a heart murmur and another appointment for hernia surgery. He agreed

that if given the opportunity to complete the requirements of the case plan, he was ready

and able to do that. He admitted he was unable to work but stated that it would be in the

children’s best interest to be in his custody. He also admitted that he had used illegal

drugs, specifically methamphetamine, within the past week, and that he would probably

fail a drug test. DHS then requested a drug test, which showed that Crowley was positive

for methamphetamine, THC, and Oxycodone.

       Blansett testified that she married Crowley in 2000 and that they divorced in 2002.

She stated that he was extremely physically abusive, mostly to her but sometimes with the

children as well. She explained that Crowley had legal custody of the children but that he

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sent her a text that said he and the kids had been living in his truck and eating out of

dumpsters. According to Blansett, he asked her to keep the kids until he got back on his

feet. She stated that as soon as the children told her about the abuse, she contacted DHS

and got them involved. She explained that the children had been in her home since

November 2014 and that they were doing well. She said that they do not ask about their

father and that they have not expressed an interest in seeing him. She explained that she

was a stay-at-home mom and that her husband makes sufficient income to support the

family.

          Mary Isham, a family service worker, testified that she had been assigned to this

case for a little over a month. She explained that she had reviewed the file and that

Crowley had not tried to contact her. She testified that termination of Crowley’s parental

rights was in the children’s best interest because the children were afraid of Crowley. She

also stated that the children were adoptable but that adoptability was irrelevant in this case;

DHS planned to leave the children with their mother.

          At the conclusion of testimony and after hearing arguments from counsel, the court

found that it was in the best interest of the children to terminate Crowley’s parental rights.

The court found that

          he has effectively abandoned the juveniles. The juveniles were removed
          from his home April 28th of 2014. He has not seen the children during that
          time; he has not provided any amount of support to the children, has not
          contributed [monetarily], has not provided any food or clothing to them,
          has not followed the Case Plans or complied with the orders of the Court,
          has not been present at any of the hearings, other than the Probable Cause
          Hearing. The court believes that his lack of participation shows an
          indifference to remedy the issues before him. Those issues are continued
          drug abuse and the potential of severe harm to the children.

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In its written order, the court found as follows:

       In making the best interest determination, the Court has considered the
       issue of the adoptability of the juveniles and the risk of harm to the juveniles
       if there is continued contact with the father, Sidney Crowley. The Court
       notes that the issue of adoptability is not legally relevant in this matter. . . .
       The Court does find, however, that there is heightened risk of harm to the
       juveniles if the legal relationship between the juveniles and Sidney Crowley
       is not terminated. Based on this unacceptable risk of harm, the Court finds
       that it is in the best interests of the juveniles to terminate the parental rights
       of Sidney Crowley.

The court also found several statutory grounds for termination, namely, aggravated

circumstances, abandonment, and an incapacity or indifference to remedying underlying

issues or factors. Crowley filed a timely notice of appeal from the court’s order.

       A circuit court’s order that terminates parental rights must be based on findings

proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp.

2015); Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear

and convincing evidence is proof that will produce in the fact-finder a firm conviction on

the allegation sought to be established. Dinkins, supra. On appeal, we will not reverse the

circuit court’s ruling unless its findings are clearly erroneous. Dinkins, supra. 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 circuit judge to assess the witnesses’ credibility. Id.

       The intent of Ark. Code Ann. § 9-27-341(a)(3) is to provide permanency in a

child’s life in all instances in which returning the child to the family home is contrary to

the child’s health, safety, or welfare, and the evidence demonstrates that a return to the

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

perspective. An order forever terminating parental rights must be based on clear and

convincing evidence that the termination is in the best interests of the child, taking into

consideration the likelihood that the child will be adopted and the potential harm caused

by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).

       Crowley asserts that terminating his parental rights was unnecessary and not in the

children’s best interest. He argues that the children’s permanency was never at risk, as

they were in their mother’s care and will remain in her care, and that a no-contact order

would have sufficiently served the children’s best interest.        He contends that his

compliance with the no-contact order throughout the pendency of the case shows his

ability to abide by such an order and the lack of any future potential harm.

       In support, he cites two cases, Caldwell v. Arkansas Department of Human Services,

2010 Ark. App. 102, and Lively v. Arkansas Department of Human Services, 2015 Ark. App.

131, 456 S.W.3d 383, both of which involve a similar fact situation of termination of a

father’s parental rights with the child or children remaining in the care of the mother. In

Caldwell, this court concluded that, because the child remained in the permanent care of

her biological mother, termination of the father’s parental rights would not achieve

permanency, which is the goal of the statute.         Moreover, other factors, including

preservation of the child’s relationship with her paternal grandparents and the lack of any

evidence that the father had physically abused or harmed the child, weighed against

termination. And in Lively, this court found error in the circuit court’s best-interest

determination because there was no evidence of adoptability; in addition, we noted that

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terminating the father’s parental rights jeopardized the children’s relationship with their

paternal grandparents as well as the financial support that the father might provide the

children.

       However, Caldwell and Lively are distinguishable from the present case. Unlike

Caldwell, there was evidence in this case that Crowley had physically abused the children,

and according to the case worker, the children were afraid of him. Also, in both Caldwell

and Lively there was evidence of a strong relationship between the children and the

paternal grandparents, which was jeopardized by termination; here, we have no such

consideration. As such, this case is more akin to Hayes v. Arkansas Department of Human

Services, 2011 Ark. App. 21, in which this court held that where a parent subjected his

children to violence and abuse, termination of a father’s parental rights meets the purpose

of Ark. Code Ann. § 9-27-341(a)(3) by providing an irrevocable break from the father’s

violence toward them and their mother. Thus, we affirm the termination of Crowley’s

parental rights.

       Affirmed.

       VAUGHT and HIXSON, JJ., agree.

       Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

       Jerald A. Sharum, County Legal Operations, for appellee.

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




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