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                 ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                       No. CV-14-1058


JAMES COX                                          Opinion Delivered   APRIL 1, 2015
                                APPELLANT
                                                   APPEAL FROM THE GARLAND
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. 26JV-14-284

ARKANSAS DEPARTMENT OF                             HONORABLE VICKI SHAW COOK,
HUMAN SERVICES and MINOR                           JUDGE
CHILDREN
                     APPELLEES                     AFFIRMED



                         ROBERT J. GLADWIN, Chief Judge


       Appellant James Cox appeals from the Garland County Circuit Court’s September 24,

2014 order terminating his parental rights to his children, K.C. and Z.C. Appellant argues

that the termination of parental rights (TPR) was in contravention of Arkansas Code

Annotated section 9-27-341(a)(3) (Supp. 2013) and was not in the children’s best interest.

We affirm.

       On March 16, 2014, the Arkansas Department of Human Services (ADHS) responded

to a request for a safety assessment based on allegations that appellant provided alcohol to, and

had sexual contact with, D.B.—a teenage girl with whom he stood in loco parentis. Appellant

had been in a long-term relationship with D.B.’s mother, Amanda Weston, and had two

children with her—K.C. and Z.C. ADHS entered into a safety agreement with Ms. Weston

in which she was allowed to retain custody of the children if she did not allow appellant to
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have contact with them; however, on April 6, 2014, ADHS received information that Ms.

Weston was not abiding by the agreement. As a result, ADHS placed an emergency hold

on K.C. and Z.C., along with Ms. Weston’s two children from a prior relationship. The

circuit court entered an order of emergency custody, as well as a subsequent order finding

probable cause to maintain the children in ADHS custody, and appellant was referred for a

psychological evaluation pending the adjudication hearing.

       Appellant completed the psychological evaluation with forensic psychologist Dr.

George DeRoeck on April 29, 2014. Appellant also completed six weekly sessions with

therapist Lee Lowder, to whom ADHS referred appellant for counseling, and Mr. Lowder

issued a narrative report just prior to the adjudication hearing.

       On June 25, 2014, the circuit court held an adjudication hearing and found that the

children were dependent-neglected due, in part, to appellant’s sexual abuse of D.B. The

circuit court further found aggravated circumstances based on that abuse, and applied the

aggravated-circumstances findings to K.C. and Z.C. as well, based on their being half-siblings

of D.B., whose life was endangered by appellant when he provided sufficient alcohol to D.B.

that her blood-alcohol level was .29 at the time of the incident. The circuit court allowed

appellant supervised visitation with K.C. and Z.C. only, with the length of the visits to be

within the discretion of the children’s therapist, David Todd. The goal of the case was

reunification with Ms. Weston, with ADHS to provide appellant with services.

       On July 1, 2014, before the adjudication order was entered, ADHS filed a motion for

reconsideration, seeking to set aside a portion of the adjudication order regarding appellant’s


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visitation. ADHS asserted that Mr. Todd, who testified at the adjudication hearing, was not

aware that the allegations surrounding the incident with D.B. had been substantiated, that

since the adjudication, appellant had been formally charged with sexual assault, and that the

caseworker and the therapist had recommended visitation only because they thought the goal

would be reunification with both parents. ADHS further stated that it would be seeking

termination of appellant’s parental rights because the goal was now “reunification with the

mother.”

       Appellant’s counsel filed a response, and the circuit court held a hearing on July 9,

2014. The circuit court entered an order rescinding appellant’s right to supervised visitation

with his children and denied an oral motion made by appellant’s counsel to appoint a separate

attorney ad litem for K.C. and Z.C.

       On July 18, 2014, ADHS filed a formal TPR petition as to appellant, specifically

asserting that the termination statute allowed termination of only one parent’s parental rights.

ADHS alleged that the potential harm to the children if they were returned to appellant’s

custody was a risk of neglect and abuse—sexual and physical—based on inadequate

supervision because of alcohol consumption.

       On July 21, 2014, appellant’s counsel filed a motion to reconsider the order rescinding

appellant’s visitation. The record does not reflect a written order addressing appellant’s

motion.

       On September 24, 2014, the circuit court held a hearing on ADHS’s TPR petition.

At that hearing, Mr. Todd testified and acknowledged that he had never talked to appellant,


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even though Dr. DeRoeck had recommended that supervised visitation be implemented to

assess the quality of the interaction between appellant and his children. Mr. Todd also noted

that both children loved their father and talked about him affectionately, although they were

both fearful of the situation that existed when their parents were together. Mr. Todd

stopped short of stating that he would recommend TPR, although he stated that there was

always a concern that appellant’s behavior toward D.B. could be repeated in the future with

his own children. On cross-examination, Mr. Todd admitted that there were no allegations

of any abuse toward appellant’s own children, that the domestic violence was between

appellant and Ms. Weston, and that it would be speculative to say how the children would

be influenced if appellant could have visitation with them separate and apart from a

relationship with Ms. Weston.

       Appellant’s therapist, Mr. Lowder, who had seen appellant weekly for four months

at ADHS’s request, opined that appellant did not pose a threat to his children. Mr. Lowder

stated that while appellant used extremely poor judgment in regard to the incident with D.B.

that initiated ADHS’s involvement, he believed that the incident was due to appellant’s

“intemperate use of alcohol,” and he did not believe appellant was a predator.

       The only other witness to testify was ADHS caseworker Jamie Moran who

recommended TPR because of the potential harm of sexual abuse to appellant’s own

children or the risk of him providing them with alcohol. She further stated that appellant

did not seem to think that what happened was a “big deal,” but this testimony was

contradicted by Mr. Lowder.


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       The circuit court granted ADHS’s TPR petition. While the circuit court specifically

noted that Mr. Lowder’s testimony was credible, it found that it was in the best interest of

the children to terminate appellant’s parental rights, even though the goal was reunification

with Ms. Weston, because of appellant’s “reaction to therapy and lack of judgment and

insight as to his actions of abuse and neglect . . . , [his] potential to abuse alcohol, and

domestic violence in the home . . . .” On September 24, 2014, the circuit court entered an

order terminating the parental rights of appellant to K.C. and Z.C. Appellant filed his timely

notice of appeal on October 1, 2014.

       The purpose of terminating a parent’s rights to his or her child is to provide

permanency in the child’s life when 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). A court may order TPR if it finds there is an “appropriate placement plan”

for the child, section 9-27-341(b)(1)(A), and further finds by clear and convincing evidence

that TPR is in the best interest of the child, taking into consideration the likelihood of

adoption and the potential harm to the health and safety of the child that would be caused

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

Finally, there must be clear and convincing evidence supporting one or more of the grounds

for TPR listed in section 9-27-341(b)(3)(B).1


       1
       In the adjudication order, the circuit court found that the facts were proven by the
higher standard “clear and convincing,” otherwise reserved for orders of termination.
Because appellant did not appeal from that order, those findings cannot be contested and
automatically carry over as grounds supporting termination. See, e.g., Hannah v. Ark. Dep’t
of Human Servs., 2013 Ark. App. 502.

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       A circuit court’s order terminating parental rights must be based upon findings proven

by clear and convincing evidence. See Aday v. Ark. Dep’t of Human Servs., 2010 Ark. App.

677. Clear and convincing evidence is defined as that degree of proof that will produce in

the fact-finder a firm conviction as to the allegation sought to be established. Id. On appeal,

the appellate court will not reverse the circuit court’s ruling unless its findings are 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. This court reviews TPR orders de novo. Strickland v. Ark.

Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008).

       Section 9-27-341(c)(2)(A)(iii) allows for the termination of one parent’s parental rights

even though the other parent’s rights will remain intact, but this bifurcated approach to TPR

still must be in the children’s best interest, and it must comport with the purpose of

termination, as set out in our Juvenile Code. The relevant statutes make it plain that the

preferred permanency goal for a child in ADHS custody is to return the child to his or her

parent(s). Ark. Code Ann. § 9-27-338(c)(1) & (2) (Supp. 2013). The permanency-planning

statute, section 9-27-338(c)(3)(A), does not authorize ADHS to seek TPR where the child

is being cared for by a relative and TPR is not in the child’s best interest. A similar provision

is found in section 9-27-359(b)(1) (Supp. 2013) regarding review hearings.

                                       Statutory Grounds

       In his appeal, appellant does not specifically challenge the circuit court’s determination

that statutory grounds existed under section 9-27-341(b)(3)(B) for TPR. Nevertheless, he


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urges that TPR cannot be granted unless such a decision is also in the children’s best interest.

Ark. Code Ann. § 9-27-341(b)(3)(A).

                                          Best Interest

       Appellant challenges whether the applicable statutes permit a court to terminate the

rights of one parent but not the other when the plan for the children is for them to remain

in the other parent’s custody, and whether such TPR is in the children’s best interest. The

public interest behind TPR is to protect children who have been abused or neglected and

removed from their parents’ custody, because such an impermanent and indeterminate status

works against the children’s welfare and best interest. See Hathcock v. Ark. Dep’t of Human

Servs., 347 Ark. 819, 69 S.W.3d 6 (2002). Appellant maintains that his children’s fate was

not indeterminate because the goal was for them to be returned to Ms. Weston’s custody

where they had been at the time of their removal. Because permanency would not be

achieved through adoption, appellant argues that it was not necessary to clear the way to

permanency by terminating his parental rights. Further, he claims that it was not in their best

interest because he posed no credible threat of harm to them.

       Appellant notes this court’s reflections on potential negative financial implications that

termination might have if one parent’s rights are terminated, but not the other. In Hall v.

Arkansas Department of Human Services, 101 Ark. App. 417, 278 S.W.3d 609 (2008), this court

recognized that such an action places the terminated parent in the position of a stepparent,

if the parents are married, and would otherwise terminate that parent’s obligation to his

children for such things as child support. Id. Although this court affirmed the termination


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of the father’s parental rights in Hall, we held that the appellant’s argument was based solely

upon the “preference prong” of section 9-27-338(c)—the permanency-planning

statute—and that he put forward no best-interest analysis. Id.

       Appellant cites Caldwell v. Arkansas Department of Human Services, 2010 Ark. App. 102,

in which this court addressed a similar factual situation and found that TPR was clearly

erroneous because the permanency plan for the child was to remain in her mother’s custody.

The Caldwell court merely concluded that the circuit court’s best-interest finding was clearly

erroneous; therefore, Caldwell is distinguishable from this case. In Caldwell, there was no

evidence that the father physically abused or harmed any child. But appellant’s actions were

vastly different:   (1) appellant caused his children K.C. and Z.C.’s fourteen-year-old

half-sister—D.B.—to be hospitalized for alcohol poisoning; (2) appellant sexually fondled

D.B.; and (3) according to expert testimony, there is a likelihood that K.C. and Z.C. might

suffer the same or similar fate. See also Hayes v. Ark. Dep’t of Human Servs., 2011 Ark. App.

21.

       We find no error in the circuit court’s findings. The Juvenile Code requires that a

best-interest finding be based upon a consideration of two factors under section

9-27-341(b)(3)(A)—including the potential harm caused by continuing contact with the

parent, parents, or putative parent or parents. It is the overall evidence, rather than proof of

each factor, that must demonstrate that TPR is in the child’s best interest. McFarland v. Ark.

Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). The potential-harm




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evidence, moreover, must be viewed in a forward-looking manner and considered in broad

terms. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722.

       The record indicates that evidence of potential harm was presented to the circuit

court. On March 16, 2014, ADHS responded to the state police’s Crimes Against Children

Division (CACD) safety-assessment request. This assessment followed two allegations made

about appellant and concerning fourteen-year-old D.B. First, appellant had given D.B.

alcohol, leading to her hospitalization for alcohol poisoning. Second, appellant “admitted

to fondling D.B. on ‘her private parts.’” Ms. Weston agreed that she would not allow

appellant to have contact with K.C. and Z.C., but the next month, CACD contacted

ADHS, expressing concern that Ms. Weston was not following the protection plan and by

allowing appellant contact with K.C. and Z.C. D.B. confirmed that appellant had been

“staying [in the same home with Ms. Weston and her children] because he [had] nowhere

else to live.” So ADHS assumed immediate emergency custody of D.B., K.C., and Z.C.

       Two months later, the circuit court determined that D.B., K.C., and Z.C. were

dependent-neglected based in part on findings that appellant had sexually abused D.B. and

that appellant had “permitted [D.B.] to consume alcohol and [D.B.] suffered from blood

alcohol poisoning with a B.A.C. level of .29, which resulted in [D.B.] being hospitalized and

created a life-threatening situation.” This evidence led the circuit court to find that the

children had been subjected to aggravated circumstances.




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        The evidence at the TPR hearing revealed additional concerns regarding potential

harm.    Mr. Todd—a fourteen-year licensed counselor and recognized mental-health

expert—testified in his role as D.B., K.C., and Z.C.’s counselor. He testified that

        the cycle of being abusive to a child does not cease . . . . That that would make a
        very strong likelihood that any child in his home, that that behavior could be repeated
        . . . . If a parent has sexually abused and been inappropriate with a child that-that like
        strong-strong likelihood of repeating that behavior is there.

Mr. Todd explained that appellant’s abuse would repeat—that K.C. and Z.C. would observe

and then abuse their children:

        [A]ny child in a home where there’s violence and drugs and sexual perpetration . . .
        they could fall victim of the violence in some way or that they would observe that
        behavior and repeat that behavior when they become an adult and if they choose to
        have a family. So I think modeling repetitive patterns of domestic violence, drug
        abuse, and . . . sexual perpetration it’s highly repetitive as far as a cycle so the fact that
        they could possibly be sexually harmed, physically harmed or repeat that cycle as an
        adult is a high likelihood.

        This court has held that past behavior is correctly viewed as a predictor of potential

harm. See Dowdy, supra. The evidence before us indicates that appellant’s sexual and physical

abuse raised concerns with the examiner, therapist, case worker, and ultimately the circuit

court about his ability to satisfy K.C.’s and Z.C.’s moral, physical, and intellectual

developmental needs. The admitted evidence thus indicates that the circuit court’s finding

that continued contact with appellant would cause K.C. and Z.C. to suffer potential harm

does not leave us with a definite and firm conviction that a mistake was made. This is

particularly true given that, since a child’s best interest is at issue, the circuit court’s findings

are given special deference. Trout v. Ark. Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d

486 (2004). We hold that the potential-harm finding therefore was not clearly erroneous.

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       Appellant’s physical harm to D.B. was significant enough that she was hospitalized.

The circuit court furthermore found that appellant had subjected his children’s half-sibling

to aggravated circumstances. Appellant does not contest this aggravated-circumstances

finding; accordingly, the question of whether it was clearly erroneous has for appeal purposes

been waived. See Wright v. Ark. Dep’t of Human Servs., 2014 Ark. App. 676, 449 S.W.3d

721.

       Appellant’s remaining argument challenges the sufficiency of the circuit court’s

best-interest finding—specifically that the circuit court should have afforded greater weight

to Mr. Lowder’s testimony. It is undisputed that Mr. Lowder had been appellant’s therapist

and was deemed a mental-health expert, but by the time of the TPR hearing, Mr. Lowder

was no longer appellant’s therapist. Mr. Todd was also deemed, without objection, to be a

mental-health expert and had provided counseling to all the children involved. The circuit

court weighing the evidence differently than appellant wanted it weighed is not reversible

error. See Posey v. Ark. Dep’t of Health & Human Servs., 370 Ark. 500, 262 S.W.3d 159

(2007). To reverse on this basis would require this court to act as a super fact-finder or

second-guess the circuit court’s credibility determination, which is not our function. See

Lynch v. Ark. Dep’t of Human Servs., 2012 Ark. App. 149.

       Affirmed.

       GLOVER and HOOFMAN, JJ., agree.

       Leah Lanford, Arkansas Public Defender Commission, for appellant.

       Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

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




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