                                    Cite as 2017 Ark. App. 368


                     ARKANSAS COURT OF APPEALS
                                           DIVISION III

                                           No.   CV-17-74

BRITNEY SMITH                                          OPINION DELIVERED: JUNE 7, 2017
                                   APPELLANT
                                                       APPEAL FROM THE MADISON
                                                       COUNTY CIRCUIT COURT
V.                                                     [NO. 44JV-15-43-3]

                                HONORABLE JOHN C. THREET,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILD
                      APPELLEES AFFIRMED




                                 ROBERT J. GLADWIN, Judge

        Appellant Britney Smith appeals the October 19, 2016 order of the Madison County

 Circuit Court terminating her parental rights to her minor child, A.S. She argues that the

 circuit court erred in granting the termination-of-parental-rights (TPR) petition because

 appellee Arkansas Department of Human Services (ADHS) failed to present sufficient

 evidence that TPR was in the child’s best interest, specifically challenging the potential-

 harm element of the best-interest analysis. We affirm.

                                                 I. Facts

        On August 17, 2015, ADHS went to the home of appellant and her husband,

 Fletcher Smith, 1 to investigate allegations of drug use, environmental neglect, and striking

 a child with a closed fist. When arriving at the home, ADHS encountered the parents and



        1
            Smith did not appeal and is not a party to this action.
                                Cite as 2017 Ark. App. 368

A.S. The ADHS worker observed that A.S. did not have any bruises but that the home was

dirty. The parents were also unable to produce samples for the ADHS worker to perform

drug tests. While the ADHS worker was at the home, the maternal grandmother and great-

grandmother arrived and removed A.S. from the home over the objection of the ADHS

worker. The ADHS worker, with the assistance of the police, was able to retrieve A.S.

ADHS exercised a seventy-two-hour hold on A.S. based on the family’s prior history with

ADHS, the family’s refusal to comply with the investigation, and the family members’

absconding with A.S.

       On August 20, 2015, ADHS filed a petition for emergency custody and dependency-

neglect, alleging detailed concerns of drug use, environmental neglect, and that A.S. had

been hit with a closed fist. Also on August 20, 2015, the circuit court entered an ex parte

order for emergency custody granting ADHS custody of A.S. A probable-cause hearing was

held on August 25, 2015, after which the circuit court entered an order finding that probable

cause existed, based on (1) the home being unsafe, (2) the parents refusing drug screens, (3)

a family member fleeing with A.S., and (4) the extensive history between ADHS and the

family, such that continued custody of A.S. should remain with ADHS. The circuit court

entered a supervised visitation schedule and ordered certain services. Specifically, appellant

was ordered to cooperate with ADHS; call the caseworker once a week; attend the case-

plan staffing; keep ADHS informed of her contact information; refrain from using illegal

drugs; submit to random weekly drug screens; maintain stable, clean, and safe housing;

maintain stable, adequate employment; demonstrate an ability to keep the juvenile safe;

submit to a hair-follicle drug screen; and follow the case plan and court orders.


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       A court report was submitted on September 18, 2015, that detailed that A.S. was

healthy and “on track for his age.” Following the adjudication hearing held on September

21, 2015, the circuit court entered an order adjudicating A.S. dependent-neglected based

on the finding that A.S. was at a risk of harm due to neglect and parental unfitness and

finding that the previous allegations in the petition were true and correct—the poor

environmental conditions of the home, the failure of the parents to submit to a drug screen

during the investigation, and the great-grandmother running off with A.S. The circuit court

noted that since A.S. had been removed, appellant had failed a drug screen for

methamphetamine and amphetamine and that they had moved and reportedly were staying

with friends in Fayetteville. Appellant had attended only two of four scheduled visits and

had not submitted to weekly drug screens. The goal of the case was set for reunification,

and A.S. was placed in the home of relatives at the time of the hearing. The circuit court

continued its prior orders, adding that appellant was to participate in individual counseling

and complete twenty hours of parenting classes.

       The circuit court found that appellant had complied with the prior orders from the

probable-cause hearing in that she was working, that she had attended the case-plan staffing,

and that she had scheduled an appointment with Ozark Guidance Center so that she could

resume her mental-health medications. ADHS had made referrals for individual counseling

and hair-follicle exams but had not yet received approval for those services. The circuit

court allowed visitation for the extended family.

       A Court Appointed Special Advocate (CASA) report was submitted on January 14,

2016, that indicated that A.S. “enjoys the visits with his mother, smiles when he sees her


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and becomes fussy if she leaves the room.” CASA detailed that appellant’s family had helped

her obtain an apartment that was clean and furnished. A.S. had remained with appellant’s

relatives, even though the placement was planned to be only temporary. Appellant’s family

was committed to help support her in a manner that was best for appellant and A.S. ADHS

submitted a court report on January 20, 2016, that recommended continued foster care,

work with the family, and a review.

       On January 25, 2016, a review hearing was held. The circuit court found that the

parents had not made sufficient progress to have A.S. returned to their custody. Appellant

had not complied with all court orders or case-planned services. Although she was employed

and was participating in therapy at Ozark Guidance Center, the circuit court found that her

progress had been only minimal. The prior orders continued in the review order filed on

the same date.

       Another CASA report was filed on May 4, 2016, and ADHS filed a court report on

May 11, 2016, and a case plan on May 12, 2016. The permanency-planning hearing was

held on May 16, 2016, at which time the circuit court changed the goal of the case to

adoption. The circuit court found that appellant had not complied with most of the court

orders and case-planned services and had made only minimal progress. Approximately three

months prior to this hearing, A.S. had been moved from the provisional foster home of

relatives and placed in a foster home with nonrelatives.

       On May 21, 2016, ADHS filed a TPR petition. In the petition, ADHS pled as

grounds that TPR was warranted pursuant to Arkansas Code Annotated section 9-27-




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41(b)(3)(B)(i)(a) (Repl. 2015), the failure-to-remedy ground, and the subsequent-factors

ground under Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). 2

       A hearing was held on the TPR petition on September 19, 2016. Denise Gibson,

the ADHS county supervisor, was the first witness to testify. The caseworker was Toni

Johnson, but Gibson prepared for the hearing by reviewing the file. Gibson testified that

A.S. is adoptable and that his current foster family is interested in adopting him. Gibson

explained that she did not feel that A.S. could safely return to appellant because appellant

remained in an inpatient facility for alcohol and drug treatment. Gibson also testified that

appellant did not demonstrate sufficient stability with her employment or housing just prior

to entering inpatient treatment.

       Gibson explained that appellant visited with A.S. and that her visits went well.

Gibson also stated that A.S. knows that appellant is his mother and is connected to her. She

acknowledged that appellant had maintained weekly contact with ADHS through the

program assistant. Gibson noted that appellant had some positive drug screens during the

case. Gibson also acknowledged that ADHS had not made any contact with appellant’s

treatment program to ascertain her progress.

       The foster mother also testified. She agreed that A.S. knows that appellant is his

mother and that A.S. would grieve a loss of the relationship with appellant.




       2
        ADHS also pled the failure-to-maintain-meaningful-contact ground under section
9-27-341(b)(3)(B)(ii)(a), but that was pled regarding the father and not appellant. As such,
that ground did not apply to appellant. See Dornan v. Ark. Dep’t of Human Servs., 2014 Ark.
App. 355 (finding Dornan did not have notice that she would have to defend against grounds
pled against the father and that those grounds could not be used to terminate her rights).

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       Appellant confirmed during her testimony that she was enrolled in treatment at

Decision Point and was in week five of a four- to-six-week program. If the goal was

returned to reunification, Decision Point would assist appellant in reunifying with A.S.

Appellant explained that her plan on release from her treatment program was to either go

to Sober Living or live with her mother or grandmother, who were both permitted by the

circuit court to have visits with A.S. during the case. Sober Living is a program that provides

transitional housing that would assist appellant in transitioning back into the community and

help her find employment. That program would permit A.S. to be placed with appellant

while she was a participant in the program. At the time of the hearing, appellant had attained

thirteen weeks and four days of sobriety.

       Appellant also testified that she was participating in counseling. This participation

began before her admission into Decision Point, and she had attended several sessions.

Additionally, appellant noted that she had separated from her husband and had spoken with

legal aid regarding assistance in obtaining a divorce. She had completed the required twenty-

five hours of parenting classes. While appellant acknowledged that she did not have a job at

the time of the TPR hearing, she stated that she previously did not have difficulty

maintaining employment, having held a prior job for two years.

       Appellant testified that she and A.S. are bonded, and she described how when A.S.

sees her, he runs, jumps into her arms, and gives her a big hug and a kiss. She acknowledged

that she had “messed up a lot” since A.S. had entered foster care but stated that she was

genuinely trying. Appellant claimed to have made progress in her counseling to help her

realize that A.S.’s father was an impediment to reunification. Prior to this realization,


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appellant believed she should simultaneously work on her issues and her relationship with

her husband so that A.S. could have an intact family if he returned. She acknowledged

benefiting from counseling services and realized that leaving her husband was what she

needed so that she could focus solely on A.S. Appellant pointed out that after leaving her

husband, she attained her sobriety. She asserted her belief that if she were given additional

time and the goal changed back to reunification, she could have A.S. returned to her custody

at the Sober Living program within one to two weeks.

       At the conclusion of the TPR hearing, appellant argued that she should be given

additional time to demonstrate that her progress was sustainable and to take advantage of

the programs offered through the drug-treatment facility that focuses on reunifying addicts

with their children. Appellant pointed out that her progress was not all “eleventh hour

progress,” as indicated in the prior orders as evidence that she was always participating and

making some progress even if it was only minimal.

       Ultimately, the circuit court granted ADHS’s TPR petition and terminated

appellant’s parental rights pursuant to the order filed on October 19, 2016. Appellant filed

a timely notice of appeal on November 16, 2016.

                          II. Standard of Review and Applicable Law

       Our court recently reiterated the standard of review in TPR cases as follows:

               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. In order to terminate parental
       rights, a circuit court must find by clear and convincing evidence that termination is
       in the best interest of the juvenile. Additionally, the circuit court must also find by
       clear and convincing evidence that one or more statutory grounds for termination
       exists.


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               Termination-of-parental-rights cases are reviewed de novo. 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. The appellate inquiry is whether the circuit
       court’s finding that the disputed fact was proved by clear and convincing evidence is
       clearly erroneous. 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. In resolving the clearly erroneous question,
       we give due regard to the opportunity of the circuit court to judge the credibility of
       witnesses.

Jones v. Ark. Dep’t of Human Servs., 2017 Ark. App. 125, at 6, __ S.W.3d __, __ (internal

citations omitted).

       TPR requires clear and convincing evidence that two elements exist. Ark. Code

Ann. § 9-27-341(b)(3). First, TPR must be in the child’s best interest. Id. Second, at least

one of nine statutory grounds must exist. Id. Here the circuit court found that these

conditions existed, and we hold that a review of the record does not leave a definite and

firm conviction that these findings were a mistake.

       The juvenile code requires that a best-interest finding be based on a consideration of

at least two factors: (1) the likelihood that, if parental rights are terminated, the children

will be adopted; and (2) the potential harm caused by “continuing contact with the parent,

parents, or putative parent or parents.” Ark. Code Ann. § 9-27-341(b)(3)(A). But it is the

overall evidence—not 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).

       Under the juvenile code, TPR requires that the circuit court consider the likelihood

of adoption. Ark. Code Ann. § 9-27-341(b)(3)(A)(i). This factor, however, does not require

that adoptability be proved by clear and convincing evidence. Duckery v. Ark. Dep’t of

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Human Servs., 2016 Ark. App. 358. There instead must be evidence that addresses the

likelihood of adoption. Thompson v. Ark. Dep’t of Human Servs., 2012 Ark. App. 124.

       The juvenile code also requires that, to terminate parental rights, the circuit court

must consider potential harm. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii). This factor,

however, does not require that a specific potential harm be proved by clear and convincing

evidence. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. The

potential-harm evidence, moreover, 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.

       Although the juvenile code provides nine different grounds that warrant TPR, see

Ark. Code Ann. § 9-27-341(b)(3)(B), in order to terminate parental rights, only one ground

is needed. Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007).

And on de novo review, the court can affirm the circuit court’s TPR decision on any

ground that was alleged in the petition and proved. Fenstermacher v. Ark. Dep’t of Human

Servs., 2013 Ark. App. 88, 426 S.W.3d 483.

                                       III. Discussion

       Appellant does not challenge the statutory grounds for TPR relied on by the circuit

court. She instead claims that, even if the circuit court correctly determined that statutory

grounds for TPR existed under section 9-27-341(b)(3)(B), her rights cannot be terminated

when there is not clear and convincing evidence that TPR was in A.S.’s best interest. See




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Ark. Code Ann. § 9-27-341(b)(3)(A); Lively v. Ark. Dep’t of Human Servs., 2015 Ark. App.

131, 456 S.W.3d 383. 3

       Appellant argues that her progress was sufficient to prove that she did not pose

potential danger to A.S. to the extent that would warrant TPR. Appellant maintains that

the major impediment to her reunification with A.S. was her drug addiction and relationship

with her husband, who completely failed to comply with the case plan or court orders. She

notes that throughout the case, she attempted to comply and finally achieved major progress

by the time the TPR hearing was held. By then, appellant had more than thirteen weeks of

sobriety and had left her husband. At the time of the TPR hearing, A.S. had been in

“stranger” foster care for only seven months because, for approximately the first six months

of the case, A.S. was living with relatives. Further, appellant reiterates that A.S. could have

been placed with her in her treatment facility in as little as one to two weeks from the TPR

hearing through the transitional program offered through her drug-treatment facility. The

program would provide her housing and assist her in finding housing beyond the treatment

facility. The program also would assist her in finding employment and would provide family

counseling for appellant and A.S.

       While appellant stops short of arguing that courts should ignore the statutory time

frames imposed in these cases, acknowledging that children deserve permanency, she points

out that the issue is that the need for permanency should not obliterate the ability of a family

to reunify when a parent has never physically abused or harmed her child, has made multiple



       3
        Appellant does not challenge the adoptability finding, and that finding must be
affirmed. Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006).

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attempts to comply with the court’s orders, and was finally able to attain about three and a

half months of sobriety. Here, even conducting the potential harm analysis in broad terms,

appellant claims that the evidence was not sufficient to show that she continued to pose a

risk of harm to A.S. if he had continued contact with her. See Bearden v. Ark. Dep’t of Human

Servs., 344 Ark. 317,42 S.W.3d 397 (2001).

       The intent of the TPR statute is to provide permanency in a minor child’s life under

circumstances in which returning the child to the family home is contrary to the child’s

health, safety, or welfare, and when the evidence demonstrates that the return cannot be

accomplished in a reasonable period of time as viewed from the child’s perspective. Garrett

v. Ark. Dep’t of Human Servs., 2016 Ark. App. 401, 499 S.W.3d 659; Ark. Code Ann. § 9-

27-341(a)(3). The child’s need for permanency and stability may override the parent’s

request for additional time to improve the parent’s circumstances. Id. The issue is whether

the parent has become a stable, safe parent able to care for the child. Id. The court may

consider the parent’s past behavior, and even full compliance with the case plan is not

determinative. Id.

       Appellant acknowledges that the circuit court could not have returned A.S. to her

on the day of the TPR hearing. The testimony and evidence revealed that at the time of

the TPR hearing, A.S. was less than three years old and had been in ADHS custody for

thirteen months. Although appellant had a long history with ADHS prior to A.S.’s removal,

she had entered a rehabilitation program only one month prior to the TPR hearing. ADHS

had provided services to appellant throughout her pregnancy with A.S. and following his

birth. ADHS county supervisor Gibson testified, “[Appellant] is currently in an inpatient


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treatment facility for alcohol and drug issues. She also has some mental health issues that

need to be addressed. She was not stable in employment and did not have a job just prior

to going inpatient. She was not stable during the case with housing. She has not completed

parenting or complied with counseling. She went in rehab the first part of August 2016.”

       Although appellant asked for more time to prove her sobriety and stability, this

“wait-and-see” situation is the type of instability from which the TPR statute intends to

protect children. Basham v. Ark. Dep’t of Human Servs., 2016 Ark. App. 232, at 4–5, 490

S.W.3d 330, 333. Living in a state of prolonged uncertainty is not in the child’s best interest.

See Coleman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 851, 379 S.W.3d 778 (referencing

Bearden, supra). Moreover, most of appellant’s testimony amounts to merely hopeful

speculation about future employment, housing, and maintained sobriety. Evidence of

parental improvement as TPR becomes imminent will not outweigh other evidence

demonstrating a failure to remedy the situation that caused the child’s initial removal, see

Duncan v. Ark. Dep’t of Human Servs., 2017 Ark. App. 252, __ S.W.3d __.

       The credibility of any witness’s testimony is to be assessed by the trier of fact, and

the trier of fact may believe all, part, or none of it. See Henson v. Ark. Dep’t of Human Servs.,

2014 Ark. App. 225, 434 S.W.3d 371. The testimony and evidence support the circuit

court’s conclusion that leaving A.S. in limbo for several more months, waiting to see if

appellant’s speculations might be realized, posed a potential harm to A.S. Because the

findings of the circuit court are not clearly erroneous, we affirm.

       Affirmed.

       ABRAMSON and GLOVER, JJ., agree.


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Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.

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




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