                                  Cite as 2016 Ark. App. 316

                 ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CV-16-154


TIMMY SCRIVNER                                     Opinion Delivered   June 8, 2016
                                APPELLANT
                                                   APPEAL FROM THE SEBASTIAN
V.                                                 COUNTY CIRCUIT COURT, FORT
                                                   SMITH DISTRICT [NO. JV-2014-295]

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



                            PHILLIP T. WHITEAKER, Judge

       Appellant Timmy Scrivner appeals an order of the Sebastian County Circuit Court

terminating his parental rights to his three children, B.S. (08/24/08), A.S. (12/23/10), and

K.S. (10/05/11). He raises two arguments on appeal: a challenge to the sufficiency of the

evidence supporting the circuit court’s best-interest determination and a due-process challenge

based on his absence at the permanency-planning hearing. We affirm.

       We begin our analysis with a recognition that termination of parental rights is an

extreme remedy and in derogation of the natural rights of the parents. Crawford v. Ark. Dep’t

of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). We review termination-of-parental-

rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286

(2001). In termination cases, the circuit court must find by clear and convincing evidence that

a parent is unfit and that termination is in the best interest of the child. J.T. v. Ark. Dep’t of

Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). This normally involves a two-step
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analysis: (1) that the Department of Human Services (DHS) prove one or more of the

statutory grounds for termination and (2) that the termination of parental rights is in the

child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A) & (B) (Repl. 2015). Because

Scrivner does not challenge the statutory grounds, we will address only the best-interest

portion of the analysis.

                                       I. Best Interest of the Child

       Scrivner first argues that there was insufficient evidence presented at the hearing to

support the circuit court’s best-interest determination. We now turn our attention to the

evidence before the circuit court.

       Scrivner is the father of B.S., A.S., and K.S.1 Laura Church is the mother of all three

children.2 In April 2014, DHS removed A.S. and K.S. from the custody of Church. The

children were removed by DHS for the following reasons: A.S. had burned himself on the

forehead with a torch while in the care of Church; Church lived in a “well known drug

house”; and Church admitted smoking methamphetamine. B.S. was not removed by DHS

because he was not living with Church at the time and was being cared for by the maternal

grandmother. At the time of removal, Scrivner was incarcerated.

       DHS filed a petition for dependency-neglect on A.S. and K.S. and an amended

petition for dependency-neglect on B.S. The court adjudicated all three children dependent-


       1
          During the course of the dependency-neglect proceeding, Scrivner was adjudicated
the father of all three children.
       2
          Church’s parental rights have also been terminated, but that termination is not
subject to this appeal.

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neglected, granted custody of A.S. and K.S. to DHS, and granted less-than-custody

protections for B.S., maintaining the status quo placement of B.S. with the maternal

grandmother.

       Throughout most of the proceeding, Scrivner remained incarcerated. He was ordered

to obtain and maintain stable and appropriate housing, income, and transportation; complete

drug-and-alcohol assessments and all recommended treatment; complete a psychological

evaluation and all recommended treatment; complete parenting classes; submit to random

drug screens and hair-follicle testing; and visit the children regularly. His compliance with

these directives was poor. In a November 2014 review order, the court found that Scrivner

had made no progress on the case plan, had not provided any proof of completion of any

services obtained in prison, had not completed any parenting classes, and had participated in

only one drug screen. The court further found that Scrivner had not visited with the

juveniles prior to their placement with the grandmother.

       At the permanency-planning hearing,3 the court found that Scrivner was not diligently

working toward reunification and had not made significant or measurable progress toward

achieving the goals established in the case plan, remedying the conditions that caused removal,

or remedying the conditions that prohibited the placement of the children in his home.

Specifically, the court found that Scrivner had not made any progress on the case plan; had

not provided proof of completion of any services obtained in prison; had not provided any

evidence that he had maintained stable and appropriate housing, income, or transportation;

       3
         Scrivner was not present at the permanency-planning hearing. His absence will be
more fully developed when we address his second argument on appeal.

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had not completed parenting classes; had not completed a psychological evaluation or any

recommended treatment; had not completed a drug-and-alcohol assessment or any

recommended treatment; and had visited the children only twice during the review period.

       DHS subsequently filed a petition to terminate, and after the termination hearing, the

circuit court granted the petition. In so doing, the circuit court found that the children would

be subject to a great risk of potential harm if returned to Scrivner’s custody and that there was

little likelihood that continued services would result in reunification. In support of its

conclusion, the court noted Scrivner’s continuing and untreated substance abuse, as well as

his domestic-violence and criminal issues.

       Scrivner argues that the termination of his parental rights was not necessary or essential

to protect the best interest of the children. He notes that the children were placed with their

maternal grandmother. Because of this placement, he argues that the children were not

languishing in the foster-care system; that the relative placement was a less-restrictive

alternative to termination, which negated the compelling need for permanency by

termination; and that termination would not provide any greater stability for the children.

Scrivner also argues that the termination of parental rights was contrary to the best interest of

the children by cutting the positive family ties between the children and his family and by

terminating his obligation to provide financial support, which is detrimental to the children.

Lastly, he contends that there was no proof that he posed a credible threat of harm to the

children.




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        Scrivner asserts that this case is similar to Cranford v. Arkansas Department of Human

Services, 2011 Ark. App. 211, 378 S.W.3d 851, 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. In Caldwell and Lively, the child was in the permanent care of

the mother and, in Cranford, the children were in the custody of the grandparents. This court

reversed those termination decisions, finding that termination would not necessarily result in

greater permanency or stability for the children in those particular circumstances. However,

in Hayes v. Arkansas Department of Human Services, 2011 Ark. App. 21, we affirmed the

termination of parental rights based on the risk of harm to the children should they ever be

returned to the father, even absent the need for permanency. Scrivner argues that Hayes is

inapplicable to the facts of this case because there is no evidence that he had subjected the

children to violence and abuse sufficient to warrant an irrevocable break of the parental bonds.

       Scrivner’s arguments are misplaced. First, the children are still in the custody of DHS.

The maternal grandmother is merely a placement option for DHS, and given that the

maternal grandmother’s rights are derivative of the mother’s rights, which have been

terminated, this placement option may change. Thus, it is not a given that this is a permanent

or stable option.

       Second, this case more closely resembles Brumley v. Arkansas Department of Human

Services, 2015 Ark. 356. In that case, our supreme court held that termination was appropriate

despite the child being placed with an aunt because Brumley, who was incarcerated, lacked

essential components of the case plan, including stable housing and employment. Here,


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Scrivner was incarcerated off and on during the pendency of the action, is currently

incarcerated, and still has charges pending. He denied having a substance-abuse problem,

despite admitting having smoked marijuana to his probation officer and having received a

DWI after a hit-and-run accident. He stated that he was attending a twelve-step program,

but when questioned, could not elaborate on the steps. He contends that he has employment

and housing upon release, but because of his repeated incarcerations, there is no proof that he

can maintain either. Finally, while he argues that termination of his parental rights would cut

off his financial support of the children, the evidence at the hearing was that he was over $800

in arrears and had not made a child-support payment since January 31, 2015.

       When determining the best interest of the juvenile, the circuit court takes 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-

27-341(b)(3)(A)(i) & (ii).

       Arkansas Code Annotated section 9-27-341(b)(3) requires a circuit court’s order

terminating parental rights to be based on clear and convincing evidence. Clear and

convincing evidence is that degree of proof that will produce in the fact-finder a firm

conviction as to the allegation sought to be established. Baker v. Ark. Dep’t of Human Servs.,

340 Ark. 42, 8 S.W.3d 499 (2000). When the burden of proving a disputed fact is by clear

and convincing evidence, the question that must be answered on appeal is whether the circuit

court’s finding was clearly erroneous. Payne v. Ark. Dep’t of Human Servs., 2013 Ark. 284. A


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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. See id. This court gives a high deference to the circuit court because that court is in a

far superior position to observe the parties before it and to judge the credibility of the

witnesses. See id.

       Based on these facts, and given our high deference to the circuit court’s determination

of the evidence and the credibility of the witnesses, the circuit court’s finding of best interest

was not clearly erroneous.

                                               II. Due Process

       Scrivner next argues that his due-process rights were violated when he was prevented

from attending the permanency-planning hearing where the goal of the case was changed

from reunification to adoption and termination. This argument arises from the permanency-

planning hearing held in April 2015. Scrivner’s notice of appeal, however, specifies only an

appeal from the termination order; thus, any error committed during the permanency-

planning hearing is not preserved for our review. In Velazquez v. Arkansas Department of

Human Services, 2011 Ark. App. 168, we held that the appellant’s arguments challenging

termination of parental rights actually related to the earlier permanency-planning hearing and

review hearing, neither of which was before the court because the appellant’s notice of appeal

failed to designate the permanency-planning order or bring up the record pertaining to the

permanency-planning hearing. “While a termination order might bring up all intermediate

orders, appellant did not designate the permanency-planning hearing in his notice of appeal,


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effectively waiv[ing]” his arguments related to the permanency-planning order. Velazquez,

2011 Ark. App. 168, at 5. Because Scrivner failed to designate the permanency-placement

order in his notice of appeal or to bring forth a record of that hearing, his argument is not

preserved for our review.

       Affirmed.

       HARRISON and BROWN, JJ., agree.

       Tina Bowers Lee, Arkansas Public Defender Commission, Dependency-Neglect

Appellate Division, for appellant.

       Jerald A. Sharum, Office of Chief Counsel, for appellee.

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




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