                               Cite as 2015 Ark. App. 604

                ARKANSAS COURT OF APPEALS
                                     DIVISION III
                                     No. CV-15-467


PORFIRIO CONTRERAS                              Opinion Delivered   October 28, 2015
                              APPELLANT
                                                APPEAL FROM THE LOGAN
V.                                              COUNTY CIRCUIT COURT,
                                                NORTHERN DISTRICT
                                                [NO. 42PJV-13-24]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR                        HONORABLE TERRY SULLIVAN,
CHILD                                           JUDGE
                    APPELLEES
                                                AFFIRMED



                              BART F. VIRDEN, Judge

       The Logan County Circuit Court terminated appellant Porfirio Contreras’s parental

rights to his son, A.C. (DOB: 2-12-2012).1 Contreras argues that there was insufficient

evidence to support the termination. Specifically, he contends that the Arkansas Department

of Human Services (DHS) failed to satisfy its burden of proving that he was offered

appropriate family services and that he was penalized for having a pending criminal charge

without a conviction. We affirm.

                                   I. Procedural History

       In September 2013, DHS filed a petition for emergency custody and dependency-




       1
        The trial court also terminated the parental rights of Dawn Ratcliff, the child’s
mother, but she is not a party to this appeal.
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neglect of A.C. and his older brother, C.R.2 In an affidavit, a DHS case worker attested that

she had received a report that law-enforcement officers were working an automobile

accident involving Jeremy and Dawn Ratcliff, along with A.C., who was not in a car seat.

During the investigation, they learned that the couple had left their three-year-old child,

C.R., at home alone. The Ratcliffs were charged with endangering the welfare of a minor

in the first degree as to both boys. In an order entered in January 2014, the children were

adjudicated dependent-neglected by stipulation of the parties. In a review order dated

February 26, 2014, the trial court found that Contreras had visited with A.C. and had

cooperated with DHS. He was ordered to work the case plan, comply with court orders,

cooperate with DHS, and make himself available for visitation. In a review order dated

September 11, 2014, the trial court found that Contreras had made progress with respect to

the case plan but that he was not a placement option because he had pending criminal

charges. He was ordered to cooperate with DHS and to comply with court orders and the

case plan. In a permanency-planning order dated January 15, 2015, the goal of the case was

changed to termination of parental rights and adoption. In all of these court orders, the trial

court found that DHS had made reasonable efforts to provide reunification services.

       In its petition for termination of both Dawn’s and Contreras’s parental rights to A.C.,

DHS cited several grounds under Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2013), but it

is undisputed that only two of those grounds could have applied to Contreras: (vii)



       2
       Custody of C.R. was eventually awarded to the child’s biological father, Shelby
Ingram.

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(subsequent factors) and (ix) (aggravated circumstances). A hearing was held on February 4,

2015.

                                    II. Termination Hearing

        Stephanie Doherty, family service worker for DHS, testified that Contreras had visited

A.C. except when the child was sick; that Contreras did “all right” with his parenting skills;

that he had brought A.C. breakfast and toys; that they had played together; that there was

great interaction; and that there was a good bond between them.3 Doherty stated that

Contreras was employed but was paid cash “under the table.” Doherty testified that

Contreras had “bounced” from home to home and was currently living with his girlfriend

and her five-month-old baby. Doherty also stated that DHS had discovered that Contreras

was on three years’ probation for a drug charge in Yell County and that he had pending

criminal charges in Pope County for sexual abuse of a minor. There was evidence that on

June 12, 2014, a report was made to the Crimes Against Children Division of the Arkansas

State Police regarding a twenty-eight-year-old man named Eli Cono having sex twice with

a fifteen-year-old girl who became pregnant. It was later determined that Eli Cono was

Porfirio Contreras, and an investigation into the matter led to true findings for sexual abuse

and substance misuse.

        Contreras acknowledged that he had pleaded guilty to possession of

methamphetamine in March 2014 for which he had received probation. According to



        3
          Doherty referenced a case plan in her testimony, but it is not in the addendum or the
record.

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Contreras, the drug was actually Ritalin, and he was complying with the terms of his

probation. Contreras said that he was charged with fourth-degree sexual abuse and that,

although the prosecutor had offered him approximately thirty months’ probation, he chose

to go to trial—scheduled for March 2015—because he had proof that he did not know that

the girl was underage. Contreras also conceded that he had been charged with murder when

he was a juvenile. Contreras testified that he was a plumber and worked approximately

twenty to thirty hours per week. Contreras said that, because of his recent legal trouble, he

was forced to quit college and, although he had been ordered to pay the minimum amount

of child support—sixty dollars every two weeks—he was behind on payments. According

to Contreras, although he had been staying with his girlfriend off and on since July 2014, he

had only been living with her for a few weeks, and the lease was in his girlfriend’s name.

Finally, he acknowledged that it was “horrible” that A.C. had been in DHS custody for more

than half of his life. Contreras said that he hoped that it would not take too long for him to

get his situation resolved in order for A.C. to be placed with him.

       At the conclusion of the hearing, the trial court ruled that there was “just absolutely

too much chaos” in Contreras’s life and, in its order terminating his parental rights, the trial

court found that termination was in A.C.’s best interest. While the trial court did not specify

which grounds applied to Contreras, the trial court concluded that

       [t]he father loves his child and he was doing well with services and was a possible
       placement option. He has visited with the juvenile and they have a bond. However,
       the father picked up new drug charges in March 2014, and failed to advise the Court
       or DHS of his new charges. He also has a trial pending March 2015 for charges of
       sexual abuse with a minor. He has lived in two to three homes since this case has been
       open and this child needs permanency. Even if the father is found not guilty of his

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       pending charges in Pope County, he would not be a viable placement option because
       he would still have pending criminal charges for drug possession.

                         III. Standard of Review and Applicable Law

       In order to terminate parental rights, a trial court must find by clear and convincing

evidence that termination is in the best interest of the juvenile, taking 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). Additionally, the trial court must find by clear and convincing evidence that

one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B).

However, proof of only one statutory ground is sufficient to terminate parental rights. Gossett

v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205.

       The two grounds applicable to Contreras are listed in section 9-27-341(b)(3)(B) as

follows:

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

       ....

       (ix)(a) The parent is found by a court of competent jurisdiction . . . to:

       ....

       (3)(A) Have subjected any juvenile to aggravated circumstances.

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       (B) “Aggravated circumstances” means:

       (i) . . . a determination has been or is 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)(B)(vii) & (ix).

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

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

       The intent of our termination statute is to provide permanency in a 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). Furthermore, a child’s need for permanency and stability may

override a parent’s request for additional time to improve the parent’s circumstances. Fredrick

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v. Ark. Dep’t of Human Servs., 2010 Ark. App. 104, 377 S.W.3d 306.

                                            IV. Argument

        Contreras does not challenge the trial court’s best-interest determination; instead, he

argues that DHS failed to prove that it had provided reunification services to him, which he

contends is “an element” of each of the two applicable grounds. According to Contreras, the

evidence shows that “DHS abjectly failed to offer [him] any services beyond visitation and

a home study.” Contreras acknowledges that the trial court found in the review and

permanency-planning orders that DHS had made reasonable efforts to provide services, but

he contends that he did not have an opportunity to challenge those findings because the

orders were not final given that they did not contain a certificate pursuant to Ark. R. Civ.

P. 54(b).4

        In addition, Contreras contends that his legal trouble was an insufficient ground on

which to terminate his parental rights. He maintains that the drug conviction occurred about

one year prior to the termination hearing and that he had been in compliance with the terms

of his probation. With respect to the subsequent charge of sexual abuse of a minor, Contreras

asserts that it was only pending—he had not been convicted and had a defense to the charge.




        4
          Rule 6-9(a)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals
provides that certain orders may be appealed from in dependency-neglect cases, including
disposition, review, no reunification, and permanency planning orders if the court directs entry
of a final judgment as to one or more of the issues or parties based upon the express determination by
the court supported by factual findings that there is no just reason for delay of an appeal, in accordance
with Ark. R. Civ. P. 54(b). Ark. Sup. Ct. R. 6-9(a)(1)(B) (emphasis added).

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                                        V. Discussion

       The trial court found at each juncture of the proceedings that reasonable efforts had

been made by DHS to provide Contreras with reunification services. A failure to challenge

the court’s prior “meaningful-efforts” findings precludes this court from now reviewing any

adverse rulings resulting from those orders not appealed from. Jones-Lee v. Ark. Dep’t of

Human Servs., 2009 Ark. App. 160, 316 S.W.3d 261. See also Stockstill v. Ark. Dep’t of Human

Servs., 2014 Ark. App. 427, 439 S.W.3d 95 (even where this court was inclined to agree that

DHS had failed to offer appropriate services to address father’s specific issues, his failure to

challenge multiple findings that DHS had in fact provided appropriate services precluded this

court from reviewing the matter on appeal).

       Contreras argues that Henson v. Arkansas Department of Human Services, 2014 Ark. App.

225, 434 S.W.3d 371, applies. In that termination-of-parental-rights case, the appellants

challenged the trial court’s finding that they had subjected their children to aggravated

circumstances. DHS argued that the appellants were barred from raising that issue on appeal

because the trial court had first made a determination that there was little likelihood that

further services would result in successful reunification in a no-reunification-services order,

which was a final order from which the appellants did not appeal. This court rejected DHS’s

argument and held that the appellants’ challenge was not barred because the no-

reunification-services order was not final in that it did not contain a Rule 54(b) certificate

and was thus not appealable.

       Contreras interprets the holding in Henson to mean that “DHS was required to prove


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at the termination hearing a finding made within a prior order that was not appealable per

rule.” We disagree that Henson places any affirmative duty on DHS to re-prove factual

findings made by the court in prior orders. In any event, regardless of the finality of the

earlier orders, we note that Contreras had an opportunity to object to DHS’s failure to

provide services at the termination hearing, yet he failed to do so. His counsel argued, among

other things, that Contreras should be given more time and be permitted to continue to have

a relationship with his son. There was no mention of reunification services even in

connection with Contreras’s request to be granted “three more months to get his situation

in line.” Contreras raised no objection below and does not indicate what particular

reunification services DHS could have but did not offer him. He only asked that he be given

more time. Although we might have agreed that DHS did not provide adequate reunification

services, the issue is waived. See Weathers v. Ark. Dep’t of Human Servs., 2014 Ark. App. 142,

433 S.W.3d 271 (where mother failed to object during the termination hearing, any DHS

services-related issue was waived).

       The evidence was sufficient to terminate Contreras’s parental rights based on the

ground under Ark. Code Ann. § 9-27-341(b)(3)(B)(vii) in that, subsequent to the filing of

DHS’s petition and six months after A.C. had been placed in DHS custody, Contreras

pleaded guilty to possession of methamphetamine and was placed on three years’ probation.

Within a few months of being on probation, it was discovered that Contreras had sex with

a minor using an alias. He admitted committing the offense and, although he was offered

probation in a plea deal, he rejected that, choosing instead to risk receiving a prison sentence.


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These illegal activities occurred during the time that Contreras was attempting to get custody

of his son, calling into question his judgment and priorities. Also, the testimony established

that Contreras had not obtained a stable home of his own during the sixteen months that

A.C. was in DHS custody. At the time of the termination hearing, it remained uncertain

whether Contreras would be in a position to care for A.C. in the foreseeable future. From

our de novo review of the record, we cannot say that the trial court clearly erred in its

decision to terminate Contreras’s parental rights. Because DHS was required to prove only

one statutory ground, we do not address the aggravated-circumstances ground. Hamman v.

Ark. Dep’t of Human Servs., 2014 Ark. App. 295, 435 S.W.3d 495.

       Affirmed.

       GLOVER and VAUGHT, JJ., agree.

       Tabitha B. McNulty, Arkansas Public Defender Commission, for appellant.

       Mischa K. Martin, County Legal Operations, for appellee.

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




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