Cite as 2024 Ark. App. 88 ARKANSAS COURT OF APPEALS DIVISION II No. CV-23-543
Opinion Delivered February 7, 2024
BROOKE WILKERSON APPELLANT APPEAL FROM THE FRANKLIN COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 24OJV-21-30] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN HONORABLE KEN D. COKER, JR., APPELLEES JUDGE
AFFIRMED
MIKE MURPHY, Judge
Appellant Brooke Wilkerson appeals the order of the Franklin County Circuit Court
terminating her parental rights to her children, MC1 and MC2. On appeal, she argues that
the court failed to take into consideration the impact of severing the sibling relationship as
a part of its best-interest analysis, and further, there was not sufficient evidence of potential
harm if the children were returned to Wilkerson’s custody. We affirm.
MC1 and MC2 were taken into the custody of the Arkansas Department of Human
Services (DHS) on December 18, 2021, when Wilkerson was arrested and no other family
members could be contacted. The children were ages five and seven at the time of the
removal. DHS was granted ex parte emergency custody, and the court later found that
probable cause existed to continue that custody. Wilkerson later stipulated to a dependency- neglect finding based on inadequate supervision. After several months of minimal
compliance, the goal of the case was changed to adoption with a concurrent goal of
placement with a fit and willing relative. After the goal was changed, on February 23, 2023,
DHS and the attorney ad litem filed a joint petition to terminate Wilkerson’s parental rights.
A termination hearing was held on April 26, 2023. At that hearing, the DHS
caseworker, Cheryl Warden, testified that she had worked on this case since it opened. She
explained that the children were placed in separate homes because one of them required a
therapeutic placement. Both children are in counseling and doing well in school. Warden
said Wilkerson required redirection on Zoom visits, and they had to do Zoom visits because
Wilkerson’s behavior had previously required that they call the police. Wilkerson was very
aggressive, and when DHS asked her to take an alcohol swab and drug screen, Wilkerson
“chewed it up for a little bit and then spit it on the floor.” Additionally, Wilkerson refused
to take several drug tests, produced some tests that were adulterated, and produced other
tests with “no temp.”
Warden testified that Wilkerson was positive for meth in October 2022 and that
Wilkerson “tried to sabotage every time” DHS made an appointment for her to have
treatment. Wilkerson was offered drug treatment, counseling, parenting classes,
transportation, and visits. Wilkerson would not take a drug test the morning of the
termination hearing. Warden said that she did not think there were any services DHS could
offer that have not already been offered or that would be beneficial to Wilkerson. Wilkerson
never advanced to unsupervised visits with her children. DHS would be concerned if the
2 children were returned to Wilkerson’s custody due to her lack of suitable transportation,
lack of a suitable home, unaddressed drug and alcohol problems, and mental-health
concerns.
When asked about the children’s adoptability, Warden testified that while the
children have some issues, she did not think the issues would prevent them from being
adopted; she thinks the children are adoptable. Two families were interested in adopting the
children.
The court terminated Wilkerson’s parental rights in an order entered May 17, 2023.
On appeal, Wilkerson argues that the circuit court erred in making its best-interest finding
when it failed to consider the effect of the termination on the sibling relationship,
considering that the children were in separate placements. She further argues that there was
insufficient evidence of potential harm if the children were returned to her.
We review termination-of-parental-rights cases de novo. Roland v. Ark. Dep’t of Hum.
Servs., 2018 Ark. App. 333, 552 S.W.3d 443. At least one statutory ground must exist, in
addition to a finding that it is in the child’s best interest to terminate parental rights; these
must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(A),(B)
(Supp. 2023). In making a best-interest determination, the circuit court is required to
consider two factors: (1) the likelihood that the child will be adopted and (2) the potential
of harm to the child if custody is returned to a parent. Ware v. Ark. Dep’t of Hum. Servs., 2016
Ark. App. 480, at 6–7, 503 S.W.3d 874, 878. The potential harm to the child is a factor to
be considered, but a specific potential harm does not have to be identified or proved by clear
3 and convincing evidence. Pine v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 781, at 11, 379
S.W.3d 703, 709. The potential-harm analysis is to be conducted in broad terms. Id. It is the
“best interest” finding that must be supported by clear and convincing evidence. Singleton v.
Ark. Dep’t of Hum. Servs., 2015 Ark. App. 455, at 5, 468 S.W.3d 809, 812.
We will not reverse a termination order unless the circuit court’s findings are clearly
erroneous. Fisher v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 39, at 4, 569 S.W.3d 886, 888.
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. Credibility determinations are left to the fact-finder. Kerr v. Ark. Dep’t of Hum.
Servs., 2016 Ark. App. 271, at 6, 493 S.W.3d 342, 346.
On appeal, Wilkerson does not challenge the statutory grounds and instead limits
her argument to the best-interest determination. We will address her points out of order.
To the extent that Wilkerson challenges that her children are not adoptable, the
caseworker testified that they are, even given their specific issues. Two families were
interested in them. A caseworker’s testimony that a child is adoptable is sufficient to support
an adoptability finding. Cole v. Ark. Dep’t of Hum. Servs., 2018 Ark. App 121, 543 S.W.3d
540.
Regarding potential harm, Wilkerson asserts that there was insufficient evidence that
the children would be at risk of harm if returned to her custody. Wilkerson explains that
because she “was never allowed unsupervised visits with the children,” it cannot be known
if her ability to adequately supervise the children was remedied. The evidence for potential
4 harm is viewed in a forward-looking manner and considered in broad terms, but a circuit
court is not required to find that actual harm will result or to affirmatively identify a potential
harm. Bentley v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 374, at 14, 554 S.W.3d 285, 294.
Here, the court specifically found that the children
would be subjected to potential harm because the parent lacks stable and appropriate housing, lacks stable and sufficient income or employment, has not addressed her substance abuse problem, has not addressed her mental health issues, and has acted erratic during visits to the point that the Court has suspended her in-person visitation.
These are all findings supported by the testimony in this record, and this court has
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Cite as 2024 Ark. App. 88 ARKANSAS COURT OF APPEALS DIVISION II No. CV-23-543
Opinion Delivered February 7, 2024
BROOKE WILKERSON APPELLANT APPEAL FROM THE FRANKLIN COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 24OJV-21-30] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN HONORABLE KEN D. COKER, JR., APPELLEES JUDGE
AFFIRMED
MIKE MURPHY, Judge
Appellant Brooke Wilkerson appeals the order of the Franklin County Circuit Court
terminating her parental rights to her children, MC1 and MC2. On appeal, she argues that
the court failed to take into consideration the impact of severing the sibling relationship as
a part of its best-interest analysis, and further, there was not sufficient evidence of potential
harm if the children were returned to Wilkerson’s custody. We affirm.
MC1 and MC2 were taken into the custody of the Arkansas Department of Human
Services (DHS) on December 18, 2021, when Wilkerson was arrested and no other family
members could be contacted. The children were ages five and seven at the time of the
removal. DHS was granted ex parte emergency custody, and the court later found that
probable cause existed to continue that custody. Wilkerson later stipulated to a dependency- neglect finding based on inadequate supervision. After several months of minimal
compliance, the goal of the case was changed to adoption with a concurrent goal of
placement with a fit and willing relative. After the goal was changed, on February 23, 2023,
DHS and the attorney ad litem filed a joint petition to terminate Wilkerson’s parental rights.
A termination hearing was held on April 26, 2023. At that hearing, the DHS
caseworker, Cheryl Warden, testified that she had worked on this case since it opened. She
explained that the children were placed in separate homes because one of them required a
therapeutic placement. Both children are in counseling and doing well in school. Warden
said Wilkerson required redirection on Zoom visits, and they had to do Zoom visits because
Wilkerson’s behavior had previously required that they call the police. Wilkerson was very
aggressive, and when DHS asked her to take an alcohol swab and drug screen, Wilkerson
“chewed it up for a little bit and then spit it on the floor.” Additionally, Wilkerson refused
to take several drug tests, produced some tests that were adulterated, and produced other
tests with “no temp.”
Warden testified that Wilkerson was positive for meth in October 2022 and that
Wilkerson “tried to sabotage every time” DHS made an appointment for her to have
treatment. Wilkerson was offered drug treatment, counseling, parenting classes,
transportation, and visits. Wilkerson would not take a drug test the morning of the
termination hearing. Warden said that she did not think there were any services DHS could
offer that have not already been offered or that would be beneficial to Wilkerson. Wilkerson
never advanced to unsupervised visits with her children. DHS would be concerned if the
2 children were returned to Wilkerson’s custody due to her lack of suitable transportation,
lack of a suitable home, unaddressed drug and alcohol problems, and mental-health
concerns.
When asked about the children’s adoptability, Warden testified that while the
children have some issues, she did not think the issues would prevent them from being
adopted; she thinks the children are adoptable. Two families were interested in adopting the
children.
The court terminated Wilkerson’s parental rights in an order entered May 17, 2023.
On appeal, Wilkerson argues that the circuit court erred in making its best-interest finding
when it failed to consider the effect of the termination on the sibling relationship,
considering that the children were in separate placements. She further argues that there was
insufficient evidence of potential harm if the children were returned to her.
We review termination-of-parental-rights cases de novo. Roland v. Ark. Dep’t of Hum.
Servs., 2018 Ark. App. 333, 552 S.W.3d 443. At least one statutory ground must exist, in
addition to a finding that it is in the child’s best interest to terminate parental rights; these
must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(A),(B)
(Supp. 2023). In making a best-interest determination, the circuit court is required to
consider two factors: (1) the likelihood that the child will be adopted and (2) the potential
of harm to the child if custody is returned to a parent. Ware v. Ark. Dep’t of Hum. Servs., 2016
Ark. App. 480, at 6–7, 503 S.W.3d 874, 878. The potential harm to the child is a factor to
be considered, but a specific potential harm does not have to be identified or proved by clear
3 and convincing evidence. Pine v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 781, at 11, 379
S.W.3d 703, 709. The potential-harm analysis is to be conducted in broad terms. Id. It is the
“best interest” finding that must be supported by clear and convincing evidence. Singleton v.
Ark. Dep’t of Hum. Servs., 2015 Ark. App. 455, at 5, 468 S.W.3d 809, 812.
We will not reverse a termination order unless the circuit court’s findings are clearly
erroneous. Fisher v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 39, at 4, 569 S.W.3d 886, 888.
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. Credibility determinations are left to the fact-finder. Kerr v. Ark. Dep’t of Hum.
Servs., 2016 Ark. App. 271, at 6, 493 S.W.3d 342, 346.
On appeal, Wilkerson does not challenge the statutory grounds and instead limits
her argument to the best-interest determination. We will address her points out of order.
To the extent that Wilkerson challenges that her children are not adoptable, the
caseworker testified that they are, even given their specific issues. Two families were
interested in them. A caseworker’s testimony that a child is adoptable is sufficient to support
an adoptability finding. Cole v. Ark. Dep’t of Hum. Servs., 2018 Ark. App 121, 543 S.W.3d
540.
Regarding potential harm, Wilkerson asserts that there was insufficient evidence that
the children would be at risk of harm if returned to her custody. Wilkerson explains that
because she “was never allowed unsupervised visits with the children,” it cannot be known
if her ability to adequately supervise the children was remedied. The evidence for potential
4 harm is viewed in a forward-looking manner and considered in broad terms, but a circuit
court is not required to find that actual harm will result or to affirmatively identify a potential
harm. Bentley v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 374, at 14, 554 S.W.3d 285, 294.
Here, the court specifically found that the children
would be subjected to potential harm because the parent lacks stable and appropriate housing, lacks stable and sufficient income or employment, has not addressed her substance abuse problem, has not addressed her mental health issues, and has acted erratic during visits to the point that the Court has suspended her in-person visitation.
These are all findings supported by the testimony in this record, and this court has
held that failure to provide appropriate housing is contrary to the best interest of children,
see, e.g., Selsor v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 182, at 6, 516 S.W.3d 314, 318
(collecting cases); failure to obtain sufficient employment or income is contrary to the best
interest of children, see, e.g., Simmons v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 233, at 12;
and continued drug use is contrary to the best interest of children, see, e.g., Bolden v. Ark.
Dep’t of Hum. Servs., 2018 Ark. App. 218, at 12, 547 S.W.3d 129, 136. Unresolved mental-
health issues further support a finding of potential harm. Manning v. Ark. Dep’t of Hum. Servs.,
2023 Ark. App. 565, 17. ___ S.W.3d ___, ___. The potential-harm finding was not clearly
erroneous.
We now turn to Wilkerson’s point about the children’s potential separation from
one another by adoption. She contends that the siblings’ relationship should have been
considered as part of the best-interest analysis. She cites Caldwell v. Arkansas Department of
5 Human Services, 2010 Ark. App. 102, and Clark v. Arkansas Department of Human Services,
2016 Ark. App. 286, 493 S.W.3d 782. Neither present meritorious grounds for reversal.
First, we reversed the termination in Caldwell because we held that terminating the
parental rights of only the father would not serve to achieve permanency and that the
termination of the father’s rights endangered the child’s relationship with her paternal
grandmother, which the circuit court found to be the most stable influence on the child.
Nor is Clark applicable: it concerned an appeal of a custody award between two parents—not
a termination of parental rights. The Juvenile Code does not require certainty, let alone a
“guarantee,” that siblings be adoptable as a group. Corley v. Ark. Dep’t of Hum. Servs., 2018
Ark. App. 397, at 9, 556 S.W.3d 538, 544. Evidence of a precise adoptive placement is not
required and neither is evidence that the children be placed in the same foster home before
termination. Rocha v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 454, at 15, 637 S.W.3d 299,
309.
The intent behind the termination-of-parental-rights statute is to provide permanency
in a child’s life when it is not possible to return the child to the family home because it is
contrary to the child’s health, safety, or welfare, and a return to the family home cannot be
accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.
Code Ann. § 9-27-341(a)(3). At the time of the termination hearing, the children had been
out of Wilkerson’s custody for over a year, and Wilkerson had not made significant progress
toward reunification. After a de novo review, we are not left with a definite and firm
conviction that a mistake has been made.
6 Affirmed.
KLAPPENBACH and BARRETT, JJ., agree.
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor children.