Cite as 2024 Ark. App. 276 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-23-846
ILDIFONSO GARZA AND SHANA Opinion Delivered April 24, 2024
HEMBREY APPEAL FROM THE JACKSON APPELLANTS COUNTY CIRCUIT COURT [NO. 34JV-21-131] V. HONORABLE ADAM G. WEEKS, ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES AND MINOR CHILD AFFIRMED APPELLEES
CINDY GRACE THYER, Judge
Ildifonso Garza and Shana Hembrey each separately appeal the Jackson County
Circuit Court’s order terminating their parental rights to their daughter, MC. Neither party
challenges the statutory grounds for the termination; instead, they both argue that the circuit
court erred in finding that termination was in MC’s best interest. We affirm.
On October 2, 2021, the Arkansas Department of Human Services (DHS) received a
Garrett’s Law report that MC had tested positive for amphetamine at birth. When
questioned by the family service worker, Hembrey admitted using methamphetamine the
weekend prior, and her drug screen came back positive for methamphetamine and opioids.
Garza was present at the hospital but refused to submit to a drug screen. Hembrey informed
DHS that she did not want Garza involved and did not intend to place his name on the birth certificate. Garza then left the hospital. As a result of their investigation, DHS placed a
seventy-two-hour hold on MC.
On October 6, DHS attempted to contact Hembrey to assess her home. When DHS
family service workers (FSWs) arrived at the address Hembrey had provided at removal, they
were told that Hembrey did not live at that address but lived with her grandparents. When
the workers went to the grandparents’ home, they found it to be clean and tidy except for
Hembrey’s room, which was in disarray. The only baby item in the home was a highchair.
There was no crib, bassinet, or clothing present. Hembrey was not present during the visit
but agreed to travel to the DHS office for a meeting later that day. While there, she submitted
to another drug screen, which revealed she was positive for methamphetamine,
amphetamine, and opioids. She then admitted using controlled substances upon her release
from the hospital. As a result, DHS exercised another seventy-two-hour hold on the child.1
On October 7, DHS filed a petition for emergency custody and dependency-neglect
naming Hembrey as a parent and identifying Garza as a putative parent. The affidavit in
support of the petition set out the foregoing facts and stated that removal was necessary
because Hembrey’s substance abuse seriously affected her ability to supervise, protect, or care
for the child. The ex parte order for emergency custody was granted that same day.
In an October 13 order, the circuit court found that probable cause existed and
continued to exist and that it was in the best interest of MC to remain in DHS custody. The
1 This second seventy-two-hour hold was necessitated by DHS’s failure to submit a timely ex parte order for emergency custody when the child was first removed.
2 court further found that DHS had been involved with the family since December 2010 but
that the services had not prevented removal because Hembrey had given birth to MC, who
tested positive for methamphetamine. Hembrey attended the probable-cause hearing; Garza
did not.
In a December 2 order, the circuit court adjudicated MC dependent-neglected due to
parental unfitness caused by Hembrey’s drug usage. Garza failed to appear at the hearing,
and the circuit court ultimately dismissed him from the action, finding that he had not
established significant contacts with MC and that his rights as a putative parent had not
attached. The court set a goal of reunification and ordered Hembrey to comply with the
approved case plan.
In January 2022, Hembrey, who had been placed on probation for crimes committed
in July 2019,2 had her probation revoked. Upon revocation, she was sentenced to a total of
thirty-six years in the Arkansas Department of Correction.
In March and August 2022, the circuit court entered review orders continuing the
goal of reunification and finding that safety concerns prevented a trial placement with, or
return of custody to, Hembrey because of her continued incarceration.
A permanency-planning hearing was held on November 1, 2022. After the hearing,
the court changed the goal of the case to adoption. The court found that Hembrey had not
2 Hembrey was on probation for two counts of financial identity fraud and one count of theft of property (credit/debit card). She received fifteen years on each of the fraud counts and six years on the theft count, to run consecutively.
3 complied with the case plan and orders of the court; had not demonstrated progress towards
the goal of the case plan; and was not working to remedy the issues that prevent the safe
return of the juvenile. Specifically, the court noted that Hembrey remained incarcerated.
Shortly thereafter, on November 14, 2022, DHS filed a petition for termination of
parental rights asserting multiple statutory grounds against Hembrey—twelve-month failure
to remedy, subsequent other factors, aggravated circumstances, and incarceration.
On April 14, 2023, Garza signed an acknowledgment of paternity. On the same date,
stating its intent to file an updated petition, DHS moved to dismiss its termination petition,
which the court granted. Subsequently, Garza was recognized as a parent, was again added
as a party, and was appointed counsel.
On June 26, 2023, DHS filed another petition to terminate parental rights. As to
Hembrey, the petition again alleged twelve-month-failure-to-remedy, subsequent-other-
factors, aggravated-circumstances, and incarceration grounds. As to Garza, it alleged the
following grounds to support termination: noncustodial parent twelve-month failure to
remedy, twelve-month failure to provide significant material support or maintain meaningful
contact, subsequent other factors, aggravated circumstances, abandonment, and
incarceration.
A termination hearing took place on September 26. Garza and Hembrey testified, as
did Natalie Hohn (the FSW), April Stokes (the FSW supervisor), and Hannah Briggs (the
foster parent).
4 Garza testified that he believed MC to be his daughter, that he was present at the
hospital when she was born, and that he was aware that she was placed in foster care shortly
after birth. He admitted that he had refused the drug screen requested by DHS at the hospital
but claimed he would have tested negative for illegal substances. He stated that he waited
almost a year and a half to contact DHS because DHS told him it could not help him and
that he would need a lawyer. He further explained that his father had died, and because he
was absconding, he was afraid he would go to prison. He further admitted that his probation
had been revoked and that he was serving a five-year sentence he had received for credit-card
fraud. However, he claimed that he would not serve the entire five-year sentence and was set
to be released on December 12.3 He also admitted that at the time of his arrest, he was found
in possession of methamphetamine and was convicted of that charge as well.
Garza then testified that he had engaged in Zoom visits with MC after he had signed
the acknowledgement of paternity and that they had gone pretty well. However, he had not
had any face-to-face contact with MC for almost eleven months. 4 When asked, he admitted
he had not paid any child support for MC but asserted that the court had never ordered him
to pay any support for her either. He further noted that he had been paying child support
for his other two children who lived with their mother. He stated he had taken parenting,
3 He claimed his release date was set because he had been sentenced to judicial transfer to ACC. 4 He testified that he saw MC five or six times during the time MC was placed with Hembrey’s sister.
5 fatherhood, and money-management classes and intended to get his GED. He also claimed
to own a home—the one in which he was arrested and found with methamphetamine—but
acknowledged it was not suitable for MC.
As for his plans to parent MC, he stated he hoped to leave the county, get another
house, and get a job at the steel mill in Osceola when he was released from prison. He
believed he would be able to achieve his goals within three or four months after his release.
Even though MC had spent her entire two years of life in foster care, he denied abandoning
her and asked for more time and a chance to parent her.
Hembrey testified next and confirmed that she had been sentenced to thirty-six years
in prison, was presently incarcerated, and had been incarcerated since October 24, 2021.
She noted that she was four years and two months away from her release date. She claimed
that she had participated in multiple programs while in prison, including parenting classes,
and that she had enrolled in college courses in pursuit of a business degree.
As for visitation with MC, she claimed that she had been allowed Zoom visits with
her and had attended them all. She admitted that the only in-person contact with MC
occurred during the three weeks after MC’s birth and before Hembrey’s arrest. She
acknowledged that for a period of almost one year thereafter, visitation did not occur because
MC was staying with her sister, who was not on Hembrey’s approved visitor list at the jail.
Hembrey argued that she would have bonded with MC during that time if she had been
provided visitation.
6 As for her substance-abuse issues, Hembrey acknowledged she has a drug problem
and had failed two drug screens but asserted that her drug issue was currently under control.
She asserted that she had received a certificate for completing a substance-use rehabilitation
class and had not had a positive drug screen for ten months. She complained that DHS had
not provided her with any services other than Zoom visitation since her incarceration.
As for MC’s care, Hembrey asked that her parental rights not be terminated and that
Garza be given the opportunity to parent MC. She explained that she had not placed Garza
on MC’s birth certificate initially because they were not on good terms at that point. She
also listed several relatives that she believed could take custody of MC. She indicated that
she did not believe it would be hard on MC to be moved from her current placement because
she was too young for lasting memories and would adjust to being home with her family.
She stated that, once she was released, she planned to leave the county, finish her degree,
and get a job elsewhere.
Natalie Hohn, the FSW assigned to the case, was the next to testify. She
recommended that parental rights be terminated so DHS could move forward with plans for
MC’s adoption. She stated that MC had been in care for the entirety of her life—almost two
years—and that MC could still not be placed with either parent due to their incarceration.
She noted that Hembrey had been sentenced to thirty-six years in prison and Garza five,
although Garza was set to be released on December 12. Because of their incarceration, the
only services DHS could provide were Zoom visits, updated case plans, and pictures. She
7 testified that MC is a healthy child; she was unaware of any obstacles to her adoption; and
that it was in MC’s best interest to move forward with termination.
As for Garza, she testified that he was initially only considered a putative father and
that he had not appeared at the first two hearings. She stated that she spoke to him only
once on the telephone, on October 6, and that he was supposed to meet with her at the
office, but he did not show. She stated he had had no contact with DHS until shortly before
the acknowledgment of paternity was filed. Once he established paternity, a case plan was
developed. She stated that he was able to access parenting classes through the ADC, but they
had been unable to perform drug screens.
April Stokes, the FSW supervisor assigned to the case since its inception, testified that
she also agreed with the recommendation that Garza and Hembrey’s parental rights be
terminated and that termination was in MC’s best interest. Additionally, she testified that
she was unaware of any issues that would prolong or prevent MC from being adopted.
Stokes then testified to potential relative placements investigated by DHS. She stated
that MC was initially placed with Hembrey’s sister, Janice Williams, after removal. MC was
in that placement for almost a year but ultimately had to be removed because of reports of
Williams’s irrational behavior and drug use. Stokes stated that DHS had been provided with
nine other potential relative-placement options; that one of the potential placements was
still under review and had yet to be denied; but that there were concerns with the rest. She
then described in detail the concerns DHS had with each of the nine prospective placement
options.
8 The last witness to testify at the hearing was the foster mother, Hannah Briggs. She
testified that MC is her foster daughter and had been placed in her home for over a year.
She stated that MC had bonded with and become very attached to her adopted daughter
while living there.
At the conclusion of the hearing, the circuit court terminated the parental rights of
both Hembrey and Garza. It terminated Hembrey’s parental rights on the grounds of failure
to remedy, incarceration, and aggravated circumstances—little likelihood for successful
reunification. It terminated Garza’s parental rights on the grounds of incarceration,
subsequent other factors, and aggravated circumstances—little likelihood for successful
reunification. As to both parents, it found that termination was in the MC’s best interest.
Specifically, the court found that both parents were incarcerated, and neither had a safe and
appropriate home for MC.
Both Hembrey and Garza have now appealed the circuit court’s termination of their
parental rights. We review termination-of-parental-rights cases de novo. Heath v. Ark. Dep’t of
Hum. Servs., 2019 Ark. App. 255, 576 S.W.3d 86. We review for clear error, and 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.
A court may order termination of parental rights if it finds clear and convincing evidence to
support one or more statutory grounds listed in the Juvenile Code, Ark. Code Ann. § 9-27-
341(b)(3)(B) (Supp. 2023), and that termination is in the best interest of the child, taking
into consideration the likelihood of adoption and the potential harm to the health and safety
9 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).
On appeal, Garza and Hembrey assert only that the termination of their parental
rights was not in MC’s best interest, and as to best interest, they challenge only the potential-
harm prong of the best-interest finding. In assessing the potential-harm factor, the circuit
court is not required to find that actual harm would result or to identify specific potential
harm. Gonzalez v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 425, 555 S.W.3d 915. Potential
harm must be viewed in a forward-looking manner and in broad terms, but a court may
consider a parent’s past behavior as a predictor of future behavior. Id. at 12, 555 S.W.3d at
921.
As to his claim of error, Garza challenges the court’s determination that MC could
not be returned to the family home within a “reasonable period of time as viewed from the
child’s perspective.” He notes that MC is only two years old and that an additional three
months is an insignificant amount of time when compared to the next sixteen years of being
forever separated from her father. He claims that he is making progress; that he is only
months from being released from prison; that MC is currently in a stable placement; that
there is still one more relative placement being explored by DHS; and that the age of the
case is the only factor supporting termination. He argues that when a parent demonstrates
stability and a reasonable hope for reunification, there is no harm in waiting a little longer
before terminating parental rights. Because there is reasonable hope for him to be able to
parent MC, he claims the termination decision should be reversed.
10 However, sufficient evidence supports the court’s best-interest finding as to Garza
because Garza has not demonstrated stability and a reasonable hope for reunification. He is
currently incarcerated, and although his potential release date was only a few months away
at the time of the hearing, he admitted he had not yet secured employment or suitable
housing upon his release. This court has affirmed a potential-harm finding based on
incarceration because the lack of stable housing and employment due to incarceration are
sufficient to prove potential harm. See, e.g., Martin v. Ark. Dep’t of Hum. Servs., 2022 Ark. App.
508, at 10, 657 S.W.3d 881, 887 (citing Brumley v. Ark. Dep’t of Hum. Servs., 2015 Ark. 356,
at 10–12). Moreover, while he allegedly visited MC five or six times prior to his incarceration
and by Zoom thereafter, there was no evidence as to what type of a bond, if any, he had with
MC. He failed to even acknowledge his paternity for more than a year after her birth because
he chose to abscond rather than fulfill his parental obligations. And while he points to the
fact that he has other children whom he supports financially, those children live with their
mother, and there is no evidence that he has any bond with those children or that MC has
forged any bonds with them. There was also evidence introduced at the hearing that he
refused a drug screen at the hospital after MC’s birth and that he was found to be in
possession of a controlled substance when he was subsequently arrested. Thus, it is unclear
the extent of his substance-abuse issues, if any.
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
11 accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.
Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is not determinative;
the issue is whether the parent has become a stable, safe parent able to care for his or her
child. Schaible v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371.
Moreover, a child’s need for permanency and stability may override a parent’s request for
additional time to improve the parent's circumstances. Id., 444 S.W.3d at 371. Simply put,
there was insufficient evidence to support Garza’s claim that he would be able to begin
parenting MC upon his release from prison, and there was sufficient evidence upon which
to support the court’s determination that termination was in her best interest.
Hembrey, in her brief, argues that termination was not appropriate because relative
placement was a less restrictive alternative to termination. She claims that DHS only paid lip
service to the search for relative placement and simply denied some of the potential relative
placements without properly determining whether those relatives would actually qualify as a
placement option. She identified three potential relative placements: Alberto Garza (Garza’s
brother); Jasmine Hernandez (Garza’s cousin); and Davina Hembrey (her stepmother).
As stated above, Stokes, the FSW supervisor, testified in detail the concerns DHS had
with the potential placement options suggested by Hembrey. She testified that that Alberto
was denied because he lived in a home that was admittedly unsuitable. Jasmine was denied
because she lived in her boyfriend’s home along with him and his mother; that her boyfriend
was the only one in the household with a valid driver’s license; and that her boyfriend had
tested positive for THC despite not having a medical marijuana prescription. Additionally,
12 Jasmine indicated that if her boyfriend had known he was going to be drug tested, he would
have been prepared—in other words, he would have hidden his illegal drug use. As for
Davina, Stokes testified that she had not been forthcoming and truthful with DHS. Davina
informed DHS that she was separated from Hembrey’s father; however, her social media
posts suggested otherwise. She also told DHS that, despite their separation, she did not
intend to divorce him. This is important because Hembrey’s father was on active parole, and
it is DHS policy that persons on active parole cannot be provisional foster parents.
In order to make a least-restrictive-placement argument on appeal, at a minimum,
there must be an appropriate and approved relative in the picture. We have held that where
relatives have not been approved for placement and the children remained in foster care, the
existence of potential relatives was not a basis to reverse a termination decision. Thomas v.
Ark. Dep’t of Hum. Servs., 2020 Ark. App. 457, 610 S.W.3d 688; Dominguez v. Ark. Dep’t of
Hum. Servs., 2020 Ark. App. 2, 592 S.W.3d 723. Because there were no approved relative-
placement options available at the time of the termination hearing, and because there was
no reasonable hope for reunification within a reasonable time frame from MC’s perspective,
the court’s termination decision as to Hembrey was not in error.
Affirmed.
ABRAMSON and MURPHY, JJ., agree.
Dusti Standridge, for separate appellant Ildifonso Garza.
James & Streit, by: Jonathan R. Streit, for separate appellant Shana “Hembrey.
13 Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for
appellee.
Dana McClain, attorney ad litem for minor child.