Cite as 2019 Ark. App. 442 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry DIVISION IV Date: 2022.08.03 13:32:03 No. CV-19-476 -05'00' Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 2, 2019
LISA WHITEHEAD APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. TENTH DIVISION [NO. 60JV-17-879] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE JOYCE WILLIAMS CHILDREN WARREN, JUDGE APPELLEES AFFIRMED
MIKE MURPHY, Judge
Lisa Whitehead appeals the Pulaski County Circuit Court’s order terminating her
parental rights to her two children. On appeal, she argues that the termination of her parental
rights was not in her children’s best interest. We affirm.
At the time of the termination, one child was sixteen and the other was thirteen. On
appeal, the crux of Lisa’s argument is that termination was not in the children’s best interest
because they did not want to be adopted and wanted to remain together.
The Arkansas Department of Human Services (DHS) became involved with this
family in June 2017, when the family’s apartment caught fire. While being interviewed, the
children disclosed that Lisa used drugs in front of them. Lisa admitted using marijuana and
sherm 1 and tested positive for PCP. DHS opened a protective-services case and made
1 Cigarettes dipped in PCP. referrals to provide Lisa with services. The boys went to live with a cousin, but when the
cousin could no longer care for the children, DHS took a seventy-two hour hold on the
juveniles.
In August 2017, the court found that probable cause existed to continue custody
with DHS, and the children were adjudicated dependent-neglected the next month. The
court found the children were dependent-neglected and made specific findings that the
mother lacked stable housing, refused services, and had positive drug screens for PCP and
cocaine.
The case progressed, and while Lisa had some compliance with the court’s orders
throughout the case, she was never in full compliance, and there was never a point in which
the children could be safely placed with her. On December 7, 2018, DHS filed a petition
seeking termination of Lisa’s parental rights, alleging the grounds of failure to remedy, 2
subsequent factors, 3 and aggravated circumstances. 4
On February 27, 2019, the circuit court held a termination hearing. It heard
testimony from Lisa, who testified that at the time of the hearing, she was staying with a
friend, did not have a job, had used PCP three weeks before the hearing, and had not
completed any of the drug-treatment classes. It next heard testimony from the caseworker,
Lauren Hill. Lauren corroborated much of Lisa’s testimony and further testified that if the
boys were returned to Lisa they would be returned to a “very unstable, unpredictable, and
2 Ark. Code Ann. § 9-27-341(b)(3)(B)(i) (Supp. 2017). 3 Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). 4 Ark. Code Ann. § 9-27-341(b)(3)(B)(ix).
2 unsafe home environment.” She said that it was extremely important for the boys to
maintain their sibling bond and that they wanted to reunify with their mother. Lauren
further testified that the older boy was almost seventeen and his consent would be required
for any adoption. She stated that DHS was unable to find a relative who would assume
custody of the boys. A maternal aunt was willing to take the boys, but DHS was concerned
about the size of her apartment and her suspended license. The aunt did resolve her license
issue, but Lauren said there was a lack of movement regarding that placement because the
aunt was not returning Lauren’s calls.
An adoption specialist also testified. She said that the boys are adoptable and there
are ninety-two families in the database willing to adopt a sibling group such as theirs. She
also testified that when a child is unwilling to consent, DHS moves forward with adoption
for the other child alone. She stated that there have been situations in which children do
not want to be adopted but ultimately do consent to an adoption. She believed there were
no barriers to these boys being adopted.
At the conclusion of the hearing, the court granted DHS’s petition to terminate Lisa’s
parental rights to her sons on all three grounds pleaded by DHS. An order was entered to
that effect on March 25, 2019, and Lisa timely appealed. On appeal, she argues that the
termination of her parental rights was not in the children’s best interest.
Termination-of-parental rights cases are reviewed de novo. Mitchell v. Ark. Dep’t of
Human Servs., 2013 Ark. App. 715, at 1, 430 S.W.3d 851, 852. The termination-of-
parental-rights analysis is twofold; it requires the circuit court to find that the parent is unfit
and that termination is in the best interest of the child. Fisher v. Ark. Dep’t of Human Servs.,
3 2019 Ark. App. 39, at 4, 569 S.W.3d 886, 888. The first step requires proof of one or more
of the nine enumerated statutory grounds for termination. Id. The second step, a best-
interest determination, must consider the likelihood that the children will be adopted and
the potential harm caused by returning custody of the children to the parent. Id.
The appellate inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous. Mitchell, 2013 Ark. App. 715,
at 2, 430 S.W.3d at 853. 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. Due regard is given to the circuit court’s
opportunity to judge the credibility of the witnesses. Childress v. Ark. Dep’t of Human Servs.,
2009 Ark. App. 322, at 5, 307 S.W.3d 50, 53.
On appeal, Lisa does not challenge the statutory grounds and instead limits her
argument to the best-interest determination. But even within her best-interest argument,
Lisa does not address the findings associated with adoptability or potential harm. Because
she has not challenged the court’s decision as to the grounds for termination, adoptability,
or potential harm, we need not address them now. Fisher, 2019 Ark. App. 39, at 5, 569
S.W.3d at 888. Instead, Lisa contends that the circuit court’s decision to terminate her
parental rights was erroneous and not in the children’s best interest when considering the
age of the children, their desire for reunification, and her request for additional time. We
reject Lisa’s arguments.
Lisa contends that the boys’ older ages make it harder for them to find adoptive
homes and that their desire to maintain a relationship with their mother and each other
4 would always put any potential adoption at risk. Lisa did not advance these arguments to
the circuit court and they are not preserved for appellate review. See, e.g., Strickland v. Ark.
Dep’t of Human Servs., 2018 Ark. App. 608, at 11, 567 S.W.3d 870, 877.
Second, the circuit court accepted and considered evidence concerning the children’s
preferences regarding placement and adoption, but DHS was not required to provide any
proof on the issue of consent to adoption. See, e.g., Guardado v. Ark. Dep’t of Human Servs.,
2019 Ark. App. 16, at 6, 568 S.W.3d 296, 299 (“Guardado has cited no legal authority, and
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Cite as 2019 Ark. App. 442 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry DIVISION IV Date: 2022.08.03 13:32:03 No. CV-19-476 -05'00' Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 2, 2019
LISA WHITEHEAD APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. TENTH DIVISION [NO. 60JV-17-879] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE JOYCE WILLIAMS CHILDREN WARREN, JUDGE APPELLEES AFFIRMED
MIKE MURPHY, Judge
Lisa Whitehead appeals the Pulaski County Circuit Court’s order terminating her
parental rights to her two children. On appeal, she argues that the termination of her parental
rights was not in her children’s best interest. We affirm.
At the time of the termination, one child was sixteen and the other was thirteen. On
appeal, the crux of Lisa’s argument is that termination was not in the children’s best interest
because they did not want to be adopted and wanted to remain together.
The Arkansas Department of Human Services (DHS) became involved with this
family in June 2017, when the family’s apartment caught fire. While being interviewed, the
children disclosed that Lisa used drugs in front of them. Lisa admitted using marijuana and
sherm 1 and tested positive for PCP. DHS opened a protective-services case and made
1 Cigarettes dipped in PCP. referrals to provide Lisa with services. The boys went to live with a cousin, but when the
cousin could no longer care for the children, DHS took a seventy-two hour hold on the
juveniles.
In August 2017, the court found that probable cause existed to continue custody
with DHS, and the children were adjudicated dependent-neglected the next month. The
court found the children were dependent-neglected and made specific findings that the
mother lacked stable housing, refused services, and had positive drug screens for PCP and
cocaine.
The case progressed, and while Lisa had some compliance with the court’s orders
throughout the case, she was never in full compliance, and there was never a point in which
the children could be safely placed with her. On December 7, 2018, DHS filed a petition
seeking termination of Lisa’s parental rights, alleging the grounds of failure to remedy, 2
subsequent factors, 3 and aggravated circumstances. 4
On February 27, 2019, the circuit court held a termination hearing. It heard
testimony from Lisa, who testified that at the time of the hearing, she was staying with a
friend, did not have a job, had used PCP three weeks before the hearing, and had not
completed any of the drug-treatment classes. It next heard testimony from the caseworker,
Lauren Hill. Lauren corroborated much of Lisa’s testimony and further testified that if the
boys were returned to Lisa they would be returned to a “very unstable, unpredictable, and
2 Ark. Code Ann. § 9-27-341(b)(3)(B)(i) (Supp. 2017). 3 Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). 4 Ark. Code Ann. § 9-27-341(b)(3)(B)(ix).
2 unsafe home environment.” She said that it was extremely important for the boys to
maintain their sibling bond and that they wanted to reunify with their mother. Lauren
further testified that the older boy was almost seventeen and his consent would be required
for any adoption. She stated that DHS was unable to find a relative who would assume
custody of the boys. A maternal aunt was willing to take the boys, but DHS was concerned
about the size of her apartment and her suspended license. The aunt did resolve her license
issue, but Lauren said there was a lack of movement regarding that placement because the
aunt was not returning Lauren’s calls.
An adoption specialist also testified. She said that the boys are adoptable and there
are ninety-two families in the database willing to adopt a sibling group such as theirs. She
also testified that when a child is unwilling to consent, DHS moves forward with adoption
for the other child alone. She stated that there have been situations in which children do
not want to be adopted but ultimately do consent to an adoption. She believed there were
no barriers to these boys being adopted.
At the conclusion of the hearing, the court granted DHS’s petition to terminate Lisa’s
parental rights to her sons on all three grounds pleaded by DHS. An order was entered to
that effect on March 25, 2019, and Lisa timely appealed. On appeal, she argues that the
termination of her parental rights was not in the children’s best interest.
Termination-of-parental rights cases are reviewed de novo. Mitchell v. Ark. Dep’t of
Human Servs., 2013 Ark. App. 715, at 1, 430 S.W.3d 851, 852. The termination-of-
parental-rights analysis is twofold; it requires the circuit court to find that the parent is unfit
and that termination is in the best interest of the child. Fisher v. Ark. Dep’t of Human Servs.,
3 2019 Ark. App. 39, at 4, 569 S.W.3d 886, 888. The first step requires proof of one or more
of the nine enumerated statutory grounds for termination. Id. The second step, a best-
interest determination, must consider the likelihood that the children will be adopted and
the potential harm caused by returning custody of the children to the parent. Id.
The appellate inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous. Mitchell, 2013 Ark. App. 715,
at 2, 430 S.W.3d at 853. 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. Due regard is given to the circuit court’s
opportunity to judge the credibility of the witnesses. Childress v. Ark. Dep’t of Human Servs.,
2009 Ark. App. 322, at 5, 307 S.W.3d 50, 53.
On appeal, Lisa does not challenge the statutory grounds and instead limits her
argument to the best-interest determination. But even within her best-interest argument,
Lisa does not address the findings associated with adoptability or potential harm. Because
she has not challenged the court’s decision as to the grounds for termination, adoptability,
or potential harm, we need not address them now. Fisher, 2019 Ark. App. 39, at 5, 569
S.W.3d at 888. Instead, Lisa contends that the circuit court’s decision to terminate her
parental rights was erroneous and not in the children’s best interest when considering the
age of the children, their desire for reunification, and her request for additional time. We
reject Lisa’s arguments.
Lisa contends that the boys’ older ages make it harder for them to find adoptive
homes and that their desire to maintain a relationship with their mother and each other
4 would always put any potential adoption at risk. Lisa did not advance these arguments to
the circuit court and they are not preserved for appellate review. See, e.g., Strickland v. Ark.
Dep’t of Human Servs., 2018 Ark. App. 608, at 11, 567 S.W.3d 870, 877.
Second, the circuit court accepted and considered evidence concerning the children’s
preferences regarding placement and adoption, but DHS was not required to provide any
proof on the issue of consent to adoption. See, e.g., Guardado v. Ark. Dep’t of Human Servs.,
2019 Ark. App. 16, at 6, 568 S.W.3d 296, 299 (“Guardado has cited no legal authority, and
we are aware of none, that would mandate that the circuit court’s best-interest
determination must accommodate a child’s stated preference regarding custody.”).
Moreover, Lisa failed to preserve any argument regarding the children’s preferences or
likelihood of consent. Brabon v. Ark. Dep’t of Human Servs., 2012 Ark. App. 2, at 6, 388
S.W.3d 69, 72 (rejecting appellant’s argument that “the children did not want to be adopted
and that they were old enough to have their consent required” when the argument was not
made below).
Regarding her request for additional time, we have long held that a “a child’s need
for permanency and stability may override a parent’s request for additional time to improve
the parent’s circumstances.” Mitchell, 2013 Ark. App. 715, at 8, 430 S.W.3d at 856. Indeed,
regarding the nineteen-month-long case, Lisa conceded that both DHS and the circuit court
“[t]ried to give me as much as time as possible and I know that y’all can’t just keep
prolonging this on and prolonging this on until I get myself on track to where I need to be;
I don’t know how much time that I need.” The circuit court was not required to give Lisa
5 more time based on a vague hope of improvement, especially when the children had been
out of her custody for nineteen months.
Finally, no evidence was presented to the circuit court regarding a viable relative-
placement or custody option; thus, it was not clear error for the circuit court to find that
termination of Lisa’s parental rights was in the children’s best interest. At the termination
hearing, Lisa conceded that she did not have any available, appropriate relatives willing to
take custody of her children. In addition, Lauren testified about DHS’s efforts to pursue the
possibility of permanent custody with a relative and two fictive kin. However, none of the
three individuals identified were willing to follow through with the process. Therefore, the
circuit court did not err in finding that it was in the children’s best interest to terminate
Lisa’s parental rights.
Affirmed.
GRUBER, C.J., and HARRISON, J., agree.
Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.
Callie Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.