Samuels v. Arkansas Department of Human Services , 2014 Ark. App. LEXIS 720 ( 2014 )

2014 Ark. App. 527
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-471
Opinion Delivered: October 1, 2014
JAMAR SAMUELS APPEAL FROM THE UNION COUNTY
APPELLANT CIRCUIT COURT
[JV-2011-188]
V.
HONORABLE EDWIN KEATON,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILD
APPELLEES AFFIRMED
RHONDA K. WOOD, Judge
Jamar Samuels appeals the termination of his parental rights to A.S., his five-year-
old daughter. He challenges the court’s best-interest finding, the court’s findings of the
statutory grounds for termination, the lack of accommodations pursuant to the Americans
with Disabilities Act (ADA), and his counsel’s ineffectiveness. We find no error and
affirm.
I. Facts and Procedural History
In 2011, DHS removed A.S. from the custody of her mother following the death
of her sibling. The court adjudicated her dependent-neglected and ordered the goal of
permanent custody with Samuels, her father. After some time, the court placed A.S. in
Samuels’s temporary custody. Thirty-one days later, Samuels was arrested and pleaded
guilty to the third-degree domestic battery of his girlfriend; A.S. had been present during
the incident. The court removed A.S. from his custody and she remained in foster care for
2014 Ark. App. 527
another sixteen months. In August 2013, the court found that it was in A.S.’s best interest
to return her to Samuels’s custody a second time. Yet, a month later, Samuels was
arrested again, and the court returned A.S. to DHS’s custody. In January 2014, the court
terminated Samuels’s parental rights.
II. Standard of Review and Applicable Law
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). Grounds for termination of parental
rights must be proved by clear and convincing evidence. M.T. v. Ark. Dep’t of Human
Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). The question on appeal is whether the
circuit court’s finding that a disputed fact was proved by clear and convincing evidence is
clearly erroneous, giving due regard to the opportunity of the trial court to judge the
credibility of the witnesses. 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. Dinkins, supra.
Termination of parental rights is a two-step process that requires the circuit court
to find that the parent is unfit and that termination is in the best interest of the child.
L.W. v. Ark. Dep’t of Human Servs., 2011 Ark. App. 44, 380 S.W.3d 489. The first step
requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. §
9-27-341(b)(3)(B) (Supp. 2013). The second step requires consideration of whether the
termination of parental rights is in the juvenile’s best interest. Ark. Code Ann. § 9-27-
341(b)(3)(A).
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Whether termination is in the juvenile’s best interest includes consideration of the
following: (i) the likelihood that the juvenile will be adopted if the termination petition is
granted and (ii) the potential harm, specifically addressing 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). The court, however, does not have to determine that every factor
considered be established by clear and convincing evidence; instead, after considering all
of the factors, the evidence must be clear and convincing that the termination is in the
best interest of the child. L.W., supra.
III. Discussion
Here, the circuit court found two statutory grounds for termination: (1) that other
factors or issues arose subsequent to the filing of the original petition 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, Ark. Code Ann.
§ 9-27-341(b)(3)(B)(vii)(a), and (2) that the father subjected the child to aggravated
circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A).
Since the original filing, the court removed A.S. from Samuels’s custody on two
occasions. Both occasions were due to Samuels being arrested. The court also ordered,
after the initial filing, that Samuels regularly take his medication and attend counseling;
however, he failed to comply with both. We cannot say it was clearly erroneous for the
court to find that other factors arose after commencement of the case and that Samuels
demonstrated an incapacity and indifference to remedy these issues.
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2014 Ark. App. 527
The circuit court also found that Samuels subjected A.S. to aggravated
circumstances under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A)–(B). DHS alleged
this ground in its petition and the court found this ground was proved as a basis for
termination. Samuels contends that there was no proof presented that a court had found
aggravated circumstances; however, he failed to raise this specific argument at trial and
therefore it is not preserved on appeal. Ark. Dep’t of Human Servs. v. Jones, 97 Ark. App.
267, 248 S.W.3d 507 (2007).
Next, we hold that the circuit court did not err when it found that termination of
Samuels’s parental rights was in A.S.’s best interest. First, Samuels challenges the finding
that A.S. is adoptable. Adoptability is only one of the factors that the court considers when
making a best-interest decision. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)−(ii). The trial
court must simply consider the likelihood that a child will be adopted. Dority v. Ark. Dep’t
of Human Servs., 2011 Ark. App. 295. Here, the court noted that A.S. was “five years old
and adoptable, even with the behavior issues.” Supporting this finding was the testimony
of Marea Smith, an adoption specialist. She explained that there were 35 families within
150 miles of A.S.’s zip code that would be interested in adopting a child with
characteristics similar to those of A.S.’s. Additionally, she testified that there were other
factors that would improve the likelihood of A.S. being adopted, such as A.S. being
biracial, over the age of two, and qualified for a subsidy. Finally, there was testimony that
A.S.’s current foster family and the family who adopted her half-siblings were considering
adopting her.
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2014 Ark. App. 527
Second, Samuels challenges the court’s finding that there exists potential harm or
risk to A.S. if she were to return to his custody. The circuit court is not required to
affirmatively identify a potential harm or to find that actual harm would result if the child
were returned to the parent; rather, the potential-harm evidence must be viewed in a
forward-looking manner and considered in broad terms. Gutierrez v. Ark. Dep’t of Human
Servs., 2012 Ark. App. 575, 424 S.W.3d 329. In the course of this case, the court provided
two opportunities for Samuels to have custody of A.S. Both times it resulted in her return
to foster care. The court considered several other factors that demonstrated a risk of harm,
such as Samuels’s consistent failure to take his medication, his unstable housing, and his
missing approximately forty percent of his counseling sessions. A failure to comply with
court orders can indicate potential harm. B.H.1. v. Ark. Dep’t of Human Servs., 2012 Ark.
App. 532. All of this evidence of potential harm, combined with the evidence regarding
A.S.’s adoptability, supports the court’s ruling that termination of Samuels’s parental rights
was in A.S.’s best interest.
Last, Samuels contends in a convoluted argument that the termination of his
parental rights was in error because the court failed to make reasonable accommodations
for him under the ADA. He admits that he failed to raise this below, but contends it
qualifies as a Wicks exception to the contemporaneous-objection rule. Wicks v. State, 270
Ark. 781, 606 S.W.2d 366 (1980). Samuels acknowledges that our supreme court has
never found a Wicks exception in a termination case, but contends that we should do so
now because he had ineffective assistance of counsel. First, if he is in fact attempting to
raise an ineffective-assistance-of-counsel argument, we cannot consider it because Samuels
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failed to raise it below. We will not review an ineffective-assistance-of-counsel claim on
appeal unless it was “first raised in the trial court and the facts and circumstances
surrounding the claim were fully developed in the trial court.” Jones v. Ark. Dep’t of
Human Servs., 361 Ark. 164, 191, 205 S.W.3d 778, 794 (2005). Second, Samuels does not
provide any legal support for application of a Wicks exception, nor does he state which
Wicks exception would be applicable. As the Arkansas Supreme Court explained, we “will
not do [appellant’s] research” and “will affirm when the appellant’s argument is neither
supported by legal authority nor apparent without further research.” Hopper v. Garner, 328
Ark. 516, 524, 944 S.W.2d 540, 544 (1997).
After a review of all the points raised, we find no error by the circuit court and
affirm.
Affirmed.
GLADWIN, C.J., and BROWN, J., agree.
Shannon Holloway, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor child.
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