Williams v. Ark. Dep't of Human Servs. , 2014 Ark. App. 481 ( 2014 )

2014 Ark. App. 481
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-320
Opinion Delivered September 17, 2014
BRANDON WILLIAMS
APPELLANT APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. JV-2012-445]
ARKANSAS DEPARTMENT OF HONORABLE VICKI SHAW COOK,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
RHONDA K. WOOD, Judge
Under the Arkansas Juvenile Code, the circuit court must consider whether a child
could be adopted before terminating a parent’s rights to that child. Here, the court
terminated Brandon Williams’s parental rights to his six children. There was no evidence
offered regarding the oldest two children’s adoptability at the termination hearing. This
lack of evidence regarding adoptability, without some other specific finding, renders the
court’s best-interest ruling clearly erroneous as to these two children. We accordingly
affirm in part and reverse and remand in part.
The Department of Human Services exercised a 72-hour hold on Brandon
Williams’s six children. The court adjudicated all six children dependent-neglected. The
four youngest (H.W.1, N.W., A.W., and H.W.2) remained in foster care, but the two
oldest (C.W. and B.W.) were placed in the custody of a maternal aunt and uncle. After
efforts to reunify failed, the Department filed a petition to terminate Williams’s parental
2014 Ark. App. 481
rights to all six children.1 Yet at the hearing, the Department only recommended
termination as to the youngest four; it sought permanent placement with a relative for the
oldest two. An adoption specialist testified that the four youngest children were very likely
to be adopted. There was no mention as to whether the two oldest were likely to be
adopted. However, the circuit court terminated Williams’s rights to all six children.
We review cases involving the termination of parental rights de novo. Grant v. Ark.
Dep’t of Human Servs., 2010 Ark. App. 636, 378 S.W.3d 227. The grounds for termination
must be proved by clear and convincing evidence. Id. The question on appeal is whether
the circuit court’s finding that the disputed fact was proved by clear and convincing
evidence is clearly erroneous. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798,
378 S.W.3d 290. 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.
The 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.
J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). The first step
requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. §
9-27-341(b)(3)(B). The second step requires consideration of whether the termination of
parental rights is in the children’s best interest, which includes consideration of the
likelihood that they will be adopted and the potential harm caused by returning custody of
1The court also terminated the mother’s parental rights, but she has not appealed
the termination order.
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them to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The court, however, does not
have to determine that every factor considered be established by clear and convincing
evidence; instead, after considering all the factors, the evidence must be clear and
convincing that the termination is in the best interest of the child. McFarland v. Ark. Dep’t
of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005).
Williams does not appeal the statutory grounds for termination but instead attacks
the court’s best-interest finding. He argues that the lack of evidence regarding adoptability
is fatal to the court’s termination order as to the two oldest children. The Department and
the ad litem agree with Williams’s assessment. Our court has said that “[a]doptability is
merely a consideration and not a requirement.” Grant, 2010 Ark. App. 636, at 13, 378
S.W.3d at 233. Even so, “[c]onsideration requires evidence . . . or at least some finding by
the trial court that other aspects of the best-interest analysis so favor termination that the
absence of proof on adoptability makes no legal difference.” Haynes v. Ark. Dep’t of
Human Servs., 2010 Ark. App. 28, at 4. Therefore, under our prior cases, the circuit
court’s best-interest analysis will be insufficient unless there is some evidence regarding
adoptability or if the court explains why termination is in the children’s best interest
regardless of their adoptability.
Here, there was no evidence regarding adoptability of the two oldest children. The
court’s order included language that the court considered adoptability and referenced the
adoption specialist’s testimony as the basis. However, the specialist never mentioned the
older two children’s adoptability and limited her opinion to the four youngest children.
Further, the court made no finding that this absence of evidence of adoptability made “no
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2014 Ark. App. 481
legal difference” to the ultimate decision of what was in the children’s best interest.
Accordingly, the court clearly erred when it found that termination of Williams’s parental
rights to his two oldest children was in their best interest. We reverse the termination
order as to these two oldest children and remand for further proceedings. Because
Williams does not challenge any other portions of the court’s ruling, we affirm the
termination order as to the four youngest children.
Affirmed in part; reversed and remanded in part.
GLADWIN, C.J., and BROWN, J., agree.
Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect
Appellate Division, for appellant.
Tabitha B. McNulty, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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