Miller v. Arkansas Department of Human Services ( 2016 )

Cite as 2016 Ark. App. 249
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-1011
Opinion Delivered May 4, 2016
JEROD MILLER
APPELLANT APPEAL FROM THE SEARCY
COUNTY CIRCUIT COURT
V. [NO. 65JV-13-26]
HONORABLE TROY B. BRASWELL, JR.,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILD
APPELLEES AFFIRMED
LARRY D. VAUGHT, Judge
Jerod Miller is appealing the Searcy County Circuit Court’s order terminating his
parental rights to his daughter J.M. (born 10-24-13). This case is the companion to Miller v.
Arkansas Department of Human Services, 2016 Ark. App. ___, also decided today, in which Miller
has appealed the termination of his parental rights to two other children. The facts and
procedural history are set forth in that opinion. In the present case, Miller’s only argument on
appeal is that the trial court lacked evidence of adoptability. We affirm.
The circuit court entered a termination order in which it found that Miller had not
remedied the conditions causing removal, that termination was in J.M.’s best interest, and that
J.M. was adoptable based on the testimony of “Jennifer Matney.” No one named Jennifer
Matney testified at the hearing. However, J.M.’s foster mother testified that she and her
husband wanted to adopt J.M. if she became available for adoption. She stated that their home
Cite as 2016 Ark. App. 249
was not yet approved by the Arkansas Department of Human Services (DHS) as an adoptive
home but that it was their intention to pursue adoption.
Miller entered a timely notice of appeal. He argues that, because the court’s order
erroneously relied on the testimony of a nonexistent witness, there was no evidence of
adoptability. In Knuckles v. Arkansas Department of Human Services, 2015 Ark. App. 463, at 2–3,
469 S.W.3d 377, 378–79, we explained that we review termination-of-parental-rights cases de
novo. Id. at 2–3, 469 S.W.3d at 378–79 (citing Dinkins v. Ark. Dep’t of Human Servs., 344 Ark.
207, 40 S.W.3d 286 (2001)). However, we reverse a trial court’s decision to terminate parental
rights only when it is clearly erroneous. Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 12
S.W.3d 204 (2000); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851;
Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court on the entire
evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dep’t
of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); Hopkins v. Ark. Dep’t of Human Servs., 79
Ark. App. 1, 83 S.W.3d 418 (2002). Adoptability is a factor that must be considered in
determining a child’s best interest in a termination proceeding. Ark. Code Ann. § 9-27-
341(b)(3)(A)(i)–(ii) (Repl. 2015). We have previously held that, in order to meet the statutory
requirement, the circuit court must either have evidence of adoptability or find 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.
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While Miller argues that the court lacked evidence of adoptability, there was direct
testimony on that issue from J.M.’s foster mother, who testified that she and her husband
wanted to adopt J.M. Although the foster parents were not yet cleared for adoption, there is
no requirement that an adoptive home be approved and available for the child at the time of
the termination hearing. The statute requires consideration of whether the child is adoptable,
and a prospective parent’s interest in adopting the child indicates adoptability.
The court’s misstatement that it relied on the testimony of Jennifer Matney is not
determinative because there was other evidence of adoptability sufficient to support the
court’s best-interest finding. As stated above, we will not reverse the circuit court’s decision
absent clear error, and we have explained that “a finding is clearly erroneous when, although
there is evidence to support it, the appellate court, on the entire evidence, is left with a definite and
firm conviction that a mistake has been made.” Lively v. Ark. Dep’t of Human Servs., 2015 Ark.
App. 131, at 4, 456 S.W.3d 383, 386 (emphasis added). In Brumley v. Arkansas Department of
Human Services, 2015 Ark. 356, the Arkansas Supreme Court explained,
While our de novo review does not mean that the findings of fact of the circuit court
are dismissed out of hand and that the appellate court becomes the surrogate circuit
court, it does mean that a complete review of the evidence and the record may take
place as part of the appellate review to determine whether the trial court clearly erred
either in making a finding of fact or in failing to do so. Stehle v. Zimmerebner, 375 Ark.
446, 291 S.W.3d 573 (2009). This de novo standard opens the entire record for our
review. Conagra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). Moreover,
under this standard of review, an appellate court is not constrained by the trial court’s
rationale, but may review the record for additional reasons to affirm. See State of Wash.
v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999); see also Fenstermacher v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 88, 426 S.W.3d 483; Bradbury v. Ark. Dep’t of Human Servs., 2012
Ark. App. 680, 424 S.W.3d 896. It is well established that this court may affirm a trial
court when it has reached the right result, although it may have announced a different
reason. See Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008); see also Allen v. Ark.
Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7; Smith v. Ark. Dep’t of Human
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Servs., 100 Ark. App. 74, 264 S.W.3d 559 (2007). Thus, we review the record in the
present case to determine if the evidence supports affirmance.
Brumley, 2015 Ark. 356, at 8–9. Therefore, although we acknowledge the circuit court’s error
in attributing testimony to a witness who did not appear at the hearing, we affirm the
termination of Miller’s parental rights because the circuit court reached the correct conclusion
as to adoptability based on our review of the entire record.
Affirmed.
GLADWIN, C.J., and HIXSON, J., agree.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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