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ARKANSAS COURT OF APPEALS DIVISION IV No. CV-13-1107

ASHLEY GWINUP Opinion Delivered May 28, 2014 APPELLANT APPEAL FROM THE BENTON V. COUNTY CIRCUIT COURT [NO. J-2012-377-C/N]

ARKANSAS DEPARTMENT OF HONORABLE THOMAS E. SMITH, HUMAN SERVICES and L.R., MINOR JUDGE CHILD APPELLEES AFFIRMED

PHILLIP T. WHITEAKER, Judge

Ashley Gwinup appeals from a Benton County Circuit Court order terminating her

parental rights to her daughter, L.R. Gwinup challenges the trial court’s finding that it was

in the child’s best interest to terminate her parental rights. We find no error and affirm.

We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of

Human Servs.,

,

(2001). Termination of parental rights is an

extreme remedy and in derogation of the natural rights of parents, but parental rights will not

be enforced to the detriment or destruction of the health and well-being of the child.

Grounds for termination of parental rights must be proved by clear and convincing evidence.

Camarillo-Cox v. Ark. Dep’t of Human Servs.,

,

(2005). Clear and

convincing evidence is that degree of proof that will produce in the fact-finder a firm

conviction as to the allegation sought to be established. Anderson v. Douglas,

, 839 Cite as

S.W.2d 196 (1992). When the burden of proving a disputed fact is by clear and convincing

evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was

proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human

Servs.,

,

(1997). We give due regard to the opportunity of the

trial court to judge the credibility of the witnesses.

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.

In order to terminate parental rights, it must be proved that termination is in the

children’s best interest. Smith v. Ark. Dep’t of Health & Human Servs.,

,

(2007). This includes consideration of the likelihood that the child will be

adopted and the potential harm caused by returning custody of the child to the parent.

(b)(3)(A) (Supp. 2013). In considering the potential harm caused by

returning the child to the parent, the court is not required to find that actual harm would

result or to affirmatively identify a potential harm. Welch v. Ark. Dep’t of Human Servs.,

,

. Potential harm must be viewed in a forward-looking manner

and in broad terms. Collins v. Ark. Dep’t of Human Servs.,

. Additionally,

the risk for potential harm is but a factor for the court to consider in its analysis. Carroll v. Ark.

Dep’t of Human Servs.,

,

(2004).

Gwinup concedes that the Arkansas Department of Human Services (DHS) sufficiently

established a statutory ground for termination—the prior involuntary termination of her

parental rights to another child. Her only challenge to the termination is the court’s

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determination that potential harm would befall the child if custody were returned to her.

Thus, the only issue on appeal is whether the trial court’s best-interest finding was supported

by clear and convincing evidence.

In October 2011, DHS opened a protective-services case without court involvement

based on Gwinup’s history with DHS1 and concerns that Gwinup was unable to properly care

for or protect the child. Approximately six months later, DHS removed L.R. from Gwinup’s

custody after L.R. was discovered living in unsanitary conditions and amid reports that

Gwinup was not adequately supervising the child despite being provided resources by DHS.

In August 2012, the court adjudicated L.R. dependent-neglected. The court

specifically found that Gwinup was “incapable of providing a clean, sanitary, and stable living

arrangement that protects the child’s health and safety” and that she was “incapable of

adequately supervising the juvenile.” Gwinup stipulated to the dependency-neglect finding

due to her inability to provide the child with stability.

In June 2013, DHS filed a petition for the termination of Gwinup’s parental rights.

The petition alleged the following statutory grounds for termination: (1) that her parental

rights had previously been involuntarily terminated to another child, and (2) that the child had

been out of Gwinup’s custody for twelve months and Gwinup had failed to correct the

conditions causing removal.

1 In November 2007, the Washington County Circuit Court entered an order terminating Gwinup’s parental rights to another child, M.B., after M.B’s sibling died in a suspicious house fire.

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In October 2013, the trial court entered an amended order terminating Gwinup’s

parental rights, finding that DHS had proved statutory grounds for termination and that

termination was in the best interest of the child. Gwinup appeals the order of termination,

arguing that there was no evidence presented of (1) a current lack of parental capacity to

provide for L.R., (2) an indifference to remedy the cause for removal, or (3) any harm to L.R.

if contact with Gwinup was continued. In essence, Gwinup maintains that she had taken great

strides to make positive and long-lasting changes in her life after L.R. had been removed from

her home and while she was incarcerated. She further contends that she had taken significant

action toward rectifying the issues that would keep her from regaining custody of her

daughter and that she should not be disparaged for her past deficiencies.

Evidence that a parent begins to make improvement as termination becomes imminent

will not outweigh other evidence demonstrating a failure to comply and to remedy the

situation that caused the children to be removed in the first place. Lewis v. Ark. Dep’t of

Human Servs.,

,

(2005). It is true that Gwinup began to make

strides with the case plan toward the very end. However, she failed to comply early on and

failed to prove that she could provide the child with a safe and stable home environment.

Terminating parental rights based solely on past behavior may not be appropriate, but that

behavior cannot be ignored when determining whether return of the child to the parent is in

the child’s best interest. Here, Gwinup had already had her parental rights to one child

involuntarily terminated due to the death of another child—a death that was found to be

caused by Gwinup. There was also a true finding of abuse and neglect regarding the battery

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of a separate child with a closed fist. Despite the recent progress, she has a lengthy history of

drug use, unstable housing and employment, and criminal activity, including incarceration at

the time of the termination hearing. Due to her incarceration, her chance to continue to show

progress in these areas has been interrupted. Upon her release, there would still need to be

substantial time to show that she can continue with that progress and that the child would not

be placed in any danger. This child is young and adoptable. Based on these facts, the trial

court’s finding that it was in the best interest of the child to terminate parental rights was not

clearly erroneous.

Affirmed.

GRUBER and GLOVER, JJ., agree.

Dusti Standridge, for appellant.

Tabitha Baertels McNulty, DHS Office of Policy and Legal Services; and Chrestman Group, PLLC, by: Keith Chrestman, for appellees.

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