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

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.,

,

. The grounds for termination

must be proved by clear and convincing evidence.

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.,

,

. 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.

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.,

,

(1997). The first step

requires proof of one or more of the statutory grounds for termination.

(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. 2

them to the parent.

(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.,

,

(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,

, 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.,

, 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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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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