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ARKANSAS COURT OF APPEALS DIVISION I No. CV-16-212

Opinion Delivered August 24, 2016 TIFFANY DUCKERY APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. ELEVENTH DIVISION [NO. 60JV-14-1608] ARKANSAS DEPARTMENT OF HUMAN SERVICES HONORABLE PATRICIA JAMES, APPELLEE JUDGE

AFFIRMED

CLIFF HOOFMAN, Judge

Appellant Tiffany Duckery appeals from an order of the Pulaski County Circuit Court

terminating her parental rights. On appeal, her sole contention is that the trial court erred in

finding that the termination of her parental rights was in the children’s best interest in light

of the complete lack of credible evidence demonstrating the likelihood of adoptability. We

affirm.

On December 8, 2014, the Arkansas Department of Human Services (DHS) filed a

petition for ex parte emergency custody and dependency-neglect of Y.D., S.M., and P.M.

In the affidavit attached to the petition, DHS stated that a seventy-two-hour hold was placed

over the children on December 3, 2014, due to neglect and parental unfitness. DHS had

initially received a referral after P.M. and appellant had tested positive for cocaine at the time

of P.M.’s birth. Appellant admitted that she had used marijuana a couple of days before giving

birth but denied that she had used cocaine. Although appellant was allowed to take her Cite as

newborn home, the children were removed after DHS received a call from a nurse with Dr.

Patricia Moss’s office who stated that appellant was at the office with the two younger

children and that appellant was delusional and homicidal. The trial court granted the petition

on December 8, 2014, finding that probable cause existed for the removal. Subsequently, the

trial court filed a probable-cause order on December 15, 2014, and the trial court ordered that

appellant may have supervised visitation at DHS contingent upon negative drug screens.

An adjudication hearing was set for February 2, 2015. Appellant stipulated that the

children were dependent-neglected, and the trial court, accepting the stipulation, found by

a preponderance of the evidence that the children were dependent-neglected. At that time,

the goal was set to be reunification. Additionally, appellant was ordered to follow all

recommendations of the drug-and-alcohol assessment. On May 20, 2015, the trial court after

a review hearing changed the goal to adoption, and a permanency-planning

hearing/termination hearing was set for October 12, 2015.

DHS formally filed its petition for termination of parental rights on September 10,

2015. DHS alleged three separate grounds for termination under Arkansas Code Annotated

§ 9-27-341(b)(3)(B) (Repl. 2015): (1) that a parent has abandoned the juveniles; (2) that other

factors or issues arose subsequent to the filing of the original petition for dependency-neglect

that demonstrate that placement of the juveniles in the custody of the parent is contrary to the

juveniles’ 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 or

factors or rehabilitate the parent’s circumstances that prevent the placement of the juveniles

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in the custody of the parent; and (3) that a parent has subjected the juveniles to aggravated

circumstances.

At the termination hearing, the family service worker assigned to the case, Jessica

Warren, testified that the children were all doing well in their foster homes and that there

were not any new medical or behavioral issues since the last court hearing. She explained that

the children were removed after appellant and P.M. had tested positive for cocaine at P.M.’s

birth. She recommended a goal of adoption because appellant failed to complete the services

offered to her. After the children were removed, appellant admitted to Warren that she

would test positive for cocaine on one occasion and, in fact, tested positive for PCP on several

other occasions. Although a drug-and-alcohol assessment recommended that appellant

complete inpatient drug treatment, Warren testified that appellant refused to do so because

appellant did not think that it would help her. Finally, while she admitted that she was not

an adoption specialist, she opined that the children were adoptable because they did not have

any severe medical or behavioral disabilities and because families were more willing to adopt

younger children.

Appellant testified on her own behalf. She admitted that she had used drugs during

the pendency of this case. She additionally admitted that she did not complete all the services

that were recommended, including inpatient drug treatment, because she only “did the

[services] that [she] believe[d] in.” She further testified that she did not attend visits with the

children because she could not handle seeing her children and then not be able to take them

home with her.

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The trial court filed an order terminating parental rights on December 17, 2015,

finding that DHS had proved by clear and convincing evidence all three grounds for

termination as alleged in the petition. The trial court additionally found by clear and

convincing evidence that termination was in the children’s best interest after taking into

consideration the likelihood that they would be adopted and the potential harm if they were

returned to appellant’s custody. Regarding the children’s adoptability, the trial court

specifically stated that

[t]he Department has an appropriate plan for permanent placement for the juveniles. The appropriate plan is adoption. While Ms. Warren said she was not sure if a matching list had been run, the Court finds her testimony about the adoptability of the children to be credible. She has been the family service worker on this case since the case first opened. The court believes Ms. Warren has the general casework experience, and experience regarding these three children specifically, to provide informed testimony about the adoptability of these children. The Court has taken adoptability into consideration in making its findings today.

This timely appeal followed.

A trial court’s order terminating parental rights must be based on findings proved by

clear and convincing evidence.

(b)(3). Clear and convincing

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

conviction as to the allegation sought to be established. Posey v. Ark. Dep’t of Health & Human

Servs.,

,

(2007). On appeal, the appellate court reviews

termination-of-parental-rights cases de novo but will not reverse the trial court’s ruling unless

its findings are clearly erroneous.

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 determining whether a finding is clearly

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erroneous, an appellate court gives due deference to the opportunity of the trial court to judge

the credibility of witnesses.

In order to terminate parental rights, a trial court must find by clear and convincing

evidence that termination is in the best interest of the juvenile, taking into consideration (1)

the likelihood that the juvenile will be adopted if the termination petition is granted; and (2)

the potential harm, specifically addressing the effect on the health and safety of the child,

caused by returning the child to the custody of the parent.

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341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing

of clear and convincing evidence as to one or more of the grounds for termination listed in

section 9-27-341(b)(3)(B). However, only one ground must be proved to support

termination. Reid v. Ark. Dep’t of Human Servs.,

,

.

Appellant does not contest the grounds for termination or that there was potential

harm if the children were returned to her custody. Instead, appellant’s sole contention is that

the trial court erred in finding that the termination of her parental rights was in the children’s

best interest in light of the complete lack of credible evidence demonstrating the likelihood

of adoptability. She argues that the caseworker’s testimony that the children were adoptable

was insufficient because she was not an adoption specialist and was unable to testify whether

a matching list had been run by an adoption specialist to identify what adoptive placements

were available for the children. However, while the likelihood of adoption must be

considered by the trial court, that factor is not required to be established by clear and

convincing evidence. Hamman v. Ark. Dep’t of Human Servs.,

, 435

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S.W.3d 495. A caseworker’s testimony that a child is adoptable is sufficient to support an

adoptability finding.

Additionally, although appellant cites to Grant v. Arkansas Department of Human Services,

,

, in support of her argument, the facts in Grant are

distinguishable from the facts in this case. In Grant, the child in question was autistic, and the

only evidence regarding his adoptability was from the adoption specialist who was of the

opinion the child was adoptable because she believed that all children were adoptable.

Here, the caseworker did not make a blanket statement that all children were adoptable;

instead, she concentrated on the children’s specific circumstances and needs in giving her

opinion that the children were adoptable. See Caldwell v. Ark. Dep’t of Human Servs.,

,

(affirming a trial court’s adoptability finding based on the

caseworker’s testimony that concentrated on the child’s specific circumstances and needs in

giving her opinion). The caseworker in this case specifically testified that there were no

known medical or physical barriers to adoption, that the children’s young ages made them

even more adoptable, and that it was her opinion that these children were, in fact, adoptable.

Given the high degree of deference we give to the trial court in weighing testimony, coupled

with the caseworker’s testimony, we cannot say that the trial court’s finding was clearly

erroneous. Thus, we affirm the trial court’s decision.

Affirmed.

GLADWIN, C.J., and BROWN, J., agree.

Leah Lanford, Ark. Pub. Defender Comm’n, for appellant. Andrew Firth, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

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