Cite as

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.07.26 10:54:25 -05'00' DIVISION II Adobe Acrobat version: No. CV-19-343 2022.001.20169 Opinion Delivered: September 25, 2019 ANTWAN DAVIDSON APPELLANT APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT V. [NO. 52JV-18-89]

ARKANSAS DEPARTMENT OF HONORABLE DAVID W. TALLEY, HUMAN SERVICES AND MINOR JR., JUDGE CHILD APPELLEES AFFIRMED

RAYMOND R. ABRAMSON, Judge

Antwan Davidson’s parental rights to his child, M.E., were terminated by the

Ouachita County Circuit Court on January 18, 2019. Davidson now appeals the

termination, challenging the sufficiency of the evidence. We affirm.

M.E. was five years old when she was removed from the legal and physical custody

of Davidson due to allegations of severe malnourishment. The circuit court entered an

emergency order finding that M.E. was currently hospitalized due to extremely high levels

of sodium, severe dehydration, and malnourishment. Prior to the probable-cause hearing,

the Arkansas Department of Human Services (DHS) filed a petition for termination of

parental rights alleging several grounds for termination under Arkansas Code Annotated

section 9-27-341(b)(3)(B) (Supp. 2017). The circuit court found probable cause, and at the

subsequent adjudication hearing, M.E. was adjudicated dependent-neglected for many

reasons, including that her life was endangered. At the termination hearing on January 2, 2019, the DHS caseworker, Pamela Ward,

testified that she could not say that Davidson would provide the supervision necessary to

protect M.E. from potential danger or harm and that DHS could not say that Davidson is

willing and able to meet M.E.’s needs for food, clothing, shelter, and medical care. Because

he had a criminal proceeding pending, Davidson chose to invoke his Fifth Amendment

rights and did not testify at the termination hearing.

Without objection, DHS introduced the transcript and exhibits from the August 15,

2018 adjudication hearing at the termination hearing. Dr. Rachel Clingenpeel, an assistant

professor of pediatrics at the University of Arkansas for Medical Sciences (UAMS) and the

associate director of the Team for Children at Risk at Arkansas Children’s Hospital

(Children’s), testified as an expert witness in child-abuse pediatrics at the adjudication

hearing. Dr. Clingenpeel indicated that M.E. was critically ill, and her condition was life-

threatening. M.E. was severely malnourished. She was dehydrated. She had severe

electrolyte abnormalities, including hypernatremia, which is an elevated level of sodium in

the blood. She was unable to stand without support. She was uncomfortable with any

movement. During the two weeks M.E. was a patient at Children’s, she gained roughly

nine pounds. 1

Following the termination hearing, the circuit court terminated Davidson’s parental

rights as to all alleged grounds, including that M.E.’s life was in danger. The circuit court

also found that termination of Davidson’s parental rights was in M.E.’s best interest. This

timely appeal is now properly before this court.

1 When five-year-old M.E. was removed from Davidson’s home, she weighed only twenty-nine pounds.

2 Termination of parental rights is a two-step process requiring a determination that

the parent is unfit and that termination is in the best interest of the children. Griffin v. Ark.

Dep’t of Human Servs.,

. The first step requires proof of one or more

statutory grounds for termination; the second step, the best-interest analysis, includes

consideration of the likelihood that the juveniles will be adopted and of the potential harm

caused by returning custody to the parent.

Each of these requires proof by clear and

convincing evidence, which is the degree of proof that will produce in the finder of fact a

firm conviction regarding the allegation sought to be established.

We review termination-of-parental-rights cases de novo, but we will not reverse the

circuit court’s ruling unless its findings are clearly erroneous. Gonzalez 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.

In determining

whether a finding is clearly erroneous, we have noted that in matters involving the welfare

of young children, we will give great weight to the circuit court’s personal observations.

In determining whether termination is in the best interest of the juvenile, the circuit

court must consider the likelihood that the juvenile will be adopted and the potential harm

that would be caused by returning the juvenile to the custody of the parent.

(b)(3)(A)(i) & (ii); Chaffin v. Ark. Dep’t of Human Servs.,

,

. Adoptability and potential harm, however, are merely two factors to

be considered and need not be established by clear and convincing evidence. Chaffin,

,

. The evidence presented on potential harm must also be

viewed in a forward-looking manner and considered in broad terms, but a circuit court is

3 not required to find that actual harm will result or to affirmatively identify a potential harm.

Here, Davidson does not challenge the statutory grounds found by the circuit court

to terminate his parental rights; therefore, Davidson abandons any challenge to those

findings on appeal. See, e.g., Byrd v. Ark. Dep’t of Human Servs.,

,

; Benedict v. Ark. Dep’t of Human Servs.,

,

, 316–17 (2006). DHS argues that this is significant because the undisputed

grounds also support the circuit court’s best-interest finding by demonstrating that M.E.

cannot be safely placed with Davidson and that she would be subjected to potential harm if

placed in his custody. See Miller v. Ark. Dep’t of Human Servs.,

,

. The same evidence that supports the arguments that Davidson abandons

on appeal also supports the potential-harm prong of the circuit court’s best-interest finding.

Nonetheless, we note that the circuit court’s finding that Davidson chronically

abused M.E. and subjected her to extreme, repeated cruelty supported the court’s best-

interest finding as did the court’s finding that Davidson’s actions toward M.E. constituted

attempted murder or manslaughter and felony battery. The circuit court’s finding that there

was little likelihood that services to Davidson would result in successful reunification also

supported the best-interest finding. None of Davidson’s arguments regarding potential harm

compel reversal.

As required by the Juvenile Code, a best-interest finding must include consideration

of not only potential harm but also the likelihood of adoption. See

-

341(b)(3)(A)(i) & (ii). However, adoptability is not an essential element of proof. McNeer v.

4 Ark. Dep’t of Human Servs.,

,

. It is only a

factor that must be considered by the circuit court in determining the best interest of the

child.

“It is the overall evidence, rather than proof of each factor, that must demonstrate

that TPR is in the child’s best interest.” Cox v. Ark. Dep’t of Human Servs.,

,

. Additionally, DHS is not required to prove adoptability by

clear and convincing evidence. Reed v. Ark. Dep’t of Human Servs.,

,

, 738–39. The circuit court can consider the issue of adoptability and

conclude that the juvenile is not adoptable but still determine that termination is in the

juvenile’s best interest. See McDaniel v. Ark. Dep’t of Human Servs.,

, at

5 (holding that even if the child was unlikely to be adopted, it was still in his best interest

to terminate the parent’s rights).

In the instant case, it is important to note that while DHS presented sufficient

testimony about the lack of known barriers to M.E.’s adoptability, it also made its intention

clear that it was not seeking to clear M.E. for adoption at that time. DHS was not seeking

to terminate the parental rights of M.E.’s mother––who is not a party to this appeal––at the

January 2, 2019 termination hearing. As such, M.E.’s mother’s parental rights were still

intact, and any action in pursuit of adoption was, at the time of Davidson’s termination

hearing, premature.

Still, the circuit court found that “the level of abuse and neglect . . . Davidson

subjected [M.E.] to create[d] a threat of harm such that warrant[ed] terminating his parental

rights without freeing the child for adoption.” By making this finding, the circuit court

ensured the satisfaction of its duty to consider adoptability in light of M.E.’s overall best

interest. See McNeer,

, at 7,

(“[W]e have held that

5 consideration of this factor requires evidence, or at least some finding by the circuit court

that other aspects of the best-interest analysis so favor termination that the absence of proof

on adoptability makes no legal difference.”). Given the evidence as recounted above, there

were serious and obvious concerns about the danger Davidson posed to his child and his

indifference to protecting and caring for her and meeting her physical and developmental

needs; thus, in this case, the adoptability issue made no legal difference. See McKinney v.

Ark. Dep’t of Human Servs.,

, at 7,

.

We cannot say that the circuit court’s best-interest finding against Davidson was

clearly erroneous; accordingly, we affirm. See Knight v. Ark. Dep’t of Human Servs.,

,

.

Affirmed.

GLADWIN and WHITEAKER, JJ., agree.

Dusti Standridge, for appellant.

Callie Corbyn, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

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