....
Throughout the case, the court found that children needed to be separated, yet at no time during the termination hearing was any testimоny introduced regarding the likelihood that J.F. and K.F. could be adopted together-or whether it was in their best interest not to be adopted together, as well as their prospects to be adopted together given J.F.'s issues-despite there being
testimony and documentаry [evidence] that resuming sibling visits would be beneficial to both children. A complete lack of evidence can never be sufficient еvidence of something.... Sibling groups matter, DHS's burden at trial matters.
She asks us to "make good" on our warning in Renfro v. Arkansas Department of Human Services ,
DHS responds that it does not have to prove the likelihood or probability of adoption. "Rather, there must be еvidence presented and the trial court must consider that evidence. That's all. To set the bar higher would unfairly punish children with special needs or developmental disabilities who need permanency-especially if the behavior and development issues аre a direct result of the parent's inattention and unfitness-as in this case." DHS cites McDaniel v. Arkansas Department of Human Services ,
Under Arkаnsas law, to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of thе 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 рarent.
In this case, the circuit court did not have the benefit of the 2017 DHS report on foster care and adoption that Carrie cites in her brief, because it was not entered as evidence into the record. An appellate court does not consider matters outside the record, and it is an appellant's burden to bring up a record sufficient to demonstrate error. Dep't of Career Educ., Div. of Rehab. Servs. v. Means ,
III. Michael Fisher
Michael argues on appeal that DHS produced insufficient evidence of any termination ground and that a termination was not in the children's best interest.
We affirm the termination of Michael's pаrental rights on the subsequent-factors ground, which is a statutory ground that DHS pled and the circuit court found. This ground requires clear and convincing proof that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare аnd that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifferеnce to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
In this case, Robert Hammond, a substance abusе counselor, submitted a letter to the court that stated Michael had completed an assessment in February 2017, almost a year into the case. The result of the assessment was a recommendation of two (12-week) outpatient services to address Michael's psychiatric issues and substance abuse. Michael did not comply with the outpatient recommendation, did not return phone calls or written correspondence and tested positive for methamphetamine. As stated in the facts above, Michael prеtty much failed to follow any court order throughout the entire case. There was other testimony that before February 2017, he had few visits with thе children, he had not addressed substance-abuse issues, had not maintained stable housing, and had not participated in counseling services. During the termination hearing, he testified that he was waiting on disability benefits and that he did not know how long it would be before he could suppоrt his children. The circuit court's decision to terminate his parental rights on the subsequent-factors ground was not clearly erroneous.
As far as best interest, Michael does not challenge the court's adoptability finding as to K.F., but he does as to J.F. Michael's argument about J.F.'s bеst interest is like the argument Carrie made on the lack of adoptability evidence of J.F. We affirm for the same reasons we gave earlier in the opinion. The circuit court heard the evidence of adoptability, the evidence that J.F. and K.F. would likely not be tоgether, the evidence J.F. has significant behavioral and mental-health issues, the evidence of the parents' major drug problems and instability, and weighed the evidence in favor of termination. We cannot say that the circuit court clearly erred in deciding that terminating Michael's rights was in J.F.'s best interest.
Affirmed.
Gruber, C.J., and Virden, J., agree.