Case Information
*1 reNSAS COURT OF APPEALS DIVISION II
No. CV-16-558
Opinion Delivered OCTOBER 79,2016 STEFANIE BAIR APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT APPELLANT INO.23N-14-554] HONORABLE DAVID M. CLARK, V. JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR AFFIRMED
CHILDREN
APPELLEES
DAVID M. GLO\IER, Judge
Bair appeals from of her parentd rights children, R.B. D.B. She contends 1) trial court erred "in refusing consider argument that a may terminate parental only one parent based on the [court's] misapprehension applicable statutory provision was unconstitutional," 2) trial court finding was the children's best interest terminate her rights where 'We affirm. adoptabiliry was questionable.
The Arkansas Department Human Services (DHS) exercised an emergency hold on the children because hotline call alleging that Brown, children's putative father, had sexually abused R.B. Following hearing, children were adjudicated dependent-neglected order entered February 18, 2015. Custody continued DHS, goal of reunification set concurrent goal adoption. OnJanuary 7, 2016, filed petition rights. Following hearing *2 petition, the court entered March 16, 2016 order terminating the parental
rights both parents. Billy was cleared of sexual-abuse charges a criminal trial, but he was cleared those allegations case. In addition, a major concern that contributed Stefanie's parental rights involved continued relationship throughout Only Stefanie is involved instant appeal.
In terminating parental rights, trial couft must make two findings by clear and convincing evidence: at least one statutory ground must exist, and must be in best interest the child. Hamilton v. Arleansa Dep't oJHuman 9erus.,2016 Ark. App. 420; Ark. Code Ann. $ 9-27-341 (Repl. 2015).In making "best interest" determination, must consider factore: likelihood the child will be adopted the potential harm child custody is returned parent. Hamilton, supra; Ark. Code Ann. $ 9-27-341,. Clear convincing evidence is such degree of proof produces in fact-finder firm conviction regarding the allegation be established. Hamihon, supra. Our review of termination of parental is de novo . Iil. Owinquiry whether court's finding disputed fact proved clear and convincing evidence is clearly erroneous, and we leave fact-finder credibiliry determinations. .Id. A finding clearly erroneous when, although there to suppoft it, we are left definite firm conviction mistake has been made. Shafer u. Arkansas Dep't Human Sents., 201,6 Ark. App.208, 489 S.'W.3d I82.
In terminating rights, court found grounds "subsequent factors" (Ark. Code Ann. $ 9-27-341(bX:XSXvii)(a)) and "aggravated circumstances" (Ark.
Code Ann. $ 9-27-347 (bX3XBXixXa)). With respect to "subsequent factors" ground, termination order provides in pertinent part,
Since this case opened, Stefanie Bair has chosen to remain in a romantic relationship with man who sexually abused her daughter. At times during this case, Stefanie has testified that she did not believe that Billy molested their daughter. At other times, she has testified that she believes her daughter. Stefanie wrote a statement to the Faulkner Counry Sheriffs Office inJuly 2015 that she believed that Billy was a good father and that he was framed committing sexual abuse. Stefanie was found to have lied to the Court in September 2075 about having contact with Billy Brown, who she had visited in excess thirty-two (32) times while he was incarcerated awaiting trial on charges raping their daughter. 'When Billy was released from jail, he and Stefanie immediately moved in together. Stefanie testified at perrnanency planning hearing in December 2075 that she intended to remain in a relationship with Billy. When asked how she could ensure that children would be safe they were living in home with Billy, Stefanie testified that her ' plan was to "keep a good eye" on them. At hearing, Stefanie testified
that she continued to live with Billy and that she would keep the children safe by putting a lock their bedroom door by sleeping in same bed seven year old daughter and five year old son.
There are no additional services Court could have ordered or that DHS could have offered remedy the subsequent issues If Bair in relationship living with Billy Brown, juveniles cannot be returned to Stefanie Bair's custody. Returning juveniles to custody mean returning [R.B.] to the custody of the man who sexually abused her. The Court finds that [R.B.l deserves have life free man who sexually abused her. 'With respect "aggravated circumstances" ground, the order provides pertinent part,
The Court makes a finding that [R.B.] was chronically abused, that she disclosed three different perpetraton sexual abuse at only six years old. The mother father have both testified they believe Phillip Turner, a registered sex offender, molested their daughter while he living their home. The Court further finds [R.8.] sexudly abused her father, Billy Brown; by Phillip Turner, registered sex offender living the home; by [DJ, " teenage cousin. The Court finds that there litde likelihood services family will result in successful reunification, Brown incapable remedying cause of removal because Bair continues be romantic relationship Billy, there are services that could be provided would result successful reunification.
For fint point of appeal, Stefanie contends the trial court refusing to consider argument that court may the of only one parent because court mistakenly believed applicable statutory provision was unconstitutional. While we agree the trial court had basis spontaneously expressing its view Arkansas Code Annotated section g-27-341(cX2XB) was unconstitutional, we disagree that the court's opinion regard provides a basis for reversal this case.
After both sides rested, trial heard arguments Stefanie's counsel concerning why some of alleged grounds for termination did apply Stefanie arguing that the trial court had option of terrninating Billy's parental rights while leaving Stefanie's place. During colloquy between the trial court and counsel, court spontaneously expressed its view Arkansas Code Annotated section 9-27-347 (c)(2XB), which allows termination of only one parent's parental rights, unconstitutional. None parties made such an argument; court just expressed its unsolicited opinion. now argues doing so, "absolutely foreclosed any consideration anything less than the termination Stefanie's parental rights, including possibly placing the children Stefanie's mother, Rebecca Harvey."'We disagree.
\Mhile it unclear why trial court spontaneously expressed opinion about the constitutionality section g-27-341(c)(2XB) when none parties had raised such an issue, abundantly clear court's termination of parental rights was rooted both statutory grounds set out order and supported facts rationale explained therein. The termination order makes no mention of sectiong-27-
4 *5 3a1(c)(2)@), nor trial court's position concerning its constitutionality. It also clear the court's comments from the bench did not factor into final rationale for ordering termination Stefanie's parental rights, and consequently they cannot provide basis for reversal.
For her remaining point appeal, Stefanie contends couft finding it children's best interest to her "where evidence of adoptability was questionable and where there was insufficient potential harm the children if returned custody."'We disagree.
As mentioned previously, determining if child's best interest, consider the potential harm if the child is returned parent's custody and likelihood child being adopted. Within point, does not challenge the trial court's finding ofstatutory grounds for termination, but instead challenges best-interest finding.'We find error.
Regarding adoptability, had before testimony fifty-seven potential families matched children's characteristics, i.e., Caucasian siblings, one who victim of sexual abuse the other having developmental delays; R.B. D.B. were adoptable; children had been well-behaved and helpful since entering foster care; foster mother adopt them henelf not for age lifestyle; that they thrived the foster mother's home and had benefitted therapies and services; had succeeded finding families past children similar R.B. D.B.
As potential harm, initid sexual abuse of R.B. Billy Brown that initiated this case. The trial concerned Stefanie maintained relationship Billy throughout the Her plans protecting the children she and Billy been allowed retain their rights were follows: she would sleep different rooms; the children stay with her; she'would lock bedroom door; she would never leave the children alone. Further, the court specifically found that had been less than honest about her continued relationship Billy after abuse allegations had come to light. A parent's past conduct often provides good indication of what the future may hold. Painter u. Arkansas Dep't Human $erus.,2013 Ark. App. 602. The potential harm was clear.
Affirmed.
GraowIN, CJ., VtnpEN,J., agree.
Tina Bowers Lee , Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant.
Andrew Firth , Office of Chief Counsel, for appellee.
Chrestman Group, PLLC , by: Keith L. Chrestman , attorney ad litem for minor children.