Opinion
CV-24-170
11-13-2024
CARINA ALDAPE-ALVARADO AND JOSUE HERNANDEZ APPELLANTS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES
James & Streit, by: Jonathan R. Streit, for separate appellant Josue Hernandez. Demarcus D. Tave, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Dana McClain, attorney ad litem for minor child.
APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-22-448] HONORABLE THOMAS SMITH, JUDGE
James & Streit, by: Jonathan R. Streit, for separate appellant Josue Hernandez.
Demarcus D. Tave, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor child.
STEPHANIE POTTER BARRETT, JUDGE
Appellants, Carina Aldape-Alvarado and Josue Hernadez, bring separate appeals from the Benton County Circuit Court order terminating their parental rights to their daughter, MC1. Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(j) (2021), counsel for each party have filed motions to be relieved as counsel and no-merit briefs asserting that there are no issues of arguable merit to support an appeal. The clerk of this court sent copies of the briefs and the motions to withdraw to both parents, informing them of their right to file pro se points for reversal pursuant to Rule 6-9(j)(3); Carina filed pro se points for reversal. Having examined the record, we are satisfied that there are no issues of arguable merit to support an appeal. We, therefore, affirm the termination order as to both Carina and Josue and grant counsels' motions to be relieved.
On June 23, 2022, the Arkansas Department of Human Services (the Department) received a call from law enforcement because Carina Aldape-Alvarado ("Carina") was being arrested, leaving Carina's children, including MC5, without a caretaker. At that point in time, the Department exercised a seventy-two-hour hold on the children, though MC1 is the only child of those removed of whom Josue is the father and is the only child subject of this appeal. MC1 was born on December 12, 2011, and was ten years old when removed on June 23, 2022.
At the time of the removal, the father, Josue Hernandez, was incarcerated in the Arkansas Division of Correction, having been convicted of possession of methamphetamine and weapon charges on December 13, 2012, as a habitual offender. The circuit court sentenced Josue to 180 months on count one for possession of a firearm by certain person, and on count two, he was sentenced to twenty years for possession of a controlled substance, methamphetamine, with an additional ten years' suspended sentence.
On June 23, 2022, Carina took four minor children to an ex-boyfriend's home for a cookout and party. The minor children with her were Carina's daughters MC2 (age 17) and MC3 (age 14). Two other children were with them who had been entrusted to her for the evening, MC4 (age 14) and MC5 (age 13). Detective Frierson stated MC4 and MC5 are not relatives of Carina; however, she was acting as their caretaker and transported them to this party where they were allowed to drink and take unknown pills. In her interview with family service worker (FSW) Cara Andrade, MC2 stated that at the cookout, everyone, including the minor children, were drinking alcohol. MC2 stated her mother was aware that she and the other minors were drinking and had access to the pills. MC2 stated that an adult male named John was handing out pills that were blue and red and in capsule form. MC2 stated her mother went into the room where MC4 and John were located, and she came out and told them to hurry and come look at what MC4 was doing. She stated that when they went in, they saw MC4 performing oral sex on John. The sex act was videotaped by MC3 and was posted on Snapchat. The video showed Carina enter the room where the sex act was being performed and then leave without taking any action to stop the criminal act. MC3 confirmed what MC2 had told FSW Andrade about the sexual activity of John with MC4. The Department filed its "Petition for Emergency Custody and Dependency-Neglect" on June 27, 2022. The circuit court entered its "Ex Parte Order for Emergency Custody" on the same day. Carina was represented by parent counsel at the first appearance probable-cause hearing, and after that hearing, the court entered an order finding that probable cause existed for the Department to remove MC1 and Carina's other minor children from Carina's custody and to maintain MC1 in foster care pending an adjudication hearing.
At the probable-cause hearing that occurred on June 28, 2022, Josue and Carina appeared by Zoom because both were incarcerated. Both Josue and Carina were represented by counsel at all times during the proceedings. The circuit court found that probable cause existed at the time of MC1's removal and continued to exist, setting an adjudication hearing for August 2, 2022. The circuit court found return to the custody of the parents was contrary to the welfare of the juveniles and it was in the best interest of and necessary to the protection, health, and safety of the juveniles to remain in the care and custody of the Department.
On July 15, 2022, MC1's father, Josue Hernandez, the noncustodial parent, filed a pro se petition seeking placement of MC1 with MC1's paternal grandmother, Santos Flores Hernandez. On July 26, 2022, Santos Flores Hernandez filed an emergency petition to be appointed as temporary/permanent guardian of MC1.
On August 2, 2022, Josue and Carina appeared by Zoom for the adjudication hearing. Josue was found to be the legal father of MC1. The circuit court found MC1 dependent-neglected based on Carina's neglect and parental unfitness. Josue was found to be the nonoffending parent but was deemed unfit due to his custodial status in the Arkansas Division of Correction. The case plan was approved by the circuit court. The order stated each parent was to engage in individual counseling, family counseling, substance-abuse assessment, mental-health assessment, drug screening, employment, housing, transportation, parenting, psychological evaluation, family time, and legal services.
A review hearing was set for November 1, 2022. Josue and Carina appeared by Zoom. The circuit court found the Department had made reasonable efforts to provide services and achieve the goal of the case. The circuit court found Carina and Josue noncompliant with the case plan and the court's orders; and were not moving toward resolving the health and safety issues that caused the removal of MC1 and that prevented the safe return of MC1 to her parents.
The case was reviewed on February 7, 2023. Neither Carina nor Josue appeared for the review hearing. As to MC1, the court found Carina and Josue noncompliant with the case plan or orders of the court. The court found that MC1 shall remain in the custody of the Department. The court found that placement of MC1 with Carina or Josue is contrary to her welfare and that continuation of custody with the Department is in her best interest, necessary to the protection of her health and safety, and the least restrictive alternative. The circuit court found the case plan was moving toward an appropriate permanency plan for MC1. The goal of this case continued to be reunification.
On May 9, 2023, both Josue and Carina appeared for the review hearing via Zoom from their respective prisons. Josue and Carina were again found by the circuit court to be noncompliant with the case plan and orders of the court given his incarceration and are not moving toward resolving the health and safety issues that caused the removal of the MC1, and this prevents the safe return of MC1. The circuit court found that return to the custody of the parents is contrary to MC1's welfare and it is in her best interest and for her protection, health, and safety to remain in the care and custody of the Department.
The permanency-planning hearing was held on June 13, 2023, though Josue did not appear or participate in the hearing. Carina was present via Zoom from prison. The circuit court found the parents were not in compliance with the case plan and the court's orders; and were not moving toward resolving the health and safety issues that caused MC1's removal. This lack of progress prevents the safe return of MC1 to the parents. The goal of the case for MC1 was changed to adoption. On September 7, 2023, the Department filed a "Petition for Termination of Parental Rights."
On November 21, 2023, the circuit court held a hearing on the Department's petition for termination of parental rights. The Department presented the testimony of the FSW, Mykaelia Williams, who testified that Josue has been incarcerated over the entire life of the case and had not made any meaningful progress with the requirements of the case plan. She noted that Josue was sentenced to twenty years in the ADC for possession of methamphetamine and possession of a firearm, which she testified constituted a substantial period of MC1's life. Josue testified and admitted that he was incarcerated on a sentence of twenty years but said he had a parole hearing on January 16, 2024. Josue testified he was incarcerated this time in February 2022 and had not had any contact with MC1 during this incarceration. Josue also admitted that he had been incarcerated for eight of the eleven years of MC1's life.
Williams testified that Carina was serving a six-year sentence, which would also constitute a substantial period of the child's life and there was a no-contact order issued by the sentencing court ordering Carina to have no contact with MC1. She believed that MC1 is adoptable with no barriers or obstacles to prevent adoption. On cross-examination, Williams testified to numerous family members that were evaluated for possible placement options to stave off termination, none of which came to fruition either because of stability issues or lack of contact. Josue testified that his mother or sister should be considered as a less restrictive placement rather than termination of his parental rights, and both were present at the termination hearing. Santos Flores Hernandez, Josue's mother, and Sarai Ortiz appeared at the hearing to seek placement of MC1. At the conclusion of the hearing, the Department stated to the court that Ms. Hernandez had been vetted and was disqualified due to allegations of sexual abuse of the female children by the grandfather. The Department and the circuit court agreed that Sarai should be considered for placement or adoption. The circuit court noted its concern about delays to investigate potential relative placements since this case had been going on for seventeen months, and no one but Ms. Hernandez had come forward to seek placement. The court expressed its concern that permanence was important for the child.
The circuit court granted the Department's petition to terminate the parental rights of Josue and Carina by clear and convincing evidence on three of the grounds as pled by the department: (1) Josue and Carina failed to remedy the conditions that caused removal pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) (Supp. 2023); (2) Josue and Carina had been sentenced in a criminal proceeding for a period of time which would constitute a substantial period of MC1's life pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(viii); and (3) aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) . The circuit court's order terminating parental rights was entered on December 11, 2023. The Department was ordered to investigate the relative placement options for adoption.
Notices of appeal were timely filed by Josue and Carina, and counsel for each filed a no-merit brief. In response to the no merit briefs, Josue and Carina, were notified by the clerk of this court that counsel had filed no-merit briefs, and this court was providing them an opportunity to file a pro se points. Carina filed timely pro se points for appeal.
The right of a natural parent to the custody of his or her child is "one of the highest of natural rights." Mayberry v. Flowers, 347 Ark. 476, 485, 65 S.W.3d 418, 424 (2002) (quoting Olney v. Gordon, 240 Ark. 807, 811, 402 S.W.2d 651, 653 (1966)). Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Johnson v. Ark. Dep't of Hum. Servs., 78 Ark.App. 112, 82 S.W.3d 183 (2002). However, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. J.T. v. Ark. Dep't of Hum. Servs., 329 Ark. 243, 947 S.W.3d 761(1997). A circuit court's order terminating parental rights must be based upon findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3); Ullom v. Ark. Dep't of Hum. Servs., 67 Ark.App. 77, 992 S.W.2d 813 (1999). 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. Ullom, supra. On appeal, the appellate court will not reverse the circuit court's ruling unless its findings are clearly erroneous. Brewer v. Ark. Dep't of Hum. Servs., 71 Ark.App. 364, 43 S.W.3d 196 (2001). 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." Hopkins v. Ark. Dep't of Hum. Servs., 79 Ark.App. 1, 4, 83 S.W.3d 418, 420 (2002). The purpose of terminating a parent's rights to his or her child is to provide permanency in a child's life when return to the family home "cannot be accomplished in a reasonable period of time as viewed from the juvenile's perspective." Ark. Code Ann. § 9-27-341(a)(3). A court may order termination of parental rights if it finds there is an "appropriate permanency placement plan" for the child, Ark. Code Ann. § 9 341(b)(1)(A), and further finds by clear and convincing evidence that termination is in the best interest of the child, taking into consideration the likelihood of adoption and the potential harm to the health and safety of the child that would be caused by returning him or her to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Finally, there must be clear and convincing evidence supporting one or more statutory grounds listed in the Code. Ark. Code Ann. § 9-27-341(b)(3)(B).
Arkansas Supreme Court Rule 6-9(j)(1) allows counsel for an appellant in a termination case to file a no-merit brief and motion to withdraw if, after studying the record and researching the law, counsel determines that the appellant has no meritorious basis for appeal. In the brief, counsel must include an argument section that lists all circuit court rulings that are adverse to the appellant on all objections, motions, and requests made by the party at the hearing from which the appeal arose and an explanation why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 6-9(j)(1)(A). In evaluating a no-merit brief, we determine whether the appeal is wholly frivolous or whether there are any issues of arguable merit for appeal. Linker-Flores, supra; Cullum v. Ark. Dep't of Hum. Servs., 2022 Ark.App. 34.
I. The Father
Josue's counsel correctly asserts that there can be no meritorious challenge to the sufficiency of the evidence supporting the termination of Josue's parental rights. A circuit court may terminate parental rights if the court finds by clear and convincing evidence that termination is in the child's best interest, considering the likelihood that the child will be adopted and the potential harm the child would suffer if returned to the parent's custody; and finds by clear and convincing evidence that at least one statutory ground for termination exists. Fields v. Ark. Dep't of Hum. Servs., 104 Ark.App. 37, 43, 289 S.W.3d 134, 138 (2008). In the instant case, the circuit court found three grounds pled by the Department for termination existed: (1) that MC1 had been out of the home for a period of twelve months and the conditions that led to the removal had not been remedied; (2) that the parents would be in custody for period of time that constitutes a substantial period of MC1's life; and (3) aggravated circumstances.
Although the circuit court found three statutory grounds for termination, only one ground is necessary to support the termination. Campbell v. Ark. Dep't of Hum. Servs., 2017 Ark.App. 82. Because there is sufficient evidence in conjunction with one specific ground on which Josue's parental rights were terminated, only this ground will be discussed. See Draper v. Ark. Dep't of Hum. Servs., 2012 Ark.App. 112, 389 S.W.3d 58. Josue's own testimony supports the statutory ground for termination that he, as a parent, would be incarcerated for period of time that constitutes a substantial period of MC1's life. Undoubtedly, the twenty-year sentence that Josue was serving in the Arkansas Division of Correction constitutes a substantial period of MC's life, sufficiently meeting the ground sought and secured by the Department as a ground for termination. Fraser v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 395, 557 S.W.3d 886. While Josue testified that he had a parole hearing scheduled for January 16, 2024, it is the prison sentence itself rather than a potential release date that is the measure in meeting this statutory requirement. Brumley v. Ark. Dep't of Hum. Servs., 2015 Ark. 356. Josue, as the noncustodial parent, by his own admission, had not seen or spoken to MC1 for the past two years and had been incarcerated for eight of her eleven years of life. Moreover, Josue did not present any evidence that he will be prepared to properly care for her if he is released in January 2024. The need for permanency overrides a parent's request for additional time to improve circumstances, and courts will not enforce parental rights to the detriment of the well-being of the child. McElwee v. Ark. Dep't of Hum. Servs., 2016 Ark.App. 214, at 7, 489 S.W.3d 704, 708. We find this ground supports termination of Josue's parental rights to MC1, and any argument to the contrary would be without merit.
As to the best-interest finding, Josue's counsel argues that there was sufficient evidence to support the court's finding that termination was in the best interest of the child. In determining the best interest of the juvenile, a circuit court must take into consideration (1) the likelihood that the child 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. Ark. Code Ann. § 9-27-341(b)(3)(A); Myers v. Ark. Dep't of Hum. Servs., 2011 Ark. 182, 380 S.W.3d 906. In considering potential harm caused by returning the child to the parent, the circuit court is not required to find that actual harm would result or affirmatively identify a potential harm. Welch v. Ark. Dep't of Hum. Servs., 2010 Ark.App. 798, 378 S.W.3d 290. Here, the court considered both statutory factors in light of the overall evidence, finding that termination was in MC1's best interest. Counsel contends that there are no issues of arguable merit for reversal in challenging this best-interest finding. We agree with counsel's assessment and conclude that the evidence was sufficient to support the circuit court's best-interest analysis.
Regarding adoptability, counsel has also adequately explained why there is sufficient evidence to support the court's best-interest finding. The circuit court heard testimony from FSW Mykaelia Williams that MC1 is adoptable. Williams based her opinion on the facts that MC1 is a good kid, she is thriving in her foster placement, and she has a lot of spirit. Williams also testified there are no behavioral concerns, and MC1 has no physical or mental challenges that would be obstacles to her adoption. We have frequently held that the testimony of a caseworker that the juvenile is adoptable is sufficient to support a circuit court's adoptability findings. Madison v. Ark. Dep't Hum. Servs., 2013 Ark.App. 368, 428 S.W.3d 555; Westbrook v. Ark. Dep't Hum. Servs., 2019 Ark.App. 352, 584 S.W.3d 258. We therefore agree with counsel that there could be no meritorious challenge on this point.
As to potential harm, Josue is a habitual criminal who is currently serving a sentence of twenty years for possession of methamphetamine and simultaneous possession of a firearm. Potential harm must be viewed in a forward-looking manner and in broad terms. Riggs v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 185, 575 S.W.3d 129. The evidence shows Josue is a habitual offender who is imprisoned because of his possession of drugs and firearms. Josue was incarcerated before, during and at the time of the termination hearing. We have held that a court may consider past behavior as a predictor of potential harm should the child be returned to the parent's care and custody. See Furnish v. Ark. Dep't of Hum. Servs., 2017 Ark.App. 511, at 14, 529 S.W.3d 684, 692. Past behavior provides a window into his character as a father and his future actions that call into question whether he would be capable of living a drug-free life once released from prison. His possession of methamphetamine and simultaneous possession of a handgun presents and unacceptable risk for the child should she be returned to his custody, which indicates she would be placed in a potentially dangerous and harmful environment. We have held that continued drug abuse and instability demonstrate potential harm sufficient to support a best-interest finding in a termination-of-parental-rights case. See Beaird v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 415, 585 S.W.3d 172. In addition, MC1 is a virtual stranger to Josue who has been incarcerated for eight of the eleven years of her life. By his own admission, he has not seen or spoken to MC1 in the past two years, although he did write her on one occasion and mailed the letter to the Department for her. Josue has not entered any drug rehabilitation program, parenting class, or other program that would prepare him to be able to care for the child should he be released on parole in January 2024. Thus, the circuit court's finding that MC1 would suffer potential harm if returned to Josue is not clearly erroneous. The circuit court's termination order is affirmed as to Josue.
In accordance with Ark. Sup. Ct. R. 6-9(i)(1)(A), Josue's counsel reviewed the record for all adverse rulings to Josue made by the circuit court on all objections, motions, and requests made by Josue at the termination hearing. First, the Department objected to a question asked by Josue's counsel concerning whether referrals were made, but the services were not actually offered because he was incarcerated. The objection was based on Josue's testimony that the services were offered, but he was in prison. No ruling was made by the court on the objection. Objections and questions left unresolved are waived and may not be relied upon on appeal. Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990). In the absence of findings of fact or rulings on issues raised below, the argument is not preserved for appeal. Kulbeth v. Purdom, 305 Ark. 19, 805 S.W.2d 622 (1991). However, counsel was able to obtain the testimony that Josue sought, which was that no services had been provided to him by the Department in prison so there was no prejudice to him. Josue was not prejudiced even if the court had ruled on the objection since his point was adequately explained when the question was rephrased by counsel.
Second, Josue requested that the circuit court afford him more time to see whether he would be granted parole on January 16, 2024. Josue was sentenced to twenty years in prison as a habitual criminal and has served only two years of that sentence with no guarantee as to when he would be released. It is the prison sentence itself, not the potential release date, that determines whether this statutory ground is satisfied. Brumley, 2015 Ark. 356. A child's need for permanency and stability may override a parent's request for more time to improve the parent's circumstances. Rylie v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 366, 554 S.W.3d 275. MC1 would be over eighteen years old when Josue's prison sentence is completed. Here, MC1's need for permanency outweighs Josue's request for additional time as discussed by the court in its ruling. Even if paroled, Josue's lack of any substantial parent child relationship with MC1, his drug abuse, and his criminal behavior would require a lengthy period of time to complete services to overcome his deficiencies, which would leave MC1 in limbo for an extended period of time without permanency.
The final adverse ruling came when Josue asked the court to consider a less restrictive temporary placement for MC1 with his sister, Sarai Ortiz, or other relatives. In overruling the request, the circuit court stated, "So we'll still look at these homes, but the delay of permanency for the child I don't find is in the child's best interests, when this case has been ongoing a long time, and every relative involved in this case knew that the mother and the father were incarcerated the whole time. That's kind of concerning. However, we will look at the family members." We have maintained and affirmed the termination of parental rights, declining to extend the preference for relatives when a relative was aware of the status of the children in foster care since the inception of the case yet refrained to come forward prior to the termination hearing. Dominguez v. Ark. Dep't of Hum. Servs., 2020 Ark.App. 2, 592 S.W.3d 723. However, there was no prejudice to Josue as the court and the Department agreed that his relatives, including Sarai Ortiz, would be considered for adoption, and they should fill out the necessary paperwork to be considered.
II. The Mother
Counsel for Carina also filed a no-merit brief asserting that there are no meritorious grounds for appeal. The circuit court found that the Department had proved three statutory grounds for termination of Carina's parental rights by clear and convincing evidence. However, only one statutory ground is necessary for termination of parental rights. Cullum, 2022 Ark.App. 34. The court found both parents are currently incarcerated for a period of time that is a substantial period of MC1's life. Ark. Code Ann. § 9-27-341(b)(3)(B)(viii). Termination of parental rights is warranted if the parent is sentenced to a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life. Id. It is the prison sentence itself, not the potential release date, that determines whether this statutory ground is satisfied. Brumley, 2015 Ark. 356. Here, Carina was sentenced to six years' imprisonment. This is a substantial period of time for a child who was eleven years old. MC1 would be seventeen years old when Carina's prison sentence is completed. Viewed from MC1's perspective, termination of parental rights was in her best interest so that she could achieve permanency and not have to wait in limbo for possible reunification with Carina at some unknown time in the future. In addition, the sentencing court found she was required to register as a sex offender and have no contact with minors. The need for permanency overrides a parent's request for additional time to improve circumstances, and courts will not enforce parental rights to the detriment of the well-being of the child. McElwee, 2016 Ark.App. 214, at 7, 489 S.W.3d at 708. Accordingly, we affirm this ground for termination.
In addition to finding the existence of at least one statutory ground in order to terminate parental rights, a court must also find that termination of parental rights is in the child's best interest, taking into consideration two statutory factors: (1) the likelihood of adoption if parental rights are terminated and (2) the potential harm caused by continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Here, the court considered both statutory factors in light of the overall evidence, finding that termination was in MC1's best interest. Carina's counsel contends that there are no issues of arguable merit for reversal in challenging this best-interest finding.
Counsel has adequately explained why there is sufficient evidence to support the court's best-interest finding. Carina's former caseworker, Mykaelia Williams, testified that MC1 is adoptable. Williams based her opinion on her belief MC1 is a good kid, she is thriving in her foster placement, and she has a lot of spirit. Williams also testified there are no behavioral concerns, and MC1 has no physical or mental challenges that would be obstacles to her adoption. Although there is some evidence of memory issues, Ms. Williams testified that this would not be an impediment to adoption. However, a caseworker's testimony that children are adoptable is sufficient to support an adoptability finding. Madison, 2013 Ark.App. 368, 428 S.W.3d 555 (citing Cobbs v. Ark. Dep't of Hum. Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004)). We therefore agree with counsel that there could be no meritorious challenge on this point.
As to potential harm, the circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Ross v. Ark. Dep't of Hum. Servs., 2017 Ark.App. 503, 529 S.W.3d 692. Potential harm must be viewed in broad terms, and "potential" necessarily means that the court is required to look to future possibilities. Id. Here, Carina was convicted of fourth-degree sexual assault and endangering the welfare of a minor and first-degree sexual assault for her participation and/or complacency of a sexual assault of a child that took place against minors in her charge. Carina was ordered to register as a sex offender by the court that sentenced her to prison and to have no contact with minors. In determining potential harm, the circuit court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Harbin v. Ark. Dep't of Hum. Servs., 2014 Ark.App. 715, 451 S.W.3d 231. It is also clear from her pro se points that Carina intends to reunite with Josue, who is a habitual criminal with charges of possession of methamphetamine and possession of a firearm by a convicted felon, which would constitute an unreasonable risk to MC1 if Josue were to continue his criminal behavior using dangerous drugs and possessing a gun. This leaves in question her decision-making ability as well as her ability to protect her children, specifically MC1, who is female. Hamman v. Ark. Dep.t of Hum. Servs., 2014 Ark.App. 295, at 10, 435 S.W.3d 495, 502. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Id. Under this set of facts, the circuit court was presented sufficient evidence of potential harm, and the same facts that support the finding that the parent's lengthy incarceration would support the court's potential-harm finding.
In accordance with Ark. Sup. Ct. R. 6-9(i)(1)(A), counsel has reviewed the record for all adverse rulings to Carina made by the circuit court on all objections, motions, and requests made by Carina at the termination hearing. There were two.
First, during Carina's cross-examination of Williams, she asked about Williams's earlier testimony in which she stated that the Department had offered services but that none had actually been provided due to incarceration. Carina, however, characterized that testimony as referrals made, but no services offered. This drew an objection by the Department to the form of the question because it misquoted Williams's prior testimony. The court did not rule on the objection but stated, "All right. Just rephrase it there." Where an appellant failed to obtain a specific ruling below, we do not consider that point on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001). Carina rephrased the question and was successful in eliciting the information she was seeking that she was offered referrals but had not been provided services by the Department while she was in jail or in prison. Because there was no prejudice to Carina, there is no reversible error in the manner in which the court handled the objection. See Olivares v. Ark. Dep't of Hum. Servs., 2013 Ark.App. 94.
Finally, at the end of the hearing, during closing arguments, Carina asked the court to consider a less restrictive alternative to termination, with that alternative being placement with a family member. While the court specifically said that it was "overruling" the argument, and gave its reasoning, the argument was not preserved for appellate review because Carina's failure to appeal the permanency-planning order constituted a waiver of the argument. This court has repeatedly held that the failure to appeal the circuit court's permanency-planning order that forecloses a goal of relative placement constitutes a waiver of a subsequent argument that termination of parental rights was not in the best interest of child because a less restrictive alternative to termination existed. Coulter v. Ark. Dep't of Hum. Servs., 2021 Ark.App. 398. Further, Carina was not prejudiced since the circuit court ordered the department to consider all relatives as adoption placements.
Carina filed pro se points for reversal requesting that temporary custody of MC1 should be with her daughter Michelle Aldape or Josue's sister Sarai Ortiz; that she should have permission to have contact with her child; and that she and Josue will soon be out of prison and should have the right to raise their daughter.
Carina's pro se points do not argue for a reversal; they instead generally ask the circuit court to grant temporary custody of MC1 to Josue's sister, Sarai Ortiz, or to her daughter, Michelle Aldape, so that she and Josue could raise their child on their release from prison. The Department and the attorney ad litem argue this request is merely asking this court to reweigh the evidence. But for the circuit court to weigh the evidence differently than Carina wanted is not reversible error. Posey v. Ark. Dep't of Health &Hum. Servs., 370 Ark. 500, 509, 262 S.W.3d 159, 166-67 (2007). Furthermore, Carina shows no prejudice since the Department and court agreed to consider both named relatives for an adoptive placement of MC1.
Having carefully examined the records, the no-merit briefs, and Carina's pro se points for reversal, we hold that Josue's and Carina's counsel have complied with the requirements for a no-merit termination-of-parental-rights appeal and that the appeals are wholly without merit. We therefore affirm the termination of Josue's and Carina's parental rights and grant counsels' motions to be relieved.
Affirmed; motion to be relieved granted.
GRUBER and MURPHY, JJ., agree.