Holloway v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 268

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-31

Opinion Delivered: May 3, 2017
ROBIN HOLLOWAY AND
CHRISTOPHER BRITT
APPELLANTS APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT
V. [NO. 28JV-09-214]

ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILDREN HONORABLE BARBARA
APPELLEES HALSEY, JUDGE
AFFIRMED

RAYMOND R. ABRAMSON, Judge

Robin Holloway and Christopher Britt appeal the Greene County Circuit Court

order terminating their parental rights to their five children, L.B. (6/17/03), R.B.

(4/15/05), M.B. (9/17/06), C.B. (10/3/07), and Z.B. (12/13/08). They argue that the

circuit court erred in finding that it was in the best interest of the children for their parental

rights to be terminated. We affirm.

On April 23, 2014, the Arkansas Department of Human Services (“DHS”) filed a

petition for an ex parte order of emergency protection of L.B., R.B., M.B., C.B., and Z.B.

In the affidavit attached to the petition, DHS stated that it had received multiple hotline

reports concerning Holloway and Britt dating back to 2002, 1 which included allegations of

1
The 2002 reports involved sexual abuse of minor victims by Britt, who was eighteen
years old at the time. The reports were found true.
Cite as 2017 Ark. App. 268

sexual abuse, physical abuse, inadequate supervision, and environmental neglect. DHS

further stated that Britt and Holloway had joint custody of the children and that Holloway

was dating Nathan Warren, a level III sex offender. DHS proposed that Britt should have

custody of the children and that Holloway should have only supervised visitation. On the

same day the petition was filed, the circuit court entered an order granting the petition. On

April 29, 2014, the court found probable cause for the emergency order.

On May 28, 2014, DHS filed a petition for emergency custody and dependency-

neglect, and the circuit court granted the petition that same day. In the affidavit attached to

the petition, DHS alleged that Britt had been unable to meet the children’s needs; that

Holloway had unauthorized visitation with the children; and that the children had been

threatened not to tell the truth to their counselors, teachers, and DHS workers. On June 1,

2014, the court held a probable-cause hearing, and on July 1, 2014, the court entered a

probable-cause order.

On September 9, 2014, the circuit court held a dependency-neglect hearing, and on

February 13, 2015, the court entered an order adjudicating the children dependent-

neglected. On July 1, 2016, DHS filed a petition for termination of Holloway’s and Britt’s

parental rights.

On August 19, 2016, the court held a termination hearing. At the hearing, Britt

testified that he did not believe L.B., R.B., or M.B. were adoptable because of their medical

and aggression issues. Holloway testified that she did not believe her children were adoptable

because of their emotional and behavioral issues.

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Holly Johnson, a Greene County family-service worker, testified on behalf of DHS

and stated that she had been assigned to the case since January 25, 2016. She believed that

the children could be successful in a loving and caring adoptive home but that DHS had

been unable to initiate trial placements. She noted that the children had been placed in

different homes since they had been removed from their parents’ custody, and she further

discussed the children’s behavioral and development problems.

She stated that L.B. is in the eighth grade and that he is a very sweet child but that

he has severe anger outbursts. She explained that during the outbursts, he frequently destroys

items such as his eyeglasses and electronic tablets. She believed L.B. is adoptable but noted

that his current foster home did not want to adopt him. She further noted that he had been

placed in a therapeutic foster home and that he is receiving therapy there. She also stated

that he enjoys playing on a soccer team. On cross-examination, Johnson testified that L.B.

had been moved to multiple foster homes as result of his anger issues and that his anger

issues are a hurdle to adoption.

Johnson testified that R.B. is in the sixth grade and that she is adoptable. She stated

that she is in a group-home placement and that she receives therapy there. She also noted

that she had been participating in extracurricular activities such as horseback riding and that

she is learning patience through caring for the horses. On cross-examination, Johnson

testified that R.B. suffers from ADHD and that she has trouble following instructions but

that she had not received any recent reports of bad behavior. She stated that R.B.’s group-

home parent had verbally expressed interest in adopting her.

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Johnson testified that M.B. is in fourth grade and that she is adoptable. She noted

that over the summer she had traveled with her foster family and had behaved well on the

trips. On cross-examination, she testified that M.B. also has anger outbursts and had tried to

physically harm her foster parent. She explained that M.B. and C.B. had initially been placed

in the same home, but they had to be separated because they had disagreements that resulted

in physical aggression. She noted that M.B.’s current foster parents had verbally expressed

interest in adopting her.

Johnson explained that C.B. has jealousy issues with M.B. and other children but

that she is doing well in her foster home and that she is adoptable. On cross-examination,

she stated that since C.B.’s separation from M.B., C.B.’s behavior had improved, but the

case manager cannot mention M.B. without C.B. becoming agitated. She noted that C.B.

lives in a therapeutic foster placement.

Johnson testified that Z.B. is in second grade and that he is adoptable. She stated that

he works well with others and that he had behaved well on summer trips with his group

home. On cross-examination, Johnson stated that he has emotional and behavioral issues.

She noted that he cries when asked to complete simple tasks and that he frequently removes

his clothing and runs around his home. She noted that he had been living in the same home

for the last six months.

Kandi Tarpley, the Greene County foster-care unit supervisor, testified that based on

her eleven years of experience, the children are a “tough adoption.” She explained that the

adoption process may take time but some families want to raise children with behavior issues

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and special needs. She testified that “there isn’t anything that could bar these kids from being

adopted.”

On cross-examination, Tarpley stated that she had testified about the adoptability of

children on five or six occasions. She stated that she had never testified that a child is not

adoptable. She did “not believe a child can be unadoptable.” Further, when asked whether

“no matter what the problems are with the kid, you would testify under oath that that child

is adoptable,” Tarpley stated, “[Y]es, I would.” She further noted, “[K]ids do age out [of

foster care]. Even those children are adoptable.”

At the conclusion of the hearing, the court found it was in the best interest of the

children to terminate Britt’s and Holloway’s parental rights. The court noted that it had

considered “the adoptability of these children in great detail.” On October 28, 2016, the

court entered a termination order based on three statutory grounds. 2 In the order, the court

found by clear and convincing evidence that it was in the best interest of the children to

terminate Britt’s and Holloway’s parental rights. The court “specifically considered the

likelihood that the juveniles will be adopted if the termination is granted” and found that

“the children are adoptable.” Thereafter, Britt and Holloway filed their notices of appeal.

We review termination-of-parental-rights cases de novo. Brown v. Ark. Dep’t of

Human Servs., 2015 Ark. App. 725, 478 S.W.3d 272. An order terminating parental rights

must be based on a finding by clear and convincing evidence that one of the grounds stated

in the termination statute is satisfied and that the sought-after termination is in the children’s

2
Specifically, the court terminated their parental rights based on the grounds in Ark.
Code Ann. § 9-27-341(b)(3)(B)(i)(a), Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a), and Ark.
Code Ann. § 9-27-341(b)(3)(B)(ix)(a) (Repl. 2015).

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best interest. Id. Clear and convincing evidence is that degree of proof that will produce in

the fact-finder a firm conviction that the allegation has been established. Id. When the

burden of proving a disputed fact is by clear and convincing evidence, we ask whether the

circuit court’s finding on the disputed fact is clearly erroneous. Id. A finding is clearly

erroneous when, although there is evidence to support it, we are left with a definite and

firm conviction that a mistake has been made. Id.

Britt and Holloway do not challenge the statutory grounds for termination. They

contend only that the circuit court’s best-interest finding must be reversed because there

was insufficient evidence concerning the likelihood of adoption. In making a “best-interest”

determination, the trial court is required to consider two factors: (1) the likelihood that the

child will be adopted and (2) the potential of harm to the child if custody is returned to a

parent. Miller v. Ark. Dep’t of Human Servs., 2016 Ark. App. 239, 492 S.W.3d 113. While

the likelihood of adoption must be considered by the circuit court, that factor is not required

to be established by clear and convincing evidence. Caldwell v. Ark. Dep’t of Human Servs.,

2016 Ark. App. 144, 484 S.W.3d 719 (citing Hamman v. Ark. Dep’t of Human Servs., 2014

Ark. App. 295, 435 S.W.3d 495). A caseworker’s testimony that a child is adoptable is

sufficient to support an adoptability finding. Id.

However, this court has reversed a termination order where the only evidence of

adoptability was a caseworker’s opinion that the child was adoptable because “all children

are adoptable.” Grant v. Ark. Dep’t of Human Servs., 2010 Ark. App. 636, at 13, 378 S.W.3d

227, 233. Specifically, in Grant, the child suffered from autism, and the condition was not

considered in determining whether he was adoptable. Id. The record showed that it had

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been impossible to find a foster placement for the child in the same county as the parent,

that his foster parent had no interest in adopting him, and that the caseworker offered only

one email contact regarding a person who might be interested in adopting a child with

autism. Id.

Britt and Holloway assert that the circumstances in this case are similar to Grant.

They argue that the only evidence of adoptability is Johnson’s regurgitated answers of what

the law requires and Tarpley’s belief that all children are adoptable. We disagree. Johnson

testified extensively about the children’s behavioral problems but concluded that she

believed the children were adoptable. She noted that the children had been participating in

therapy and extracurricular activities and that their behavior was improving. See Cobb v.

Ark. Dep’t of Human Servs., 87 Ark. App. 188, 189 S.W.3d 487 (2004) (affirming the trial

court’s best-interest determination where the caseworker testified that the children were

adoptable even though they were older and had issues to work through). Further, as to

Tarpley’s testimony, even though she testified that she believed all children are adoptable,

she considered the children’s behavioral and special needs in this case and stated the children

are adoptable. Accordingly, given both Johnson’s and Tarpley’s testimony, we hold that

there was sufficient evidence on the issue of adoptability.

Affirmed.

HIXSON and MURPHY, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant Robin Holloway.

Mary Goff, Office of Chief Counsel, for appellee.

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

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