Brooke Wilkerson v. Arkansas Department of Human Services and Minor Children

Cite as 2024 Ark. App. 88
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-23-543

Opinion Delivered February 7, 2024

BROOKE WILKERSON
APPELLANT APPEAL FROM THE FRANKLIN
COUNTY CIRCUIT COURT,
V. NORTHERN DISTRICT
[NO. 24OJV-21-30]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILDREN HONORABLE KEN D. COKER, JR.,
APPELLEES JUDGE

AFFIRMED

MIKE MURPHY, Judge

Appellant Brooke Wilkerson appeals the order of the Franklin County Circuit Court

terminating her parental rights to her children, MC1 and MC2. On appeal, she argues that

the court failed to take into consideration the impact of severing the sibling relationship as

a part of its best-interest analysis, and further, there was not sufficient evidence of potential

harm if the children were returned to Wilkerson’s custody. We affirm.

MC1 and MC2 were taken into the custody of the Arkansas Department of Human

Services (DHS) on December 18, 2021, when Wilkerson was arrested and no other family

members could be contacted. The children were ages five and seven at the time of the

removal. DHS was granted ex parte emergency custody, and the court later found that

probable cause existed to continue that custody. Wilkerson later stipulated to a dependency-
neglect finding based on inadequate supervision. After several months of minimal

compliance, the goal of the case was changed to adoption with a concurrent goal of

placement with a fit and willing relative. After the goal was changed, on February 23, 2023,

DHS and the attorney ad litem filed a joint petition to terminate Wilkerson’s parental rights.

A termination hearing was held on April 26, 2023. At that hearing, the DHS

caseworker, Cheryl Warden, testified that she had worked on this case since it opened. She

explained that the children were placed in separate homes because one of them required a

therapeutic placement. Both children are in counseling and doing well in school. Warden

said Wilkerson required redirection on Zoom visits, and they had to do Zoom visits because

Wilkerson’s behavior had previously required that they call the police. Wilkerson was very

aggressive, and when DHS asked her to take an alcohol swab and drug screen, Wilkerson

“chewed it up for a little bit and then spit it on the floor.” Additionally, Wilkerson refused

to take several drug tests, produced some tests that were adulterated, and produced other

tests with “no temp.”

Warden testified that Wilkerson was positive for meth in October 2022 and that

Wilkerson “tried to sabotage every time” DHS made an appointment for her to have

treatment. Wilkerson was offered drug treatment, counseling, parenting classes,

transportation, and visits. Wilkerson would not take a drug test the morning of the

termination hearing. Warden said that she did not think there were any services DHS could

offer that have not already been offered or that would be beneficial to Wilkerson. Wilkerson

never advanced to unsupervised visits with her children. DHS would be concerned if the

2
children were returned to Wilkerson’s custody due to her lack of suitable transportation,

lack of a suitable home, unaddressed drug and alcohol problems, and mental-health

concerns.

When asked about the children’s adoptability, Warden testified that while the

children have some issues, she did not think the issues would prevent them from being

adopted; she thinks the children are adoptable. Two families were interested in adopting the

children.

The court terminated Wilkerson’s parental rights in an order entered May 17, 2023.

On appeal, Wilkerson argues that the circuit court erred in making its best-interest finding

when it failed to consider the effect of the termination on the sibling relationship,

considering that the children were in separate placements. She further argues that there was

insufficient evidence of potential harm if the children were returned to her.

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

Servs., 2018 Ark. App. 333, 552 S.W.3d 443. At least one statutory ground must exist, in

addition to a finding that it is in the child’s best interest to terminate parental rights; these

must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(A),(B)

(Supp. 2023). In making a best-interest determination, the circuit 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. Ware v. Ark. Dep’t of Hum. Servs., 2016

Ark. App. 480, at 6–7, 503 S.W.3d 874, 878. The potential harm to the child is a factor to

be considered, but a specific potential harm does not have to be identified or proved by clear

3
and convincing evidence. Pine v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 781, at 11, 379

S.W.3d 703, 709. The potential-harm analysis is to be conducted in broad terms. Id. It is the

“best interest” finding that must be supported by clear and convincing evidence. Singleton v.

Ark. Dep’t of Hum. Servs., 2015 Ark. App. 455, at 5, 468 S.W.3d 809, 812.

We will not reverse a termination order unless the circuit court’s findings are clearly

erroneous. Fisher v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 39, at 4, 569 S.W.3d 886, 888.

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. Id. Credibility determinations are left to the fact-finder. Kerr v. Ark. Dep’t of Hum.

Servs., 2016 Ark. App. 271, at 6, 493 S.W.3d 342, 346.

On appeal, Wilkerson does not challenge the statutory grounds and instead limits

her argument to the best-interest determination. We will address her points out of order.

To the extent that Wilkerson challenges that her children are not adoptable, the

caseworker testified that they are, even given their specific issues. Two families were

interested in them. A caseworker’s testimony that a child is adoptable is sufficient to support

an adoptability finding. Cole v. Ark. Dep’t of Hum. Servs., 2018 Ark. App 121, 543 S.W.3d

540.

Regarding potential harm, Wilkerson asserts that there was insufficient evidence that

the children would be at risk of harm if returned to her custody. Wilkerson explains that

because she “was never allowed unsupervised visits with the children,” it cannot be known

if her ability to adequately supervise the children was remedied. The evidence for potential

4
harm is viewed in a forward-looking manner and considered in broad terms, but a circuit

court is not required to find that actual harm will result or to affirmatively identify a potential

harm. Bentley v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 374, at 14, 554 S.W.3d 285, 294.

Here, the court specifically found that the children

would be subjected to potential harm because the parent lacks stable and appropriate
housing, lacks stable and sufficient income or employment, has not addressed her
substance abuse problem, has not addressed her mental health issues, and has acted
erratic during visits to the point that the Court has suspended her in-person visitation.

These are all findings supported by the testimony in this record, and this court has

held that failure to provide appropriate housing is contrary to the best interest of children,

see, e.g., Selsor v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 182, at 6, 516 S.W.3d 314, 318

(collecting cases); failure to obtain sufficient employment or income is contrary to the best

interest of children, see, e.g., Simmons v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 233, at 12;

and continued drug use is contrary to the best interest of children, see, e.g., Bolden v. Ark.

Dep’t of Hum. Servs., 2018 Ark. App. 218, at 12, 547 S.W.3d 129, 136. Unresolved mental-

health issues further support a finding of potential harm. Manning v. Ark. Dep’t of Hum. Servs.,

2023 Ark. App. 565, 17. ___ S.W.3d ___, ___. The potential-harm finding was not clearly

erroneous.

We now turn to Wilkerson’s point about the children’s potential separation from

one another by adoption. She contends that the siblings’ relationship should have been

considered as part of the best-interest analysis. She cites Caldwell v. Arkansas Department of

5
Human Services, 2010 Ark. App. 102, and Clark v. Arkansas Department of Human Services,

2016 Ark. App. 286, 493 S.W.3d 782. Neither present meritorious grounds for reversal.

First, we reversed the termination in Caldwell because we held that terminating the

parental rights of only the father would not serve to achieve permanency and that the

termination of the father’s rights endangered the child’s relationship with her paternal

grandmother, which the circuit court found to be the most stable influence on the child.

Nor is Clark applicable: it concerned an appeal of a custody award between two parents—not

a termination of parental rights. The Juvenile Code does not require certainty, let alone a

“guarantee,” that siblings be adoptable as a group. Corley v. Ark. Dep’t of Hum. Servs., 2018

Ark. App. 397, at 9, 556 S.W.3d 538, 544. Evidence of a precise adoptive placement is not

required and neither is evidence that the children be placed in the same foster home before

termination. Rocha v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 454, at 15, 637 S.W.3d 299,

309.

The intent behind the termination-of-parental-rights statute is to provide permanency

in a child’s life when it is not possible to return the child to the family home because it is

contrary to the child’s health, safety, or welfare, and a return to the family home cannot be

accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.

Code Ann. § 9-27-341(a)(3). At the time of the termination hearing, the children had been

out of Wilkerson’s custody for over a year, and Wilkerson had not made significant progress

toward reunification. After a de novo review, we are not left with a definite and firm

conviction that a mistake has been made.

6
Affirmed.

KLAPPENBACH and BARRETT, JJ., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor children.

7