Kerri Younger and Christopher Womack v. Arkansas Department of Human Services and Minor Children

Cite as 2022 Ark. App. 138
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-21-510

KERRI YOUNGER AND Opinion Delivered March 30, 2022
CHRISTOPHER WOMACK
APPELLANTS APPEAL FROM THE YELL
COUNTY CIRCUIT COURT,
NORTHERN DISTRICT
V. [NO. 75NJV-20-12]

ARKANSAS DEPARTMENT OF HONORABLE TERRY M. SULLIVAN,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES
AFFIRMED

BART F. VIRDEN, Judge

The Yell County Circuit Court terminated the parental rights of appellants Kerri

Younger and Christopher Womack to their three children, C.W.1 (born in 2009) and twins,

C.W.2 and C.W.3 (born in 2011). The parents have filed separate appeals challenging the

sufficiency of the evidence supporting grounds for termination. Womack also argues that

the trial court erred in determining that termination of his rights is in his children’s best

interest. We affirm the trial court’s decision as to both parents.

I. Background

The Arkansas Department of Human Services (DHS) removed C.W.1, C.W.2, and

C.W.3 from Younger’s custody on May 20, 2020. In an affidavit attached to the petition for
emergency custody, a DHS family-service worker (FSW) attested that on May 4, someone

had reported to the hotline that the children had seen Younger chopping up a white powdery

substance with a credit card and ingesting it with a straw. The affidavit also indicated that

DHS has been involved with the family since 2016 and that Younger has a history of drug

charges for which she is on probation. The children were interviewed at the Children’s

Advocacy Center in Benton County, and concern was expressed about “the amount of drug

information these children had.” The FSW eventually reached Younger at her parents’

home. She denied the allegations of drug use and agreed to a drug screen but could not

produce a sample, saying that she has kidney disease. The FSW was contacted by Younger’s

family members, who were said to be fearful about the children’s safety due to Younger’s

drug use. Womack was identified as the putative father. At the time of the removal, Womack

was in a drug-rehabilitation program and living with his sister.

Younger was instructed to comply with standard welfare orders. The children were

adjudicated dependent-neglected on July 24, 2020, due to (1) parental unfitness as a result

of the parents’ drug use, which affected their ability to supervise, care for, and protect the

children; and (2) environmental neglect based on the parents’ failure to provide a safe and

appropriate home for the children. The trial court ordered Younger and Womack to follow

the case plan and court orders; cooperate with DHS and keep DHS informed; watch “The

Clock is Ticking” video and complete parenting classes; obtain and maintain stable housing

and employment; remain drug-free and submit to random drug screens; and, if requested by

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DHS, submit to a drug-and-alcohol assessment and a psychological evaluation and attend

AA/NA meetings.

The case was reviewed in November 2020. The trial court found that Younger and

Womack were “in total noncompliance” with the case plan and court orders and that they

were also homeless and unemployed. Among other things, the trial court ordered that the

parents would be given only five minutes to log on to attend visitation with their children

via Zoom and that they were to submit to a drug screen following the review hearing.

The case was reviewed again in February 2021. The trial court kept the goal as

reunification but added a concurrent goal of adoption following termination of parental

rights because of the parents’ lack of progress. The trial court found that neither parent had

complied with the case plan and court orders, including that they obtain stable housing and

income, submit to random drug screens and hair-follicle testing, and stay after the previous

hearing to be drug tested. Younger and Womack had submitted to a psychological

evaluation, but they continually refused to watch “The Clock is Ticking” video and had not

completed all twelve hours of parenting classes. The trial court noted that Younger had

missed twenty-eight Zoom visits with the children, nineteen of which were “no-shows,” and

had been late to an additional seven visits. Womack had missed nineteen Zoom visits with

the children, seventeen of which were “no-shows,” and had been late to an additional seven

visits. The trial court further found that both parents were then incarcerated in Benton

County on, among other charges, possession-of-drug-paraphernalia and theft-by-receiving

charges and that both parents were already on probation in Oklahoma stemming from drug

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offenses in 2017. Womack had additional driving-related charges pending in Benton County

and had active warrants in Perry and Franklin Counties. Younger was on probation in Pope

County from drug charges in 2018. Both parents had legal issues pending.

In May 2021, DHS filed a petition to terminate Younger’s and Womack’s parental

rights to all three children on five grounds under Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp.

2021): (i)(a) & (b) (one-year failure to remedy after removal from custodial and noncustodial

parent); (ii)(a) (willful failure to provide significant material support and to maintain

meaningful contact); (vii) (subsequent factors or issues); (viii) (sentenced in a criminal

proceeding); and (ix)(a)(3)(A) & (B)(i) (aggravated circumstances—little likelihood that

services will result in successful reunification).

In a permanency-planning order entered in June 2021, the trial court changed the

goal of the case from reunification to adoption following termination of parental rights. The

trial court found that the parents had not complied with the case plan and court orders, did

not have a stable home, had active warrants, and had felony charges filed against them since

the last hearing. In addition, Womack had tested positive for methamphetamine on a hair-

follicle test in May. The trial court also noted that “as shown by their testimony today, they

do not see a problem with their actions.”

A termination hearing was held in July 2021. The trial court heard testimony from

both parents, along with FSW Kiley Burge. Following the hearing, the trial court terminated

Younger’s and Womack’s parental rights to the children on at least three grounds, including

one-year failure to remedy, subsequent factors or issues, and aggravated circumstances. The

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trial court found that Burge had offered credible testimony that the children are highly

adoptable due to their personalities, ages, and good physical health. The trial court further

found that the children would be at risk of potential harm if returned to the parents due to

their failure to comply with the case plan, their lack of any stability, and their continuous

drug use and criminal activities.

II. Standard of Review

Pursuant to Ark. Code Ann. § 9-27-341(b)(3), an order forever terminating parental

rights shall be based on clear and convincing evidence of one or more grounds. Ark. Code

Ann. § 9-27-341(b)(3)(B). Proof of only one statutory ground is sufficient to terminate

parental rights. Burks v. Ark. Dep’t of Human Servs., 2021 Ark. App. 309, 634 S.W.3d 527.

The trial court must also find by clear and convincing evidence that termination is in the

best interest of the child, including consideration of the likelihood that the child will be

adopted if the termination petition is granted and 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).

On appeal, termination-of-parental-rights cases are reviewed de novo. Burks, supra.

Grounds for termination must be proved by clear and convincing evidence, which is that

degree of proof that will produce in the finder of fact a firm conviction of the allegation

sought to be established. Id. The appellate inquiry is whether the trial court’s finding that

the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A

finding is clearly erroneous when, although there is evidence to support it, the reviewing

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court on the entire evidence is left with a definite and firm conviction that a mistake has

been made. Bridges v. Ark. Dep’t of Human Servs., 2019 Ark. App. 50, 571 S.W.3d 506. In

resolving the clearly erroneous question, we give due regard to the opportunity of the trial

court to judge the credibility of witnesses. Id. We must also defer to the superior position of

the trial court to weigh the credibility of the witnesses. Id. The trial court is in a far superior

position to observe the parties before it. Id.

In deciding whether to terminate parental rights, the trial court has a duty to look at

the entire picture to determine how that parent has discharged his or her duties as a parent.

Scott v. Ark. Dep’t of Human Servs., 2018 Ark. App. 347, 552 S.W.3d 463. Even full

compliance with the case plan is not determinative; the issue is whether the parent has

become a stable, safe parent able to care for his or her child. Shaffer v. Ark. Dep’t of Human

Servs., 2016 Ark. App. 208, 489 S.W.3d 182. Termination of parental rights is an extreme

remedy and in derogation of a parent’s natural rights; however, parental rights will not be

enforced to the detriment or destruction of the health and well-being of the child. Id.

III. Discussion

A. The Mother

Younger challenges the grounds alleged by DHS, including grounds that we are not

convinced that the trial court found and relied on for termination. Because only one ground

is sufficient to terminate parental rights, Burks, supra, we will address the subsequent-factors

ground. Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) provides as a ground that

other factors or issues arose subsequent to the filing of the original petition for dependency-

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neglect that demonstrate that placement of the juvenile in the custody of the parent is

contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate

family services, the parent has manifested the incapacity or indifference 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.

Younger contends that no “legitimate” issues arose separate and apart from the reason

for removal. She asserts that her arrest in February 2021 for possession of drug paraphernalia

was not a legitimate subsequent factor. If Younger’s arrest for possession of drug

paraphernalia had been the only subsequent factor, we might agree with her that it was not a

“legitimate” issue sufficient to support termination of her parental rights; however, there

were other factors to consider.

As a preliminary matter, it seems that the trial court focused on Younger’s criminal

activities as evidence supporting the subsequent-factors ground. The trial court found that

Younger was already on probation in Arkansas and had a “deferment” in Oklahoma and

that in February 2021, she had been arrested in Benton County, which put her probation

and deferment in danger of being revoked. At the termination hearing, Younger said that

she is not worried about the status of her probation and “deferment” because she had

resolved the matter in Benton County by going to jail. She claimed that her Oklahoma

charges have been reduced to misdemeanors and that she is now paying monthly installments

on her fines. She further claimed that the probation matter in Arkansas has been settled,

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but she had no paperwork to confirm that. Younger said that she has an upcoming hearing

on her failure-to-appear charge but that she expects her probation to be reinstated.

In this court’s de novo review, we can consider other evidence that came out at the

hearing to support the subsequent-factors ground. In Crawford v. Arkansas Department of

Human Services, 2019 Ark. App. 474, 588 S.W.3d 383, this court stated that

[i]n the absence of a statute or rule requiring specific findings of fact or a timely
request for specific findings under [Ark. R. Civ. P. 52], the appellate court will
ordinarily presume that the trial court made the findings necessary to support its
judgment. “[W]hen the trial court fails to make certain findings of fact, the appellate
court, under its de novo review, may nonetheless conclude that the evidence
supported the decision.” In determining whether the circuit judge clearly erred in a
finding, the appellate court may look to the whole record to reach that decision.
Indeed, de novo review of the evidence makes it incumbent on the appellate court to
review the entire record of the evidence presented to the circuit court.

2019 Ark. App. 474, at 3, 588 S.W.3d 383, 385 (citations omitted).

In addition to her argument that her arrest was not a legitimate subsequent factor,

Younger contends that her failure to complete services does not rise to the level of the

subsequent factors found in Camarillo-Cox v. Arkansas Department of Human Services, 360 Ark.

340, 201 S.W.3d 391 (2005), in which the mother had married a convicted sex offender,

and Johnson v. Arkansas Department of Human Services, 2015 Ark. App. 34, in which the mother

was incarcerated at the time of the hearing due to her drug involvement.

We have consistently recognized that a failure to comply with the case plan and court

orders may serve as a subsequent factor on which termination of parental rights can be based.

Easter v. Ark. Dep’t of Human Servs., 2019 Ark. App. 441, 587 S.W.3d 604. Younger was

ordered to obtain stable housing and income. At the termination hearing, the court heard

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testimony that Womack and Younger were living in a one-bedroom apartment belonging to

another couple with special needs and that the apartment was being paid for with the

disabled man’s “SSI check.” This court has held that “[a] stable home is one of a child’s most

basic needs.” Howell v. Ark. Dep’t of Human Servs., 2009 Ark. App. 138, at 13. Moreover, the

record indicates that Younger had not held down a job for four or five years before the

children were removed from her custody. Younger admitted at the termination hearing that

she did not have a job over the course of the entire case, which lasted for fourteen months,

until just before the termination hearing. Younger claimed that she had been acting as a part-

time caregiver for the woman with whom she and Womack were living and that she had

been working in that role for approximately one month. Younger said that she had recently

applied for a job at Outdoor Cap where Womack works. She further testified that she has

been applying for jobs, including “at every burger joint that you can think of,” but that she

is “too overqualified” because she has two college degrees. Younger demonstrated instability

by failing to obtain housing of her own and failing to timely secure and hold down a job

despite her advanced education. Smith v. Ark. Dep’t of Human Servs., 2018 Ark. App. 380, 555

S.W.3d 896 (holding that failure to comply with a case plan, along with instability, is

sufficient to support termination on the subsequent-factors ground).

The trial court also ordered Younger to submit to a drug-and-alcohol assessment and

random drug screens. Younger testified at the termination hearing that her assessment is

scheduled for after the termination hearing. Moreover, Younger claimed that she had tested

negative on random drug screens and a hair-follicle test. FSW Burge, on the other hand,

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testified that she had difficulty contacting Younger for random drug screens because Younger

had not provided DHS with an address until much later in the case. Incidentally, Younger

had been ordered to cooperate with DHS, and leaving no contact information for DHS

shows a lack of cooperation. Younger had also been ordered to stay after a hearing for drug

testing, but she left without being tested. Younger insisted at the termination hearing that

neither she nor Womack has a drug problem. With this testimony, Younger manifested an

indifference to remedying this subsequent issue given that she refused to acknowledge that

she has a problem.

Moreover, Younger failed to complete parenting classes as ordered by the trial court

and missed a significant number of visits with the children. Younger claimed that the

number of required parenting classes had changed from six hours to twelve hours and that

she could not finish the twelve hours until after classes resume in August following a break.

Younger complained that she had difficulty logging on for Zoom visits and, at times, did not

have a phone. FSW Burge testified that the parents had been instructed to text her if they

had problems logging on and that, despite telling them that she would log on early, they

would text her up to thirty minutes after the start time for the visit to say that they could not

log on. See Guerrero v. Ark. Dep’t of Human Servs., 2020 Ark. App. 160, 595 S.W.3d 437

(holding that evidence that Guerrero had never been in full compliance with the case plan

and court orders, along with evidence that for the first nine months of the case, he missed

eighteen visits with his child and fourteen drug screens, supported termination on

subsequent-factors ground); Danes v. Ark. Dep’t of Human Servs., 2019 Ark. App. 388, 585

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S.W.3d 731 (holding that Danes’s failure to exercise his visitation on a consistent basis,

attending only nineteen of sixty-eight visits provided by DHS, was evidence supporting

subsequent-factors ground).

Under these circumstances, we cannot say that the trial court clearly erred in finding

that the subsequent-factors ground supported termination of Younger’s parental rights.

B. The Father

Womack also challenges all of the grounds alleged by DHS in its petition to terminate

his rights. Because only one ground is necessary to support termination, Burks, supra, we will

address the subsequent-factors ground found by the trial court. Much of the analysis above

regarding the subsequent factors that support the termination of Younger’s parental rights

also applies to Womack. Womack did not obtain stable housing of his own and was instead

living in a one-bedroom apartment belonging to a couple with disabilities. He explained that

his incarceration had prevented him from obtaining housing approval from the U.S.

Department of Housing and Urban Development, that rent had been raised on another

apartment such that he could no longer afford it, and that he was currently on a waiting list

for a two- or three-bedroom apartment, which may become available after the termination

hearing. Regarding income, Womack testified that he had gotten a job at Outdoor Cap in

April 2021—just three months before the termination hearing.

Like Younger, Womack had been ordered to submit to random drug screens and a

drug-and-alcohol assessment. Womack testified at the termination hearing that his

assessment was scheduled to take place after the termination hearing. The trial court found

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that Womack had disobeyed its order to remain after the November 2020 review hearing for

drug testing. Further, Womack conceded that he had tested positive for methamphetamine

on a hair-follicle test in May—just two months before the termination hearing, but he testified

that his urine drug screen in May was negative. He claimed that he had not used drugs since

December 2020, but the trial court was not required to believe this assertion. Bridges, supra.

Womack admitted that he had not attended any AA/NA meetings as requested by DHS.

Similar to Younger, Womack had put his probation in danger of being revoked in that he

had been arrested in February 2021 on charges of possession of drug paraphernalia, theft by

receiving, and a slew of driving-related offenses. Finally, Womack also failed to complete all

twelve hours of parenting classes, and he missed a number of visits with his children, which

are subsequent factors worth considering. Guerrero, supra; Danes, supra.

Womack further argues that DHS did not prove that he is indifferent to remedying

the subsequent factors or issues. We disagree. Womack was given a case plan that he refused

to follow for the most part despite having fourteen months within which to take advantage

of services. Trout v. Ark. Dep’t of Human Servs., 359 Ark. 283, 158 S.W.3d 129 (2004) (holding

that persistent failure to comply with the court’s orders demonstrated that the mother was

either incapable of correcting the problems or indifferent to the need to do so). Womack

also argues that DHS did not provide services to aid him with housing, employment, and his

drug addiction. Womack, however, refused to cooperate with DHS, including not sharing

what he called a “temporary” address in Ft. Smith, where he lived for six months. According

to FSW Burge, Womack’s failure to provide DHS with his address contributed to DHS’s

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difficulty in providing some services. Nevertheless, DHS offered to provide appropriate

services, which is all that the statute requires. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii).

Moreover, the trial court repeatedly found that DHS had indeed offered appropriate services

to the parents to assist them with regaining custody of their children; Womack simply failed

to take advantage of those services. Under these circumstances, we cannot say that the trial

court clearly erred in finding that the subsequent-factors ground supported termination of

Womack’s parental rights.

Next, Womack challenges the potential-harm prong of the best-interest analysis. A

potential-harm analysis must be conducted in broad terms, with the trial court considering

the harm to the children’s health and safety that might occur from continued contact with

the parent. Barnes v. Ark. Dep’t of Human Servs., 2017 Ark. App. 525. There is no requirement

to find that actual harm would result or to identify the potential harm. Id. It is well settled

that a parent’s past actions over a meaningful period of time are good indicators of what the

future may hold. Easter, supra.

Womack argues that he is “clean, employed, not incarcerated, and has housing.”

Although Womack insisted that he had not used drugs since December 2020, the trial court

was not required to believe this assertion. Even assuming that Womack was “clean,” he

nevertheless did not have housing of his own and had only recently secured a job. The trial

court ordered him to obtain stable housing and income. Womack had done neither.

Unstable housing and being unavailable for random drug screens demonstrate potential

harm. Williams v. Ark. Dep’t of Human Servs., 2021 Ark. App. 386; see also Stockstill v. Ark.

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Dep’t of Human Servs., 2014 Ark. App. 427, 439 S.W.3d 95 (holding evidence of potential

harm sufficient where father’s housing was uncertain, he missed visitation, and he failed to

participate in early part of case). It is true that Womack was not incarcerated at the time of

the termination hearing, but he continued to engage in criminal activities and failed to

appear for court, which put his probationary status and freedom in jeopardy. Moreover,

evidence that supports the subsequent-factors ground for termination also supports a

potential-harm finding. See Johnson v. Ark. Dep’t of Human Servs., 2020 Ark. App. 313, 603

S.W.3d 630. We cannot say that the trial court clearly erred in finding that termination was

in the best interest of Womack’s children.

Finally, Womack contends that, because C.W.2 and C.W.3 desired to see their

parents, it was not in the children’s best interest to be denied in-person visitation. According

to Womack, Ark. Code Ann. § 9-27-325(o) (Supp. 2021) requires that DHS provide him

with in-person visits. At the termination hearing, FSW Burge testified that, given that the

parents had not consistently attended virtual visits via Zoom and had been late logging on

for visits, she did not schedule any in-person visits because she did not want the children to

be disappointed should their parents fail to show up for the in-person visit. While we tend

to agree that Womack should have received some in-person visits—even during the COVID-

19 pandemic—we are not clear how DHS’s failure to provide this service has any bearing on

whether continued contact with Womack represents potential harm to the health and safety

of the children. Further, Womack did not raise any statutory argument below with respect

to in-person visitation. Thus, the specific argument that he now raises on appeal is not

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preserved for review. Perry v. Ark. Dep’t of Human Servs., 2021 Ark. App. 193, 625 S.W.3d

374 (holding that we will not address arguments raised for the first time on appeal, even in

termination cases).

Affirmed.

ABRAMSON and MURPHY, JJ., agree.

James & Streit, by: Jonathan R. Streit, for separate appellant Kerri Younger.

Dusti Standridge, for separate appellant Christopher Womack.

Andrew Firth, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor children.

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