Lacee Isom v. Arkansas Department of Human Services and Minor Children

Cite as 2022 Ark. App. 159
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-538

LACEE ISOM Opinion Delivered April 13, 2022
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
V. SMITH DISTRICT
[NO. 66FJV-20-253]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE DIANNA HEWITT
CHILDREN LADD, JUDGE
APPELLEES
AFFIRMED

RAYMOND R. ABRAMSON, Judge

Appellant Lacee Isom appeals from the Sebastian County Circuit Court’s termination

of her parental rights to her children, E.I. (DOB 04-02-13) and R.I. (DOB 04-03-14). On

appeal, Isom argues that the termination order was not supported by sufficient evidence. She

challenges only the circuit court’s best-interest finding.1 We affirm.

On June 30, 2020, the Arkansas Department of Human Services (“DHS”) exercised

emergency custody of E.I. and R.I. due to inadequate supervision. Specifically, DHS alleged

that Isom knowingly left the juveniles with an inappropriate babysitter; the juveniles were

found walking on Highway 250 in Waldron, Arkansas, asking for rides from strangers. Prior

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The juveniles’ father, Chad Isom, relinquished his parental rights on June 18, 2021,
and never withdrew the relinquishment. Lacee Isom is the only party to this appeal.
to this incident, the juveniles had been in foster care three times within the past five years.

Following the juveniles’ removal, Isom visited the DHS office, refused a drug screen, and

made such a scene that security had to escort her out of the DHS office.

On July 6, 2020, DHS filed a petition for ex parte emergency custody and

dependency-neglect of the juveniles, and on the same day, the circuit court entered an order

granting DHS’s petition. Thereafter, the juveniles were placed in a relative foster home with

their paternal grandparents. The following day, on July 7, the circuit court held a probable-

cause hearing wherein it found that probable cause existed for the emergency order to remain

in place.

On September 29, the circuit court held an adjudication hearing. At this hearing, the

circuit court adjudicated the juveniles dependent-neglected on the basis of neglect due to

inadequate supervision. The circuit court also ordered that the case goal be reunification

and that there be no contact between Isom and the juveniles’ foster-family placement.

Additionally, the circuit court ordered Isom to maintain stable housing, employment, and

transportation; to complete parenting and anger-management classes; to complete a drug-

and-alcohol assessment and a psychological evaluation and follow the recommendations; and

to submit to random drug screens and hair-follicle tests.

On November 17, DHS filed a motion to suspend visits between Isom and the

juveniles because of her frightening behavior. While being transported to one of her visits

with the children, Isom repeatedly asked the DHS workers the following questions: “What

keeps you safe from transporting parents like me?” and “What keeps you from worrying

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about someone just grabbing the steering wheel and pulling it to the side of the road?”

Following these comments––along with other erratic behavior from Isom––the DHS

workers pulled over on the side of the road, called 911, and had a police officer handcuff

Isom and transport her to Waldron.

On December 15, the circuit court held a review hearing. At this hearing, the circuit

court continued the goal of reunification and noted that Isom did not want visits with her

children if she had to be transported by DHS. The circuit court further ordered Isom to

resolve her legal issues and begin services provided by DHS.

On April 27, 2021, the circuit court held another review hearing and continued the

goal of reunification. Additionally, the circuit court found that Isom was not in compliance

with the case plan and court orders and ordered Isom to not visit the juveniles outside of

DHS supervision and to have no contact with them at their school or at their foster

placement. On June 22, DHS filed a petition to terminate the Isoms’ parental rights. The

circuit court held a hearing on the petition on August 10, and in an order entered September

3, terminated all parental rights in this case. Isom now appeals.

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

Servs., 2019 Ark. App. 255, at 5–6, 576 S.W.3d 86, 88–89. We review for clear error, and 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. A court may order termination of parental rights if it finds clear and

convincing evidence to support one or more statutory grounds listed in the Juvenile Code,

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Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2021), and 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).

On appeal, Isom does not challenge the court’s finding that DHS proved grounds for

termination.2 Her only argument for reversal relates to best interest. In making a best-interest

determination, the circuit court must look at all the circumstances, including the potential

harm of returning the children to their parents’ custody—specifically, the effect on the

children’s health and safety; and it must consider the likelihood that the children will be

adopted. Ark. Code Ann. § 9-27-341(b)(3).

Isom also does not challenge the adoptability finding, so we address only the

potential-harm prong of the circuit court’s best-interest finding. In assessing the potential-

harm factor, the circuit court is not required to find that actual harm would result or to

identify specific potential harm. Gonzalez v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 425, at

12, 555 S.W.3d 915, 921. Additionally, evidence that supports the statutory grounds may

also support a potential-harm finding. E.g., Cole v. Ark. Dep’t of Hum. Servs., 2020 Ark. App.

481, at 9–10, 611 S.W.3d 218, 223. Further, potential harm includes a child’s lack of

2
Because Isom does not challenge the statutory grounds for termination of her
parental rights, she abandons any challenge to those findings on appeal. Davidson v. Ark.
Dep’t of Hum. Servs., 2019 Ark. App. 402, 585 S.W.3d 738.

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stability in a permanent home; a court may consider a parent’s past behavior as a predictor

of future behavior. Gonzalez, supra.

In the case before us, the record is replete with evidence of potential harm. Isom

essentially refused all court-ordered services throughout the case, she was arrested several

times during the case, and she failed to maintain stable housing, transportation, and

employment. E.g., Belt v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 315, at 9, 603 S.W.3d

203, 209 (“Here, both parents failed to fully comply with the court’s orders. Moreover,

during the case, both parents were repeatedly arrested, and both failed to pay their fines,

leaving them subject to future arrest.”); Jung v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 523,

at 6, 443 S.W.3d 555, 559 (“A parent’s lack of stable housing or employment can

demonstrate potential harm to a child, as can a parent’s continued illegal-drug usage.”).

On appeal, Isom maintains that the circuit court’s potential-harm finding was clearly

erroneous because she had income, would soon have employment, and could pay child

support. This argument is based solely on Isom’s own testimony, which the circuit court did

not find credible. In determining whether a finding is clearly erroneous, an appellate court

gives due deference to the opportunity of the circuit court to assess the witnesses’ credibility.

Gossett v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 240, 374 S.W.3d 205. Isom admitted

that she was not ready to care for the children and that it would be in their best interest to

terminate her parental rights and be adopted by the paternal grandparents. We cannot say

the circuit court erred here.

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Isom also argues that the circuit court’s entire best-interest finding was erroneous

because there was a least-restrictive-alternative option available––placing the juveniles in the

custody or guardianship of their paternal grandparents. However, this argument was never

made to the circuit court, and we agree with DHS that the argument is not preserved. It is

well established that if the argument is not made below, it is barred from being raised on

appeal. See Cole, 2020 Ark. App. 481, 611 S.W.3d 218.

Finally, Isom argues that the circuit court clearly erred because it failed to hold a

permanency-planning hearing. However, like her relative-placement argument, this

argument is also not preserved for our review. In the record before us, it appears the

permanency-planning hearing was set for June 22, 2021, but was neither held nor continued.

The same date, June 22, DHS filed its petition to terminate Isom’s parental rights. The next

court date was the August 10 termination hearing. Isom never requested a permanency-

planning hearing though she could––and for appellate purposes, should–––have requested

one. Because she did not, the argument is not preserved for our review.

However, we also note that the outcome of a permanency-planning hearing does not

prevent the circuit court from ruling on a termination petition, and it also will not change

the outcome of the circuit court’s final termination order. E.g., McKinney v. Ark. Dep’t of

Hum. Servs., 2017 Ark. App. 475, at 16, 527 S.W.3d 778, 788–89 (“[T]his court agrees with

DHS that there is no express remedy for such a failure in the juvenile code. When the

legislature has not seen fit to fashion a remedy, it is not the province of the court of appeals

to do so.”); Ark. Code Ann. § 9-27-341(b)(1)(B). Accordingly, we affirm.

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Affirmed.

VIRDEN and MURPHY, JJ., agree.

Tabitha McNulty, 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.

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