David Miller and Delissa Johnson v. Arkansas Department of Human Services and Minor Child

Cite as 2023 Ark. App. 561
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-23-333

Opinion Delivered December 6, 2023
DAVID MILLER AND DELISSA
JOHNSON APPEAL FROM THE WHITE COUNTY
APPELLANTS CIRCUIT COURT
[NO. 73JV-21-110]
V. HONORABLE MARK PATE, JUDGE

ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR AFFIRMED; MOTION TO WITHDRAW
CHILD GRANTED
APPELLEES

RITA W. GRUBER, Judge

This is an appeal following an order of the White County Circuit Court terminating

the parental rights of Delissa Johnson and David Miller. Delissa’s attorney has filed a no-

merit brief and a motion to be relieved as counsel 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) (2022), asserting that there are no issues of arguable merit to support an

appeal of the decision to terminate her parental rights.1 David filed a merit brief challenging

1
The clerk of this court attempted to deliver to Delissa a packet containing a copy of
counsel’s brief and motion to withdraw and advising her of her right to file pro se points for
reversal; however, the packet was returned and marked as “return to sender/unable to
forward.” The clerk’s office contacted Delissa’s counsel, who informed that Delissa’s last
known address was a prison address, but at the time of mailing, Delissa had been paroled
and had since absconded.
only the statutory grounds to support the termination. We affirm the termination of parental

rights as to both parents and grant counsel’s motion to withdraw.

On May 5, 2021, the Arkansas Department of Human Services (DHS) filed a petition

for ex parte emergency custody and dependency-neglect regarding MC, who was eleven years

old. It alleged that both parents were incarcerated—Delissa at the White County Detention

Center and David at the Arkansas Department of Correction (ADC). The affidavit in

support of the petition explained that MC’s guardians, Betty and Lonnie Randall, informed

DHS that they could no longer have MC in their home. Because MC had no place to go,

DHS exercised an emergency hold on May 3.

An ex parte order for emergency custody was entered on May 6 followed by a

probable-cause order on May 11, which found that probable cause existed and continued to

exist such that MC would remain in DHS custody. 2 A June 3 adjudication order provided

that the matter was “uncontroverted” and that MC was dependent-neglected due to the

parents’ incarceration and the Randalls’ unwillingness to continue as MC’s guardians. The

court also found that David is MC’s “presumed father” because he signed an

acknowledgement of paternity at MC’s birth. The court set the goal of reunification or

placement with an appropriate parent. The parents were ordered to cooperate with DHS,

follow the case plan, and refrain from using or possessing controlled substances. The order

2
The order also granted the guardians’ request to be dismissed from the case.
However, there is no indication in the record that the guardianship was terminated, which
would be necessary to clear MC for adoption.

2
provided that they would be subject to random drug-and-alcohol screens once they were no

longer incarcerated. The parents were required to obtain drug-and-alcohol assessments and

follow the recommendations; complete psychological evaluations; complete parenting

classes; and obtain and maintain appropriate housing and income once released from

incarceration. Visitation was at the discretion of DHS.

In a September 24 review order, the court continued the goal of reunification, and

MC remained in DHS custody. The order provided that DHS had complied with the case

plan and orders of the court, specifically noting that DHS “provided, referred, or otherwise

offered: foster care; foster home visits; case management, advocacy, staffings, referrals for

services, and visitation once the parents are able to do so.” The court found that DHS had

made reasonable efforts to provide family services and finalize a permanency plan. Delissa

was found to have partially complied with the case plan because she had completed

rehabilitation at Phoenix, attended counseling, and was employed, but she was on

absconding status and had no residence of her own. David remained incarcerated, but the

order indicated he may be paroled in November. The court found the parents had made

some progress toward the goals of the case.

A second review order was entered on January 20, 2022. The order provided that

Delissa was out of jail but had an outstanding arrest warrant, and David remained

incarcerated. The goal of the case remained unchanged. The court found that Delissa had

partially complied with the case plan, making the same findings as the first review order and

3
adding that Delissa had not attended outpatient treatment as recommended. The court

made the same reasonable-efforts finding as the previous order.

At the time of the permanency-planning hearing on April 28, David remained

incarcerated. The court found that the safety concerns that prevented a trial placement or

return of custody included the following: MC’s guardians were no longer involved in the

case; Delissa lived with her mother-in-law, left inpatient drug treatment twice without

successful completion, was not maintaining contact with DHS, had not provided proof of

counseling or employment, provided invalid samples for drug testing on 02/14/22 and

03/4/22, and had absconded from probation; and David remained incarcerated with a

requirement to complete a nine-month therapeutic program. The court continued the

previous goal, found that DHS had complied with the case plan, and made a reasonable-

efforts finding, but the court found that the parents had demonstrated little progress toward

the goals of the case plan.

In the July 28 fifteen-month permanency-planning review order, the circuit court

found that the same safety concerns remained that prevented return of MC to the parents

and changed the goal of the case to adoption. The court found that Delissa had not complied

with the case plan and court orders, specifying that her whereabouts were unknown; she left

inpatient drug treatment twice without successful completion; she was not maintaining

contact with DHS; she had not provided proof of counseling or employment; she had not

completed the psychological evaluation or parenting education; and she admitted using

methamphetamine on 06/27/22. Regarding David, the court found that he remained

4
incarcerated and needed to complete a nine-month therapeutic program. Again, the court

found that DHS had complied with the case plan and made the same reasonable-efforts

finding.

On September 20, DHS filed a petition for termination of parental rights based on

the following grounds: failure to remedy by both the custodial parent (Ark. Code. Ann. § 9-

27-341(b)(3)(B)(i)(a)) and noncustodial parent (Ark. Code. Ann. § 9-27-341(b)(3)(B)(i)(b));

failure to provide significant material support or failure to maintain contact (Ark. Code.

Ann. § 9-27-341(b)(3)(B)(ii)(a)); and subsequent factors (Ark. Code. Ann. § 9-27-

341(b)(3)(B)(vii)(a)). In a September 26 review order, the circuit court continued the goal of

termination and adoption. David remained incarcerated, and Delissa had been released from

the White County Detention Center, but her whereabouts were unknown. The DHS court

report, the CASA report, and Delissa’s 09/14/22 drug test, which was positive for

methamphetamine and amphetamine, were entered into evidence. The same reasonable-

efforts finding was made.

A termination hearing took place on January 19, 2023. David attended and was

represented by counsel; Delissa was represented by counsel, who stated that Delissa had

notice of the hearing but informed counsel that she would not be present. Both parents were

present on February 9 when the circuit court announced its decision.

DHS caseworker Jessica Rhoades testified that MC had come into DHS custody after

his guardians did not pick him up from an inpatient hospital placement. Neither parent had

custody of MC at that time. Rhoades testified that MC had eleven placements during the

5
case, explaining that he would act out, get into altercations with his placements, and destroy

property. At the time of the termination hearing, MC had been in a therapeutic foster home

for ten months, which had been his longest placement. He was doing well, had good grades,

was on the basketball team, and was using the techniques he learned in counseling. When

asked what was different with MC now than in the previous placements, Rhoades stated that

he was in a stable environment and able to express how he feels and work through his anger.

Rhoades testified about the services provided to both parents. For Delissa, DHS had

made referrals for a psychological evaluation; provided visitation and transportation; and

conducted home visits, drug screens, and staffings. Despite referrals, Delissa had not

completed the psychological evaluation or established consistent mental-health treatment,

and had only completed four of twelve parenting classes. Delissa had lived with numerous

people throughout the case but had been living with her boyfriend since October 2022,

which was her most consistent residence. Delissa cleaned homes, but DHS could not confirm

her employment because she was paid in cash and had no proof that her income was

sufficient to support herself and MC. Rhoades testified that Delissa had entered substance-

abuse treatment multiple times but never completed a program, and she did not participate

in the referred outpatient treatment after leaving inpatient treatment. Rhoades said that

Delissa tested positive for methamphetamine on 10/08/2021, 01/13/22, and 02/14/22

and admitted using methamphetamine prior to her June 2022 arrest. Rhoades had

attempted to screen her in December 2022, but Delissa could not provide a sample. Rhoades

6
stated that Delissa had not demonstrated a consistent period of sobriety and would have to

complete substance-abuse treatment to be considered as a placement for MC.

Rhoades stated that Delissa had been in jail at times during the case but was currently

on absconding status because she had failed to report to her parole officer and had an active

warrant. Rhoades expressed that MC was in DHS custody due to his parents’ incarceration

and nothing had changed, adding that it was likely that Delissa would be in jail again because

of the active warrant. Rhoades said that Delissa attended twenty of forty visits, which did not

go well because there was “a lot of anger and feelings” expressed during the visits, and they

ceased in September 2022 because MC was unwilling to participate in visitation. Roades did

not think Delissa has a good bond with MC.

Rhoades testified that David had been incarcerated throughout the entirety of the

case. He had completed parenting, substance-abuse, and anger-management classes while

incarcerated. In December 2022, David had been in “trouble” for “being under the

influence” while incarcerated. As a result, Rhoades did not think he had fully benefited from

the substance-abuse program he participated in while incarcerated. Due to his incarceration,

DHS was unable to conduct home visits, drug screens, or family counseling. Rhoades

testified that David participated in staffings where the services he needed were discussed.

She did not contact the ADC to determine if David could receive counseling or complete

the psychological examination while incarcerated. Rhoades said that David sent letters to

MC, but MC never wrote back. David also sent a letter to Rhoades asking what he could do

and inquiring about MC and had made several requests for photos. Although the possibility

7
of visitation was discussed in staffings and with the therapist, it was not offered because MC

refused to visit with David. Rhoades said that she was neither aware of any providers used

by DHS that provided services in prison nor did David suggest any during staffings or request

that she look for such providers.

Rhoades’s concerns in reunifying MC with Delissa included her ability to provide a

stable, drug-free environment; to remain out of jail; and to be a consistently appropriate

parent. For David, the concern was his incarceration. Rhoades testified that the parents had

not made any progress, had not been diligently working toward reunification, and had not

shown a genuine sustainable interest in complying with the case plan. Rhoades said that

Delissa had been given several chances to complete services but failed to do so. Rhoades

indicated that because David was incarcerated there was only “so much he can show the

Department due to that status and not knowing when he’s going to be released.” At the time

of the hearing, Rhoades had not been able to obtain David’s release date. Before placing MC

with David once released, DHS would require him to obtain suitable housing, employment,

and reliable transportation; maintain a drug-free environment; and participate in family

counseling, parenting classes, and visitation. When asked how long that would take, Rhoades

indicated that was “a big question mark” because there were so many uncontrollable factors,

including that MC and David would have to establish a relationship in family counseling.

Even if David were released soon, Rhoades could not say that placement with him would

occur.

8
Rhoades testified that MC could not be placed with either parent that day and that

the parents had not remedied the conditions that caused removal. On the basis of her

experience with MC, Rhoades testified that the uncertainty of what was going to happen to

him and not being able to plan for his future would cause him to regress in his anger-

management progress. She was not aware of any factors that would prohibit or prolong the

adoption process. When asked what factors were in favor of a successful adoption for MC,

Rhoades said that he is a “great kid,” noting that he is funny, intelligent, and determined

and has been able to find joy in basketball and other things to make himself a better person.

With respect to potential harm, Rhoades indicated that MC would be at risk of harm to be

around caregivers who have a substance-abuse problem, who are in and out of jail, and who

have not been a consistent part of his life, all of which could cause MC to return to DHS

custody. With the case having been open for over fifteen months, DHS recommended that

termination and adoption would be in MC’s best interest, specifically mentioning that more

time for the parents would not be in MC’s best interest because he needs stability and

consistency to move forward with his life and plan for his future.

Katherine Hudson, a DHS program assistant, provided visitation services and

supervised visits between MC and Delissa. Hudson stated that Delissa missed about half of

the forty visits due to a variety of reasons, including Delissa’s being incarcerated, attending

rehab, oversleeping, not showing, or being “MIA.” While Hudson thought that MC likely

had a close bond with Delissa when he was younger, their relationship had become

confrontational at the point she met them. She said that MC had “no faith in his mom” and

9
was “constantly doubting that she would ever be able to get him back home.” They argued

often during visits, and Delissa had good days and bad days in how she handled the

confrontation. Hudson indicated that sometimes Delissa’s behavior was erratic and seemed

to be drug induced. Visitations ceased at MC’s request after he had recognized that Delissa

was on drugs during the last visit, which resulted in MC’s hanging up on the Zoom call. He

never requested another visit, though Rhoades spoke to MC’s therapist about continuing to

schedule visits. Hudson said that not long after the last visit, Delissa was incarcerated for

several months, and no progress had ever been made to reestablish a visitation schedule.

Laura Beth Brown, the Court Appointed Special Advocate (CASA) case coordinator,

had approved the CASA court report introduced at the hearing. Brown met with MC shortly

after the case opened. She testified that that, although he initially had behavioral issues at

home and school, MC’s behavior improved after he was placed in a therapeutic foster home

in April 2022, which provided greater structure and stability. CASA recommended that

parental rights be terminated and that MC be adopted. Brown stated that MC is adoptable

and described him as a “good kid” who is engaging, pleasant, and intelligent. Brown said

that MC does well in school and now gets along well with others. Brown testified that MC

has no health concerns and his mental health is stable. She stated that MC has been in care

626 days and deserves permanency.

David testified that he is MC’s father and was currently incarcerated. He had asked

for and received photos of MC on two occasions but not since communications had broken

down toward the end of 2022. David admitted he had tested positive for methamphetamine

10
on December 6, 2022, while incarcerated at ADC. He stated that a disciplinary action took

place on December 28, and he was currently on a thirty-day “refocus.” David stated that he

completed all the courses offered by the ADC but could not recall when they occurred. Some

of the classes, which included anger management, substance abuse, and parenting, had been

taken before the case was open. He indicated that if a class had been taken previously, there

is a waiting period before it can be taken again.

After closing arguments, the circuit court took the matter under advisement and

announced its decision to terminate both parents’ rights in court on February 9. In the

February 22, 2022 termination order, the circuit court found DHS had proved all four

grounds alleged in its petition. The order specifically found as follows:

It has been over fifteen months since the child was taken into emergency hold and
the mother and father remain in and out of jail and incarcerated with no stable
residence or income to support the child. The mother has continued to fail drug tests
for methamphetamines and has entered at least three drug rehabilitation programs
and has failed to complete any of them. She has not maintained consistent contact
with the department and has not completed mental health counseling. The mother
has been provided services throughout the case, has had ample time and opportunity
to remedy the issues that prevent placement of the juvenile in her home and
continues to show indifference or inability to remedy said issues. The father is
incarcerated at the Arkansas Department of Correction and is expected to be
incarcerated for at least several more months. While he did complete some programs
while incarcerated, as recently as December 2022, he obtained and used
methamphetamines in jail. Visitations have not occurred with either parent due to
therapy recommendations and [MC’s] desires to not visit with his parents. It is in the
best interests of the child to terminate parental rights and change the goal to
adoption.

In its best-interest finding, the circuit court found that MC is adoptable and that he

would be subject to potential harm because the parents had over fifteen months to get out

11
of prison or jail and establish a stable, suitable residence for MC but had failed to do so. The

circuit court noted that Delissa had been in and out of jail the entire case; admitted using

methamphetamine in June 2022 and tested positive for methamphetamine in September

2022; had left multiple drug-treatment programs without successful completion; and failed

to provide DHS proof of counseling attendance, employment, completion of the

psychological evaluation, and completion of parenting classes. The circuit court found that

David had been hoping to be paroled since the beginning of the case, and no actual release

date had been verified. Even after release, David would need additional compliance and

services in order to establish his fitness as a parent. The circuit court also noted that in

December 2022, David had obtained and used methamphetamine in prison. The court

found that MC’s “continued lack of permanency would cause potential harm,” and there

would be “obvious harm” to MC if placed with either parent at that time. This appeal

followed.

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

Servs., 2015 Ark. App. 535, at 2. 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 (Supp. 2023). Clear and

convincing evidence is that degree of proof that will produce in the fact-finder a firm

conviction as to the allegation sought to be established. Thomas v. Ark. Dep’t of Hum. Servs.,

2020 Ark. App. 457, at 4, 610 S.W.3d 688, 691. The appellate inquiry is whether the circuit

court’s finding that the disputed fact was proved by clear and convincing evidence is clearly

12
erroneous. Id. 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. Long v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 372, at 16, 675

S.W.3d 158, 169. In determining whether a finding is clearly erroneous, due deference is

given to the opportunity of the circuit court to judge the credibility of witnesses. Id.

I. No-Merrit Brief and Motion to Withdraw Filed by Delissa’s Counsel

Counsel for Delissa correctly asserts that there can be no meritorious challenge to the

sufficiency of the evidence supporting the termination of her parental rights. Although the

circuit court found multiple statutory grounds to support termination, only one ground is

necessary. Westbrook v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 352, at 3, 584 S.W.3d 258,

261. Counsel focuses on the subsequent-factors ground, which provides that

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

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Failure to comply with court orders is a

subsequent factor on which termination may be based. Arnold v. Ark. Dep’t of Hum. Servs.,

2019 Ark. App. 300, at 11, 578 S.W.3d 329, 336.

The evidence introduced established that Delissa never successfully completed drug

treatment and continued to test positive for illegal substances throughout the case. Delissa’s

failure to complete drug treatment and continuing to test positive for illegal substances

13
support termination under the subsequent-factors ground, and any argument to the contrary

would be without merit.

Counsel also adequately explains why the best-interest finding is supported by clear

and convincing evidence and that no issue of arguable merit could be asserted on appeal.

The caseworker testified that she was not aware of any factors that would prohibit the

adoption process for MC. Regarding factors in favor of a successful adoption, Rhoades

testified that MC has no health concerns and is a “great child,” elaborating that he is funny

and intelligent and has been able to find joy in basketball and other things to make himself

a better person, despite everything he had been through. The CASA case coordinator said

that MC is adoptable and described him as pleasant, engaging, and intelligent. She said he

gets along well with others and does well in school. She also stated MC’s mental health is

stable and there are no health concerns.

There was also evidence supporting the potential-harm finding. Delissa continued to

test positive for drugs throughout the case. Although she entered inpatient drug treatment

multiple times, she failed to complete the treatment as ordered by the circuit court. She was

referred to outpatient treatment after leaving the inpatient program but never attended.

There was testimony that MC wanted to stop a visitation after he realized that Delissa was

under the influence of drugs. Evidence of a parent’s continued drug use or failure to comply

with court orders constitutes sufficient evidence of potential harm. Johnson v. Ark. Dep’t of

Hum. Servs., 2020 Ark. App. 313, at 11, 603 S.W.3d 630, 636.

14
As counsel notes, there was only one other ruling adverse to Delissa during the

termination hearing. This occurred when DHS asked the caseworker whether, in her

experience, there would be an effect on MC if the case were continued for an uncertain

amount of time. Delissa’s counsel objected on the basis of speculation. DHS responded that

the caseworker had been working with the family and MC, and there were “large

documented amounts of time and behaviors that have to do with MC and his reactions to

the uncertainty of this whole process.” The circuit court allowed the testimony, stating that

Delissa’s counsel would have the opportunity to cross-examine. The caseworker responded

that she believed the uncertainty of what was happening with the case and what was going

to happen to him would cause MC to regress and move back into the behaviors he exhibited

at the beginning of the case instead of moving forward.

There could be no issue of arguable merit to raise on appeal of this evidentiary ruling.

We will not reverse a circuit court’s ruling on admissibility of evidence absent a manifest

abuse of discretion. Barton v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 239, at 12, 576 S.W.3d

59, 67. The testimony objected to was relevant to the issue of potential harm to MC if the

case continued for an uncertain amount of time. There was testimony that MC’s anger and

behavioral issues stemmed from the uncertainty and instability in his life at the beginning of

the case, which improved with counseling and being in a stable placement. 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, at 16, 529 S.W.3d 692, 702.

Potential harm must be viewed in broad terms, including the harm the child suffers from

15
the lack of stability in a permanent home. Id. “Potential” necessarily means that the answer

looks to future possibilities, and potential harm was required to be considered. Id.

Even if it was erroneous, a mere showing that the circuit court erroneously admitted

evidence will not support a reversal absent a showing of prejudice. Rauls v. Ark. Dep’t of Hum.

Servs., 2021 Ark. App. 366, at 10. Without any showing of prejudice, any judicial error as to

the admissibility of evidence is harmless error and cannot be grounds for disturbing a circuit

court’s order. Id. Because there was other evidence of potential harm regarding Delissa’s

continued substance abuse and lack of compliance with the case plan, any error in the

admission of this testimony was harmless.

Having reviewed the record on appeal and the brief presented to us, we conclude that

counsel has complied with the requirements established by the Arkansas Supreme Court for

no-merit appeals and agree that the appeal is wholly without merit. Accordingly, we affirm

the termination order and grant counsel’s motion to withdraw.

II. David’s Merit Brief

David’s only argument on appeal is that the evidence is insufficient to support any of

the grounds for termination.3 In regard to the subsequent-factors ground, he contends that

DHS was required to show that meaningful efforts were made to rehabilitate him. As for

failure to remedy (noncustodial parent), he contends that DHS was required to show that

3
Because David does not challenge the circuit court’s best-interest determination, it
is waived on appeal. Debiasse v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 331, at 9, 651
S.W.3d 736, 743.

16
appropriate family services were offered. David’s argument as to both of these grounds

focuses entirely on the issue of services.

While David argues that he challenged the lack of services at the termination hearing,

he acknowledges that the circuit court made previous reasonable-efforts findings. He did not

appeal those findings in prior orders but states that this should not bar him from making

this argument on appeal, contending that the findings could have applied only to Delissa

because DHS did not offer him services. See Peterson v. Ark. Dep’t of Hum. Servs., 2020 Ark.

App. 75, at 11, 595 S.W.3d 38, 44–45 (holding that appellant waived any services argument

on appeal where he failed to challenge any of the circuit court’s prior reasonable-efforts

findings and to request any of the specific services that he claimed on appeal were necessary

to remedy the cause of removal even though appellant may have raised a services argument

at the termination hearing). With respect to his argument that he should not be barred

because the reasonable-efforts findings only applied to Delissa, he cites no authority in

support of his argument.

In Cheney v. Arkansas Department of Human Services, 2012 Ark. App. 209, 396 S.W.3d

272, the father argued that DHS did not make meaningful and reasonable efforts to

rehabilitate him because he was not offered services while he was in prison. DHS and the

attorney ad litem argued on appeal that the father waived this argument due to his failure to

appeal from either the permanency-planning order or the fifteen-month-review order in

which reasonable-efforts findings were made by the circuit court. Cheney, 2012 Ark. App.

209, at 11, 396 S.W.3d at 278. We noted that the permanency-planning order, which was

17
not appealed, provided that the father would be allowed visitation with the children only by

letter or mail while incarcerated. Id. We held that because the father failed to challenge the

reasonable-efforts finding in the permanency-planning order, he had waived the issue for

purposes of appeal. Id.

Because David failed to appeal the previous reasonable-efforts findings, his argument

is not preserved. Even if it were preserved, it would still fail. David does not address any

specific service that DHS could or should have provided to him while he was incarcerated.

Cheney, supra; Yarbrough v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 429, at 9, 501 S.W.3d

839, 844.

David further suggests that even if this court holds that he is barred from challenging

the previous reasonable-efforts findings, there was a four-month period between the last

hearing in which the circuit court made such a finding and the termination hearing. He

argues that, as a result, DHS was still required to offer services because it was not relieved of

providing reunification services. Again, David cites no authority in support of his argument.

The subsequent-factors ground requires only that DHS offer appropriate family

services. DHS contends that David was able to participate in staffings and that visitation

would have been offered, but MC was unwilling to visit with David while he was

incarcerated. David cites the definition of family services, which is “relevant services provided

to a juvenile or his or her family” in order to achieve reunification or implement a plan of

adoption or guardianship. Ark. Code Ann. § 9-27-303(24)(A) (Supp. 2023). He states that

DHS, with the approval of the circuit court, was the “authority” on identifying what services

18
he would need to complete in order to have MC placed in his care. He contends that DHS

never informed him of what services he should complete while incarcerated and if the

services he completed in the years prior to the case opening would meet the requirement of

the case plan. DHS cites the portion of the definition of “reasonable efforts” to involve an

incarcerated parent, which provides:

(v)(a) “Reasonable efforts” include efforts to involve an incarcerated parent.

(b) The department shall:

(1) Involve an incarcerated parent in case planning;

(2) Monitor compliance with services offered by the Division of Correction to the
extent permitted by federal law; and

(3) Offer visitation in accordance with the policies of the Division of Correction
if visitation is appropriate and in the best interest of the child.

Ark. Code Ann. § 9-27-303(49)(A)(v). Here, DHS was aware of the services that David

completed while incarcerated; inquired about his release date and the therapeutic program

he was required to complete before release; allowed him to attend staffings; and attempted

to schedule visitation.

This court has affirmed terminations based on the subsequent-factors ground where

the appellant argued the circuit court erred because no services were offered. See Earls v. Ark.

Dep’t of Hum. Servs., 2018 Ark. 159, at 11–12, 544 S.W.3d 543, 549–50 (noting that the

record demonstrated that Earls did not request services from DHS and that, because of his

incarceration, there were no services that DHS could offer); see also Cheney, supra. Because

David failed to challenge the prior reasonable-efforts findings and makes no suggestion of

19
what services DHS could have provided to him while incarcerated, we conclude that his

argument is without merit. Accordingly, we affirm the termination as to David.

Affirmed; motion to withdraw granted.

VIRDEN and BROWN, JJ., agree.

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

David Miller.

Dusti Standridge, for separate appellant Delissa Johnson.

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

Dana McClain, attorney ad litem for minor child.

20