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Date: 2021-06-23 11:21:07
ARKANSAS COURT OF APPEALS
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DIVISION IV
No. CV-20-3
OPINION DELIVERED: MAY 20, 2020
BRANDON AND MEGEAN
JOHNSON APPEAL FROM THE LOGAN
APPELLANTS COUNTY CIRCUIT COURT,
NORTHERN DISTRICT
[NO. 42BJV-19-13]
V.
HONORABLE TERRY SULLIVAN,
JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR AFFIRMED
CHILDREN
APPELLEES
ROBERT J. GLADWIN, Judge
The Logan County Circuit Court terminated Megean and Brandon Johnson’s
parental rights to their four children, BJ (born May 9, 2007), MJ (born May 31, 2010), and
twins RJ and CJ (born April 21, 2017). Megean and Brandon appeal in separate briefs, and
both argue that the circuit court clearly erred by finding that it was in the children’s best
interest to terminate parental rights. We affirm.
I. Facts
Appellee Arkansas Department of Human Services (DHS) filed a petition for
emergency custody and dependency-neglect on April 15, 2019, alleging that the children
were at risk of serious harm as a result of abuse, inadequate supervision, neglect, and parental
unfitness. The attached affidavit reflects that Megean and Brandon were noncustodial
parents of BJ and MJ and the custodial parents of RJ and CJ. The six lived with Brandon’s
mother, Christie Elliott, who had legal custody of BJ and MJ.
The history of involvement between DHS and the parents is described in the affidavit
as follows: A protective-services case was opened in April 2009 for neglect and inadequate
supervision because twenty-month-old BJ was found by a police officer on the highway;
this case was closed after the family secured appropriate housing. A second protective-
services case based on neglect and inadequate supervision was found to be true in July 2013
when five-year-old BJ was found over a half mile from home, and both parents tested
positive for methamphetamine. The parents refused services and did not comply with the
case plan or obtain sobriety; however, the case was closed when the circuit court gave
custody of BJ and MJ to Christie and ordered the parents to have only supervised visitation.
In February 2015, DHS investigated whether Michael Elliott, Christie’s husband, had sexual
contact with MJ and LJ, who is a cousin to the children. The investigation found the
allegation regarding LJ to be true, but this finding was overturned on appeal in May 2016.
The affidavit states that on November 7, 2018, a true finding was made that Michael
had victimized MJ by subjecting her to sexual contact, sexual penetration, sex (oral),
indecent exposure, pornography of live sex acts, and solicitation. DHS began providing the
family with counseling, trauma-based counseling, worker visits, case management, and
attempted drug screens.1 During home visits, it was discovered that Brandon and Megean
were living in Christie’s house along with BJ, MJ, and the twins. Despite the court’s
1
Testimony at the termination hearing established that Michael Elliott was not
allowed back into the home after MJ disclosed the abuse in November 2018.
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supervised-visitation order, Christie regularly left the children unattended with Megean and
Brandon. Further, it was alleged that on various occasions, other family and nonfamily
members were living in the home and in a shed on the property. Further, the home had a
constant stream of visitors, one of whom stated that he was there to buy “expensive
cigarettes” from Brandon.
Brandon and Megean refused drug testing throughout the case. On two occasions,
Brandon told DHS workers that he would test positive for methamphetamine because he
“worked for the sheriff’s department.” In February 2019, the home was found to have
“plumbing issues” and to be dirty with rotten food in dishes, rodent and dog feces on the
floors, and mold throughout. DHS workers counseled the family, discussed needed repairs,
and provided cleaning supplies and instruction. In March, Megean disclosed that a no-
contact order had been placed on her and Brandon because of an altercation between them.
The affidavit describes that on April 11, DHS workers could smell the odor of animal
urine and feces before opening the door to the home. Inside, the odor was pungent and
there were swarms of flies throughout the kitchen. Covering the cabinet tops were dirty
dishes, various nonkitchen items, wine glasses with wine in the bottom, and food spills. In
the dining and living area, there were several piles of dirty laundry. The children were
taken into DHS custody on a seventy-two-hour hold.
An ex parte order for emergency custody was filed on April 15, and a probable-cause
hearing was held on April 17. The circuit court found probable cause to continue DHS’s
custody of the children, and Megean and Brandon were ordered to submit to random drug
screens and to comply with the case plan.
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DHS filed a “Motion for Child Hearsay” on May 24. DHS alleged that MJ, who
was under the age of ten, had disclosed allegations of sexual abuse by her grandfather,
Michael, and that her parents and Christie knew about the allegations. DHS stated that the
motion was to notify the parties of its intent to offer her statement.
An adjudication hearing was held on June 19, and the court’s July 2 order found the
children to be dependent-neglected based on abuse, neglect, and parental unfitness.
Megean, Brandon, and Christie stipulated that the allegations in the petition were true and
correct, that MJ had been sexually abused by Michael, and that they failed to protect her
from that sexual abuse. They stipulated that MJ’s forensic interview would show that she
was sexually abused, the abuse was ongoing for years, and she had told Megean, Brandon,
and Christie about the abuse. Further, they stipulated that Megean, Brandon, and Christie
neglected the children by inadequate supervision because of their drug use and the
inappropriate and unsafe people in the home; by environmental neglect; by parental
unfitness due to drug use in the home, drug use by the father, and inappropriate and unsafe
people in the home; and the domestic violence that occurred in the home between Brandon
and Megean. The court found that the parents and custodian were unfit and that the
children could not be returned to them, and the goal of the case was reunification with the
parents. Supervised visitation was ordered, and both parents were ordered to comply with
the case plan, which included hair-follicle drug tests, drug-and-alcohol assessments,
psychological evaluations, and counseling.
On August 15, DHS filed a petition for termination of parental rights against both
parents. The alleged statutory grounds for termination were Arkansas Code Annotated
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section 9-27-341(b)(3)(B)(vi)(a) (Supp. 2019) (dependency-neglect found as a result of
sexual abuse perpetrated by parents or stepparents); section 9-27-341(b)(3)(B)(vii)(a) (other
factors arose subsequent to filing of original petition; despite services, the parent has
manifested incapacity or indifference to remedy those issues); section 9-27-
341(b)(3)(B)(ix)(a)(3)(B)(i) (aggravated circumstances based on sexual abuse); and section 9-
27-341(b)(3)(B)(ix)(a)(3)(B)(i) (aggravated circumstances in that there is little likelihood that
services will result in reunification). DHS also alleged that termination of parental rights
was in the best interest of the children, considering that they are adoptable and that they
would be subjected to potential harm if returned to their parents’ custody, including the
potential harm related to their parents’ failure to protect them from sexual abuse.
A hearing on DHS’s petition was held on September 18. Megean, Brandon, Logan
County sheriff’s deputy Michael Huber, Booneville police officer Kevin Kimbrell, mental-
health therapist Cara Hicks, DHS caseworker Carri Angelia Dodd, and forensic interviewer
Jennifer Cannavan testified. During Cannavan’s testimony, her videotaped forensic
interview of MJ was played for the court and admitted as evidence. The court found that
MJ’s disclosure of sexual abuse had a reasonable guarantee of trustworthiness and that the
disclosure was credible. The court dismissed Christie as a party to the case, finding that it
would not be in the children’s best interest to be placed in her custody. The court found
that DHS proved three alleged statutory grounds by clear and convincing evidence: (1)
subsequent factors; (2) aggravated circumstances based on sexual abuse; and (3) aggravated
circumstances based on little likelihood that services would result in reunification.
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Along with the stipulations made by the parents at the adjudication hearing, the
court’s order recites the following in support of its finding that other factors or issues arose
subsequent to the filing of the original petition that support termination of parental rights:
The parents have both been dishonest throughout this case specifically
concerning their drug use, the domestic violence in the home, and their daughter’s
sexual abuse. The parents denied drug use at the beginning of the case. Finally, after
the adjudication hearing, the mother admitted to [DHS] that she had used
methamphetamines since the juveniles were removed and she needed drug
treatment. The mother was offered drug treatment, but she did not attend. The
mother testified subsequently at the termination of parental rights hearing that she
had lied when she told [DHS] that she had used methamphetamines in an attempt to
gain custody of her children faster, and that she did not have a drug problem. The
father has denied and admitted drug use throughout this case. The father has been
referred five (5) times for drug and alcohol assessment and missed every single one.
The mother has missed a drug and alcohol assessment as well. The father and the
mother have missed drug screens and multiple hair follicle tests. Neither parent has
attended their treatment or counseling as scheduled.
Regarding the court’s finding that it was in the children’s best interest to terminate
parental rights, the court stated:
The Court finds the testimony of the worker, Carri Dodd, to be credible and
demonstrates how all of the above-named juveniles would be at risk of potential
harm if returned to the parent. The Court finds the chronic and unchecked sexual
abuse the juvenile [MJ] endured, the chaos that has continued in the home, the
unsavory and criminal element that the family has allowed to sleep in the same room
as their children, the domestic violence in the home, and the complete instability
these children have suffered, show they would be placed at great risk of serious
physical and emotional harm if they were ever returned to the parents. The Court
further finds that even if there were any issues of adoptability, they would be
outweighed by the great risk of harm in returning any of these juveniles to Brandon
or Megean Johnson.
Each parent filed a timely notice of appeal, and this appeal followed.
II. Standard of Review
We review termination-of-parental-rights cases de novo. Fisher v. Ark. Dep’t of
Human Servs., 2019 Ark. App. 39, 569 S.W.3d 886. An order forever terminating parental
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rights shall be based on a finding by clear and convincing evidence that it is in the juvenile’s
best interest, including consideration of the likelihood that the juvenile will be adopted and
the potential harm caused by returning the child to the custody of the parent. Ark. Code
Ann. § 9-27-341(b)(3). In addition, at least one statutory ground must exist. Id. 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. Fisher, supra. A heavy burden is
placed on a party seeking termination because termination of parental rights is an extreme
remedy in derogation of the natural rights of the parents. Id. We will not reverse a
termination order unless the circuit court’s findings are clearly 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.
Id.
In determining potential harm, which is forward looking, the court may consider
past behavior as a predictor of likely potential harm should the child be returned to the
parent’s care and custody. Brown v. Ark. Dep’t of Human Servs., 2019 Ark. App. 370, 584
S.W.3d 276. There is no requirement to establish every factor by clear and convincing
evidence; after consideration of all factors, the evidence must be clear and convincing that
termination is in the best interest of the child. Id.
III. Discussion
A. Statutory Grounds
Neither parent challenges the sufficiency of the evidence supporting the statutory
grounds for termination. The adjudication order reflects both had stipulated that, among
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other things, MJ was sexually abused by Michael Elliott over a period of several years and
that they had failed to protect her after MJ told them of the abuse The adjudication order
was not appealed, and the parents are now barred from challenging that they failed to protect
MJ from sexual abuse on appeal of the termination-of-parental-rights order. Brown v. Ark.
Dep’t of Human Servs., 2017 Ark. App. 303, 521 S.W.3d 183. Abuse or neglect of one
sibling can establish that another sibling is at substantial risk of serious harm. Eason v. Ark.
Dep’t of Human Servs., 2012 Ark. App. 507, 423 S.W.3d 138. Therefore, the statutory-
ground element is satisfied by the parents’ stipulation, and an appeal based on the statutory-
grounds findings is barred.
B. Best Interest
However, the parents challenge in separate briefs the circuit court’s finding that
termination of parental rights is in their children’s best interest. In determining the best-
interest element, the circuit court considers the likelihood of the child’s adoption and the
potential harm to the child if returned to the parents. Ark. Code Ann. § 9-27-341(b)(3).
Both parents acknowledge that it is well settled that a parent’s past behavior is an indicator
of likely potential harm should the child be returned to the parent’s care and custody.
Gonzalez v. Ark. Dep’t of Human Servs., 2018 Ark. App. 425, 555 S.W.3d 915; Parnell v.
Ark. Dep’t of Human Servs., 2018 Ark. App. 108, 538 S.W.3d 264.
Megean and Brandon argue that their case is distinguishable from Yelvington v.
Arkansas Department of Human Services, 2019 Ark. App. 337, 580 S.W.3d 874, wherein this
court held that the mother’s failure to demonstrate the ability to protect her child and keep
him safe supported the circuit court’s assessment of potential harm:
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[S]he not only failed to protect CY from his father––whom she knew had received
two true findings for sexually abusing children—but she also failed to alert either the
police or DHS once she learned her child had been raped. In fact, after CY had
disclosed the abuse to her, [the mother] failed to do anything or take any protective
actions such as seeking medical attention for CY or counseling to help her young
son deal with the trauma of sexual abuse. Instead, she instructed CY not to tell
anyone about the abuse.
Yelvington, 2019 Ark. App. 337, at 7, 580 S.W.3d at 878.
In contrast, Megean and Brandon argue that MJ was in Christie’s legal care and
custody—not theirs—when the abuse occurred. Further, they rely on the fact that the
previous “true” finding that Michael committed sexual abuse was overturned on appeal in
2016. They both contend that Michael was not allowed back into the home after MJ’s
allegation became known in November 2018.
Megean contends that she was unaware of the abuse until law enforcement informed
her of it on November 8, 2018, and that when she was told, she immediately secured trauma
services and counseling for MJ. Brandon claims that when MJ disclosed the abuse to him
by asking “for a friend” about what to do, he was not aware that it was MJ who had suffered
the abuse. They claim, therefore, that their past behavior is not indicative of potential harm.
DHS and the attorney ad litem argue that no legal authority is cited for the
proposition that Yelvington is the only standard for potential harm. They contend that even
if it were, the Johnsons’ case is exactly like Yelvington because the appellant had failed to
protect her child from sexual abuse and failed to appeal the finding in the adjudication order.
Yelvington, 2019 Ark. App. 337, at 6, 580 S.W.3d at 878.
Megean also argues that because of the short duration of the case, she did not have
any meaningful opportunity to avail herself of services to address the other issues that arose
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regarding purported substance abuse and the home environment. Brandon also contends
that he and Megean had only three months between the adjudication order and the
termination hearing, which gave them little time to submit to, and comply with, services.
Brandon argues that there is no “past behavior” that indicates the children would be
at risk of harm upon the completion of services. He contends that no services were offered
during the protective-services case other than the purchase of cleaning supplies. He argues
that drug screens are not a remedial service and that he did not have a meaningful
opportunity to address the issues that actually brought the children into care, given that
DHS left the children in the home for five months following the last disclosure of sexual
abuse. He contends that the other issues in the family—environmental, drug abuse, mental
health, and domestic violence—are issues to be addressed with services. He claims that he
went multiple times to begin treatment, that he had begun to remedy his drug use, that he
had obtained employment, and that he had no pending criminal issues during the case.
DHS and the attorney ad litem contend that sufficient evidence supported the circuit
court’s best-interest finding and that termination of parental rights should be affirmed. For
potential harm, a circuit court is not required to identify actual harm, it must view the harm
in a forward-looking manner, and it may consider harm caused by lack of stability in a
permanent home. Gonzalez, 2018 Ark. App. 425, at 12, 555 S.W.3d at 921. Additionally,
evidence of a parent’s continued drug use or failure to comply with court orders constitutes
sufficient evidence of potential harm. Id. at 12–13, 555 S.W.3d at 921–22. Further, evidence
that supports a subsequent-factors finding also supports a potential-harm finding. E.g., Id. at
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12, 555 S.W.3d at 921; Rivera v. Ark. Dep’t of Human Servs., 2018 Ark. App. 405, at 15,
558 S.W.3d 876, 885.
We hold that the circuit court’s best-interest finding was not clearly erroneous.
Brandon admitted missing five drug-and-alcohol-assessment appointments and three hair-
follicle-test appointments. Both parents admitted that they had engaged in domestic
violence, continued to associate with inappropriate individuals, failed to maintain an
environmentally safe home, continued methamphetamine use, failed to maintain stable
employment, and failed to attend counseling. Further, DHS had offered them multiple
services in previous protective-services cases, and they failed to participate. Past behavior
may be considered a predictor of likely potential harm should the child be returned to the
parent’s care and custody. Gonzales, supra. Accordingly, we affirm.
Affirmed.
HARRISON and HIXSON, JJ., agree.
Dusti Standridge, for separate appellant Brandon Johnson.
James & Streit, by: Jonathan R. Streit, for separate appellant Megean Johnson.
Ellen K. Howard, Office of Chief Counsel, for appellee.
Kimberly Boling Bibb, attorney ad litem for minor children.
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