Michelle Debiasse and Mark Debiasse v. Arkansas Department of Human Services and Minor Children , 2022 Ark. App. 331 ( 2022 )

Cite as 2022 Ark. App. 331ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-22-52
MICHELLE DEBIASSE AND MARK Opinion Delivered September 14, 2022
DEBIASSE
APPELLANTS APPEAL FROM THE GARLAND COUNTY
CIRCUIT COURT
V. [NO. 26JV-19-239]
ARKANSAS DEPARTMENT OF HUMAN HONORABLE LYNN WILLIAMS, JUDGE
SERVICES AND MINOR CHILDREN
APPELLEES AFFIRMED
WAYMOND M. BROWN, Judge
Michelle Debiasse and Mark Debiasse bring separate appeals from the Garland County Circuit
Court’s order terminating their parental rights to their children, M.D., B.D., and K.B. Finding their
arguments either not preserved or without merit, we affirm the circuit court’s termination order as
to both appellants.
The Arkansas Department of Human Services (DHS) took emergency custody of M.D., B.D.,
and K.B. on September 13, 2019, following a report that at school, nine-year-old B.D. disclosed
sexual abuse by her mother’s boyfriend, Whitney Herbert. Michelle initially denied any knowledge
of the sexual-abuse allegations. She then admitted knowing that another adult male, Jason Halsey,
had touched B.D. Finally, Michelle also admitted that B.D. told her that Whitney had touched her
“privates” twice. “Due to the disclosed sexual abuse and failure to protect,” DHS placed a seventy-
two-hour hold on the children. Additionally, it was observed that there was animal feces on the
children’s beds, and B.D. had head lice. At the time of removal, the children were living with
Michelle. The circuit court entered an ex parte order for emergency custody on September 17,
placing custody of the children with DHS. A probable-cause order followed on September 20,
finding that probable cause for the children’s removal existed and continued to exist. The court also
found that Michelle knowingly, intelligently, and with understanding waived probable cause on the
record through her attorney. Michelle and Mark were ordered to follow the court’s orders and the
DHS case plan.
In an order entered on November 14, M.D., B.D., and K.B. were adjudicated dependent-
neglected as a result of sexual abuse, neglect, and parental unfitness. Specifically, Michelle failed to
take steps to protect B.D. from sexual abuse and allowed Whitney, the alleged abuser, to remain in
the home after B.D. had disclosed the sexual abuse. Michelle stipulated to the dependency-neglect
findings and agreed that any parental visitation with the children should occur upon the
recommendation of the children’s therapist. The goal of the case was established as reunification
with a concurrent goal of relative or fictive-kin placement. Michelle was ordered to complete a drug-
and-alcohol assessment and follow the recommendations thereof; participate in individual and family
therapy; participate in outpatient sex-offender treatment; submit to a psychological evaluation and
follow the recommendations thereof; submit to drug screens; participate in and attend all scheduled
visitation with the children; complete parenting classes; schedule and keep all appointments; obtain
and maintain a safe, suitable, and appropriate home for herself and the children; maintain an
environment free from illegal substances and other health and safety hazards; obtain and maintain
adequate income to support herself and the children; request transportation assistance from DHS
forty-eight hours in advance; cooperate with DHS and CASA; permit DHS and CASA to inspect their
home; answer the door when DHS or CASA visits; and participate in any service requested by DHS.
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For the purposes of the Arkansas Juvenile Code, Mark was determined to be the legal father of the
children because he was married to Michelle at the time of each child’s birth; the two were still
married at the time the children were removed. Michelle and Mark were ordered to maintain
consistent contact with the children; demonstrate stability and the ability to provide for the health,
safety, and welfare of the children; maintain consistent contact with DHS; and keep DHS informed
of their current address.
In its February 5, 2020 review order, the circuit court found Mark was served on or around
November 25, 2019 by personal service pursuant to Rule 4 of the Arkansas Rules of Civil Procedure;
Mark is a parent for purposes of the Arkansas Juvenile Code because he is and was married to the
biological mother at the time of the children’s births; and Mark did not contribute to the dependency-
neglect of the children because he has resided in another state for some time. The court entered into
evidence a report prepared by DHS worker, Carson Taylor; a report of Michelle’s psychological
evaluation; Michelle’s certificate of completion of parenting classes; and a release of information
permitting the children’s therapist to discuss progress with Michelle’s therapist. The court found
that due to safety concerns, supervised visitation was in the children’s best interest. The goal of the
case remained reunification with a concurrent goal of adoption/guardianship/permanent custody.
Michelle was found to have complied with the case plan and orders of the court. “Specifically, she is
participating in individual counseling, parenting classes, and random drug screens; she completed the
psychological evaluation. However, she has no income to support herself or the juveniles. The
mother has demonstrated guarded progress toward the goal of the case plan.” The court found Mark
in noncompliance with the case plan since he had no contact with either DHS or the children.
3
Visitation between Michelle and the children was held on February 20, 2020. That same
evening, B.D. was admitted into Pinnacle Point Hospital, where she remained for seven days.
Consequently, upon motion by the children, by and through their attorney ad litem, Kasi Hill Erwin,
an order suspending visitation was entered on March 16.
In an agreed review order entered on June 10, the circuit court found the parents unfit and
specifically stated,
The safety concerns that prevent trial placement, return of custody, or other placement with
the parents include: parents have not, cannot, or will not provide supervision necessary to
protect the juveniles from potentially dangerous harm; father is unwilling or is unable to meet
the juveniles’ need for food, clothing, shelter, and/or medical or mental health care; due to
the history of sexual abuse within the family, the juveniles’ safety remains an immediate
concern. Additionally, no contact orders issued in the mother’s criminal cases prevent
placement of the juveniles in her care.
....
The parents’ visitation shall be supervised by the Department or its designee and shall occur
at its reasonable discretion upon the recommendation of the juveniles’ therapist(s). Visitation
of all the juveniles with the mother shall not occur while there remain no contact orders in
place in case 26CR-20-264 and -265.
Although Michelle was found to have complied with the case plan and orders of the court due
to her completion of parenting education, participation in individual counseling, and random drug
screens, the court maintained she had no income to support herself or the children, and the condition
of her home was inappropriate for children. It was also noted that she had recently been criminally
charged for the abuse and neglect of the children that led to the present case. Mark was again found
to have not complied with the case plan and orders of the court. He had no contact with either DHS
or the minor children and had failed to demonstrate progress toward the case goal. The court found
that the services provided had not benefited Mark in remedying the issues that prevent the safe return
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of the children because he had not participated in the services provided to him. The parents were
again ordered to comply with the previous orders of the court.
A permanency-planning hearing was held on September 9. At that time, the circuit court
stated that it could not
find that any parent is complying with the established case plan and orders of the Court,
making significant and measurable progress toward achieving the goals established in the case
plan, or diligently working toward reunification or placement in the home of the parent. No
parent has met their burden to demonstrate genuine, sustainable investment in completing
the requirements of the case plan and following the orders of the Court in order to authorize
a plan to return or be placed in the home as the permanency goal.
The order authorized a plan for adoption with DHS filing a petition for termination of parental rights
of both parents.
Accordingly, on October 8, DHS filed a petition seeking to terminate Michelle’s and Mark’s
parental rights, alleging multiple statutory grounds and stating that termination was in the best
interest of the children.
After granting multiple continuance motions, the termination-of-parental-rights hearing was
ultimately held. Following the October 27, 2021 hearing, the circuit court entered an order
terminating both Michelle’s and Mark’s parental rights to M.D., B.D., and K.B. Both Michelle and
Mark timely appeal from the termination order.
This court reviews termination-of-parental-rights cases de novo.1 Grounds for termination
of parental rights 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. 2 The
1 Dinkins v. Ark. Dep’t of Hum. Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
2 Tillman v. Ark. Dep’t of Hum. Servs., 2015 Ark. App. 119.
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appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and
convincing evidence is clearly erroneous.3 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. 4 In resolving the clearly erroneous question, we give due
regard to the opportunity of the circuit court to judge the credibility of witnesses.5
To terminate parental rights, a circuit court must find by clear and convincing evidence that
termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the
juvenile will be adopted if the termination petition is granted and (2) 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.6 The circuit court must also find by clear and convincing evidence that one or more
statutory grounds for termination exist.7 Proof of only one statutory ground is sufficient to terminate
parental rights.8 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.9 The intent behind the termination-of-parental-rights statute is to
3 Id.4 Id.5 Id.6 Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Supp. 2021).
7 Ark. Code Ann. § 9-27-341(b)(3)(B).
8 Tillman, supra.
9 Id.
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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. 10
We will address Michelle’s separate appeal first. On appeal, she does not challenge the circuit
court’s finding that termination of her parental rights was in the children’s best interest. Michelle
argues only that the evidence was insufficient to support the statutory grounds for termination.
The circuit court terminated Michelle’s parental rights on the following grounds: failure to
remedy; failure to provide significant material support; failure to maintain meaningful contact;
subsequent factors; and aggravated circumstances. Although the circuit court terminated Michelle’s
parental rights on five statutory grounds, only one ground is necessary to affirm the termination.11
A circuit court may terminate parental rights on the basis of the aggravated-circumstances
ground if there is little likelihood that further services will result in successful reunification. 12 A
finding of aggravated circumstances does not require that DHS prove that meaningful services toward
reunification were provided.13 With regard to the aggravated-circumstances ground, in its
termination order, the circuit court found “there is little likelihood that services to the family will
result in successful reunification as there is no other service that could be provided to the parents that
has not already been provided or offered.” Michelle asserts the court failed to state “why” continued
services to the family was unlikely to result in successful reunification. She contends that she
10 Ark. Code Ann. § 9-27-341(a)(3).
11 Redden v. Ark. Dep’t of Human Servs., 2019 Ark. App. 539, 589 S.W.3d 401.
12 See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(A)–(B)(i).
13 Cloninger v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 282.
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complied with the case plan, attended counseling, completed a psychological evaluation, completed
parenting education, and participated in random drug screens and home visits. Additionally, she
asserts that DHS failed to visit her house in the nine months preceding the termination hearing.
Michelle argues that due to the lack of regular contact, DHS had no basis to support its opinion that
nothing in the home had changed during that time period.
This case began when B.D. disclosed sexual abuse. During the pendency of this case, Michelle
was criminally charged for her role in B.D.’s sexual abuse. On the date of the termination hearing,
Michelle’s criminal charges remained unresolved. DHS caseworker Washburn testified there had
been no visitation between Michelle and the children due to a no-contact order in place because of
the criminal charges. Washburn stated that while the charges remain outstanding, the children could
not be placed with Michelle. Further, Washburn testified that Michelle had not acknowledged the
trauma she caused the children and that no further services could be offered to reunify Michelle with
her children. A caseworker’s testimony that there were no further services to offer the parent that
would result in reunification is sufficient to support an aggravated-circumstances finding.14
While Michelle argued that termination of her parental rights was erroneous because she
complied with the case plan, it is not the completion of the case plan that is determinative; instead,
it is whether the completion of the case plan resulted in making the parent capable of caring for the
child.15 In this case, there was a no-contact order between Michelle and the children, Michelle failed
14 Collier v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 100, 641 S.W.3d 67.
15 See Salinas v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 272, 599 S.W.3d 728.
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to achieve stable housing and income, and she had pending charges that involved her children, all of
which rendered her incapable of caring for her children.
Moreover, despite Michelle’s argument that the circuit court’s aggravated-circumstances
finding was clearly erroneous because DHS failed to maintain contact and make regular visits, we
find no error. A finding of aggravated circumstances does not require DHS to prove that meaningful
services were provided.16
Although the circuit court terminated Michelle’s parental rights on five statutory grounds,
only one ground is necessary to affirm the termination. 17 Therefore, because we affirm the circuit
court’s finding of aggravated circumstances, it is unnecessary to address the evidence supporting the
remaining statutory grounds on which termination of Michelle’s parental rights was based. Also,
because Michelle raised no challenge as to the circuit court’s finding that termination was in the
children’s best interest, it is waived on appeal.18
Before turning to Mark’s arguments pertaining to the sufficiency of the evidence supporting
termination of his parental rights, we must first address threshold issues.
Mark asserts that he was identified by DHS as the legal father of the children at the outset of
the case because he was married to Michelle when each child was born, and they remained married
at the time the children were removed from Michelle’s custody. He argues that because of this, he
had a right to appointed counsel from the beginning of the proceedings. Mark further argues that the
16 Cloninger, supra.
17 Redden v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 539, 589 S.W.3d 401.
18 Owen v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 413, 587 S.W.3d 586.
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circuit court erred in terminating his parental rights because DHS failed to (1) communicate with
him; (2) provide him with the case plan and pleadings; and (3) secure his attendance or participation
in any of the hearings prior to the termination hearing. While he now emphatically makes these
arguments—right to counsel, lack of service, and a multitude of due-process complaints claiming
that although he was identified as a party, he was not treated as a party in the case—Mark failed to
preserve any of the issues for our review. He acknowledges that the issues were not preserved but
contends that it was the circuit court’s duty to protect his due-process rights. We will not consider
an argument, even a constitutional one, raised for the first time on appeal. 19
For his next point on appeal, Mark contends that DHS failed to prove the statutory grounds
relied on to support the termination of his parental rights. In addition to the five grounds relied on
to support the termination of Michelle’s parental rights, the circuit court also found that sufficient
evidence was presented to support the termination of Mark’s parental rights on the abandonment
ground.
As previously stated, only one ground is necessary to affirm the termination of parental
rights.20 For our purposes, we will address the termination of Mark’s parental rights on the finding
that sufficient evidence supported the aggravated-circumstances ground.
At the time of the termination hearing and for a large portion of the case, Mark was
incarcerated in New Jersey on charges related to child pornography. In Kohlman v. Arkansas Department
of Human Services,21 the court found that Kohlman’s criminal misconduct and incarceration for the
19 Jones v. Ark. Dep’t of Hum. Servs., 361 Ark. 164, 205 S.W.3d 778 (2005).
20 Redden, supra.
21 2018 Ark. App. 164, 544 S.W.3d 595.
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majority of the case served as an impediment to successful reunification sufficient to support a finding
of aggravated circumstances.
Further, the evidence demonstrated that Mark had never met the youngest child, K.B., and
had not visited the other children in several years. Due to his out-of-state incarceration, DHS testified
that there were no services it could provide to achieve reunification. An out-of-state parent’s failure
to contact his children throughout the case is sufficient evidence to support an aggravated-
circumstances finding.22 A finding of aggravated circumstances is supported if there is testimony that
no additional services could be offered to make the parent a fit and appropriate parent. 23
To the extent Mark argues that the aggravated-circumstances ground requires DHS to prove
that it provided services, his argument fails. The law is clear “a finding of aggravated circumstances
does not require that DHS prove that meaningful services toward reunification were provided.” 24
For his final point, Mark challenges the circuit court’s finding that termination of his parental
rights was in the best interest of the children. An analysis of best interest includes consideration of
the likelihood the children will be adopted and of the potential harm caused by returning custody of
the children to the parent.25 Mark does not specifically take issue with either the adoptability or the
potential-harm prong. Instead, he argues the circuit court’s finding of best interest was clearly
erroneous because DHS’s failure to contact him and provide him due process resulted in a complete
22 Louissaint v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 494, 611 S.W.3d 709.
23 See Anderson v. Ark. Dep’t of Hum. Servs., 2011 Ark. App. 791, 387 S.W.3d 311.
24 Cloninger, supra.
25 Norton v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 285.
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failure to inquire about any relatives of his for potential relative placement. He contends that DHS’s
failure to consider familial relationships is against the public policy of the state to preserve and
strengthen family ties. However, because Mark failed to raise this argument below, it is not
preserved for appellate review.26 Accordingly, we affirm the circuit court’s finding that termination
of Mark’s parental rights was in the best interests of the children.
Because the findings of the circuit court are supported by clear and convincing evidence and
because certain arguments on appeal were not preserved for our review, we affirm the termination
of both Michelle’s and Mark’s parental rights.
Affirmed.
VIRDEN and GRUBER, JJ., agree.
Tabitha McNulty, Arkansas Commission for Parent Counsel, for separate appellant Mark
Debiasse.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant Michelle
Debiasse.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Janet Lawrence, attorney ad litem for minor children.
26 Cole v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 481, 611 S.W.3d 218.
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