BRANDON J. HARRISON, Judge.
Tomeko Sharks appeals the Pulaski County Circuit Court's decision to terminate his parental rights to his child, one-year-old D.S. He argues that terminating his parental rights was not in D.S.'s best interest and that the Arkansas Department of Human Services (DHS) failed to prove a statutory ground to support the termination. We affirm the circuit court's decision.
In December 2014, DHS took emergency custody of D.S. after someone had reported that Sharks was swinging four-month-old D.S. in a threatening manner at the Pulaski County Courthouse. Police officers arrested Sharks for public intoxication after observing him behave erratically and telling them he would kill D.S. and D.S.'s mother if he had to. The circuit court adjudicated D.S. dependent-neglected in February 2015. The court found D.S.'s putative father Tomeko Sharks's "use of alcohol with his prescription medication ... make him an unfit parent."
The court also appointed Sharks a guardian ad litem after he "displayed behavior that concerned the Court." Because of this behavior, the court ordered Sharks to undergo a drug screen, which was positive for amphetamines. Sharks refused the alcohol portion of the drug test.
A review order was entered June 2015. There, the court wrote,
In its September 2015 permanency-planning order, the court found Sharks to be D.S.'s legal father based on DNA evidence and appointed an attorney to represent him. The court also noted that Sharks "has been incarcerated in Pulaski County Jail since August 16 and expects to be released October 16." While the court noted that Sharks's visits with D.S. were "very appropriate," it also stated that Sharks "did not attend all of the visits before his incarceration, and has missed more visits than he attended." Sharks had not submitted to random drug screens as ordered or provided a release for DHS to obtain his medical records from the Veterans Affairs. The order states, "The court believes [Sharks] has been in individual counseling and substance abuse treatment at the V.A.; but, there is no documentation to support that claim nor to demonstrate the progress made in treatment."
DHS petitioned for termination of parental rights in October 2015. The petition alleged that terminating Sharks's parental rights was in D.S.'s best interest and that two statutory grounds for termination existed under Arkansas Code Annotated sections 9-27-341(b)(3)(B)(vii)(a) (Repl. 2015) (other-factors-arising ground) and 9-27-341 (b)(3)(B)(ix)(a)(3)(B)(i) (aggravated-circumstances ground). Sharks was not satisfied with his appointed attorney, so the circuit court granted Sharks's request for
The court held a termination hearing in January 2016 and entered a final order terminating Sharks's parental rights in February 2016. The termination order, in part, states,
A circuit court's order that terminates parental rights must be based on clear and convincing evidence. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction that the allegation has been established. Pratt v. Ark. Dep't of Human Servs., 2012 Ark.App. 399, 413 S.W.3d 261. Proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep't of Human Servs., 2010 Ark.App. 240, 374 S.W.3d 205.
We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep't of Human Servs., 2012 Ark.App. 209, 396 S.W.3d 272. But we will not reverse the circuit court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we give due deference to the opportunity of the circuit court to assess the witnesses' credibility. Id.
Sharks argues first that DHS produced "bare minimum" evidence of D.S.'s adoptability and that the court's finding that "there is a very good likelihood" that D.S. will be adopted is clearly erroneous. Sharks further contends that it was unclear that Pride "even understood just how severe D.S.'s medical issues were" and did not explain what "characteristics" she used in her database search. In Sharks's mind, this renders the court's adoptability determination "absolutely legally infirm." He asks us to reverse the termination decision because DHS produced insufficient evidence of D.S.'s adoptability.
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. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)-(ii). While the likelihood of adoption must be considered by the circuit court, that factor is not required to be established by clear and convincing evidence. Hamman v. Ark. Dep't of Human Servs., 2014 Ark.App. 295, at 9, 435 S.W.3d 495, 501.
We agree with Sharks that one particular finding in the circuit court's order is factually incorrect. The termination order states, "Danyetta Pride, the adoption specialist, testified that there is a very good likelihood that [the] juvenile will be adopted if the petition to terminate parental rights is granted." But Pride did not testify about a "very good likelihood" that D.S. would be adopted. She did, however, testify that there were 359 potential families willing to care for a child with D.S.'s age, race, and characteristics. When asked if there were "positive facts" that supported adoption, Pride answered, "Yes, a young child with no major behavior issues, no mental health problems. He has some medical issues, but they're being addressed so, yes."
The issues surrounding D.S.'s medical needs were developed during the termination hearing. D.S.'s foster mother described D.S. as the most "time-intensive" child she had cared for. She classified the level of involvement with D.S. every day as a "full-time job" between his hours of therapy and medical appointments per week. She said that she had taken D.S. to the doctor 20-25 times, not including therapy he receives in the home multiple times a week. D.S. also had to go to the emergency room because of reactive-airway disease and when he gets respiratory infections "he's not like the average child" and has difficulty breathing.
DHS caseworker Jessica Warren testified that D.S. has a swallowing dysfunction, acid reflux, physical delays and cognitive delays but that adoption specialist Pride knew about those issues. Warren also agreed that Sharks was aware of D.S.'s medical issues and could appropriately care for D.S. "if he's not under the influence." When asked what the potential harm of returning D.S. to his parents would be, Warren replied:
Warren explained that Sharks had demonstrated stability only within the last month and a half of the case and that the Department would need to see more stability and sobriety before D.S. could safely be returned.
We hold that the court's ultimate conclusion that terminating Sharks's parental rights was in D.S.'s best interest is not clearly erroneous. The polestar consideration is that, after consideration of all relevant circumstances, a termination of parental rights is in the child's best interest. See McFarland v. Ark. Dep't of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005). While no witness in this case testified that D.S. "was adoptable" or said that there was a "very good likelihood" of adoption, it is clear enough from the record that the circuit court did what it was statutorily required to do: consider the likelihood that one-year-old D.S. would be adopted. While Sharks may have been able to care for D.S. if he remained sober, the circuit court could find that D.S.'s need for permanency through adoption outweighed Sharks's need for time to walk the "long path to becoming a fit parent." We are not firmly and definitely convinced that a mistake was made and affirm on this point.
Sharks also argues that DHS produced insufficient evidence of potential harm in returning the child to him. Potential harm is a factor that the circuit court must consider in assessing the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii). The court is not required to find that actual harm would ensue if the child were returned to the parent nor to affirmatively identify a potential harm. Dowdy v. Ark. Dep't of Human Servs., 2009 Ark.App. 180, 314 S.W.3d 722. The potential-harm analysis is to be conducted in broad terms. Thomsen v. Ark. Dep't of Human Servs., 2009 Ark.App. 687, 370 S.W.3d 842.
Here, the circuit court did not err in its consideration of the potential-harm factor. Although Sharks tried to rehabilitate himself in the eleventh hour, these improvements need not be necessarily credited by the circuit court and do not necessarily outweigh evidence of prior noncompliance. See Henderson v. Ark. Dep't of Human Servs., 2010 Ark.App. 191, 377 S.W.3d 362. By the time Sharks had been released from jail and had begun serious rehabilitation efforts, D.S. had been in DHS custody for nearly a year. Over the course of the case, Sharks tested positive for alcohol, was arrested at least twice for public intoxication, and was inconsistent in visiting D.S. While Sharks's purposeful efforts to complete most of the significant aspects of the case plan in the six weeks before the termination hearing are admirable, they do not warrant reversal. Had Sharks put forth those efforts earlier in the case, a termination may have been prevented, but Sharks's efforts to get his life together were still a work in progress at the time of the termination hearing. Given Sharks's history of mixing prescription medications and alcohol, his arrests for public intoxication, and his odd behavior during previous hearings, the court was not clearly wrong to find a likelihood of potential harm if D.S. was to return to his custody. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Thompson v. Ark. Dep't of Human Servs., 2010 Ark.App. 167, 374 S.W.3d 143. Sharks's behaviors over the course of the entire case do not show enough stability and sobriety to render the court's finding that Sharks posed a risk of potential harm to D.S. clearly erroneous.
Sharks also argues that the circuit court's statement that a "different person has arrived too late and has done too little before now to show his commitment to complying with the case plan and court orders to become a fit parent who can safely be around his child and even be the parent who has custody" is clearly prohibited by Prows v. Arkansas Department of Health & Human Services, 102 Ark.App. 205, 283 S.W.3d 637 (2008). In Prows we held that a circuit court erred as a matter of law when it refused to consider or weigh evidence about a parent's recent improvements in a termination-of-parental rights case. There, the circuit court stated from the bench that it was required to terminate a parent's rights if a child was not able to go home with the parent immediately after the hearing. We said that the termination statute requires the circuit court to consider a parent's compliance during the entire dependency-neglect case and the evidence presented at the termination hearing in deciding whether termination is in the child's best interest. Ark. Code Ann. § 9-27-341(a)(4)(B). Here, the circuit court clearly considered and weighed Sharks's compliance throughout the entire case and did not lightly reject his last-minute efforts. Because the court considered and weighed everything and excluded nothing, there is no reversible error under Prows. We affirm on this point.
To terminate parental rights only one statutory ground is needed. Here the circuit court terminated Sharks's parental rights using the "other factors" ground:
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
Sharks argues that the court erred when it terminated his rights because "there is nothing in the record to demonstrate that the issues addressed by the case plan were not remedied, or at least so insufficiently addressed that termination was warranted."
The circuit court did not err in terminating Sharks's parental rights on this statutory ground. Subsequent factors bearing on Sharks's parental fitness arose after the filing of the original dependency-neglect petition in this case. These included a positive alcohol screen, missed drug screens, and Sharks's arrests and incarceration on public-intoxication charges. Sharks also did not comply with the court's orders to obtain a psychological evaluation and a drug-and-alcohol assessment until just days before the termination hearing. He did not have a stable living situation for the court to place D.S. with him, not when the termination hearing convened. Sharks's excuse of not understanding what was required of him is a credibility determination that the circuit court was permitted to make. While there was evidence that Sharks was complying with the case plan, the court did not have to ignore that his compliance did not begin until the "eleventh hour." See Camarillo-Cox v. Ark. Dep't of Human Servs., 360 Ark. 340, 354, 201 S.W.3d 391, 400 (2005). The circuit court did not have to credit Sharks's statement that he did not know that he had been ordered to cooperate with DHS and participate in
Affirmed.
ABRAMSON and KINARD, JJ., agree.