Cite as 2017 Ark. App. 319

ARKANSAS COURT OF APPEALS

DIVISION I 

No. CV-16-1155

LISA MICHELLE CHOATE AND 

RODERICK CHOATE

 

 APPELLANTS 

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES AND MINOR 

CHILDREN

 APPELLEES 

Opinion Delivered May 17, 2017

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT 

[NO. 72JV-15-583] 

HONORABLE STACEY ZIMMERMAN, 

JUDGE

REVERSED

DAVID M. GLOVER, Judge

 

By order entered October 14, 2016, the trial court terminated the parental rights of 

Roderick (Rod) and Lisa Michelle Choate to their two minor children, I.C. and K.C. Both 

parents appeal from that decision, presenting separate briefs. We reverse the termination of 

parental rights with respect to each.

To put this case in context, we have gleaned the following facts from a confusing 

record. On September 25, 2011, Lisa and Rod were married in Tulsa, Oklahoma. In August 

2014, they separated, and Lisa and the children went to live with Lisa’s parents, the Hebards, 

in Fayetteville, Arkansas, where she filed for divorce. On February 13, 2015, the divorce 

decree was entered. It gave Lisa custody of the children and provided strictly supervised 

visitation to Rod. In March 2015, Lisa and the children left the Hebards’ house and went 

to live with Rod’s parents in Tulsa. Rod was not living in the same house at the time. By 
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June 12, 2015, however, the couple was living together again in Oklahoma with the 

children when Oklahoma authorities applied to take the minor children into emergency 

custody. The Oklahoma application was accompanied by a “Declaration in Support of 

Verbal Application and Verbal Emergency Custody Order,” which provided in part: 

2. Pursuant to an assessment of child safety conducted by the Department 

pursuant to a referral, the Department determined the children to be unsafe and in 

need of immediate protection due to the following imminent safety threat: OKDHS 

was involved due [to] concern of Threat of Harm due to [K.C. and I.C.] regarding 

Mr. Choate’s admission of having an erection while holding his daughter, [K.C.], 

walking around naked in front of his daughters and him admitting to watching child 

pornography. Ms. Choate has expressed to several people, including Arkansas CPS 

and law enforcement that she has had concern of him molesting their daughters.

 

Though the children were taken into emergency custody by Oklahoma officials, by June 

15, 2015, they had been placed with the maternal grandparents in Arkansas pending transfer 

of the case to Arkansas. On the record before us, a criminal investigation seems to have 

arisen, but there is no evidence of any criminal charges ever having been pursued regarding 

any sexual-abuse allegation or child pornography.

According to an order entered July 9, 2015, by the Arkansas trial court, a telephonic 

hearing was held that date between it and the Oklahoma judge who had first exercised 

emergency jurisdiction over the children. As a result of the hearing, jurisdiction was found 

to lie in Washington County, Arkansas, and a date was set for the adjudication hearing. 

A probable-cause order was entered July 15, 2015, in which the trial court found 

probable cause existed to enter the ex parte order for emergency custody; it still existed to 

protect the children, necessitating placement with the maternal grandparents, “because the 

court has concerns that mother violated the [divorce decree] and allowed the children to be 

[alone] with the father in Tulsa rather than supervised.”
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On August 24, 2015, the trial court entered an adjudication order finding the 

children dependent-neglected. The adjudication order is a typical form document and in 

paragraph 3, the finding of dependency-neglect was found to be a result of “neglect” and 

“parental unfitness” (designated by check marks next to those terms). No check marks 

appeared next to “abandonment,” “abuse,” “sexual abuse,” or “sexual exploitation,” which 

were the remaining options available on the form. The form adjudication order further 

provided in paragraph 3 that the finding was based on “the parties’ agreement to a finding 

of dependency-neglect because the allegations in the petition and affidavit are true and 

correct, based on mother’s lack of stability in housing and employment and failure to protect 

by violating the visitation order [apparently referencing the visitation order contained in the 

parties’ divorce decree requiring supervised visitation with the children for Rod] and father’s 

prior addiction to pornography and lack of stability in employment and housing.” The court 

ordered Rod’s visitation with the children to be supervised by DHS. Lisa was allowed to 

continue living in the Hebards’ house, along with the children; her “visitation” with the 

children was to be supervised by the Hebards; and she was not to be left alone with the 

children. By order entered October 30, 2015, the trial court found Lisa had “made material 

progress through counseling, working with Children’s House, and is now employed,” and 

she “may be left alone with the children [for short periods per day, not to exceed three 

hours] so that the grandparents may have some respite time.”

In the January 13, 2016 review order, the trial court found Lisa had not complied 

with all the court orders and the case plan; specifically, that she needed to address her mentalhealth issues and obtain appropriate housing if she did not choose to continue living with 
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her parents; that she had completed her parenting classes; that she had attended some IFS 

and family counseling; and that she had made some progress toward alleviating or mitigating 

the causes of the juveniles’ removal from the home and completing the court orders and 

requirements of the case plan. In the same review order, the trial court found Rod had 

complied with all the court orders and the case plan; specifically, that he had maintained 

housing and employment in the Tulsa area; he was attending counseling to address his 

addiction to pornography; he was taking his medications as prescribed; he had completed 

his parenting classes; he had been consistent in his visitation with the children twice 

monthly, and he had made much progress toward alleviating or mitigating the causes of the 

juveniles’ removal from the home and completing the court orders and requirements of the 

case plan. Rod’s visitation was to remain supervised by DHS. Lisa was allowed to have 

unsupervised visitation at the Hebards’ discretion. 

On June 6, 2016, the permanency-planning-hearing order was entered. In it, the 

trial court authorized a plan for adoption with DHS filing a petition for termination of 

parental rights because “[n]either parent has made significant, measurable progress toward 

achieving the goals established in the case plan,” “[n]either parent has diligently worked 

toward reunification,” and “[t]he girls need a consistent, structured home life,” which the 

trial court found the parents had demonstrated they could not provide.

On September 9, 2016, the termination hearing was held in Washington County, 

Arkansas. Numerous witnesses testified in a lengthy hearing. Melissa Bedford, who was a 

counselor at Dayspring Behavioral Healthcare (Children’s House), was among the witnesses 

who testified. She stated she had served as K.C.’s counselor from September 21, 2015, to 
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the date of the hearing, and as I.C.’s counselor since August 2, 2016. She explained K.C.’s 

diagnosis was posttraumatic stress disorder; suspected child sexual abuse; parent-child 

relational problem; child neglect; and developmental disorders. Bedford testified that K.C., 

who turned four in June before the September hearing, had engaged in play that caused her 

concern, e.g., she had put dolls in the sand and said they weren’t supposed to see, with a 

male figure standing over saying they weren’t supposed to see or know; she put a 3-D puzzle 

figure in the bathtub and wanted it to be naked; she became upset when she couldn’t get 

the clothes off; and she played with baby dolls and wanted them to be naked. After discussing 

modesty with her, Bedford said K.C. made progress and wanted her dolls dressed. 

Bedford observed K.C. never mentions Rod, and never says “my dad,” but does ask 

when she’s going to see her mom. She said Rod never participated in family therapy; she 

also acknowledged it was never ordered. 

Bedford testified Lisa had been more cooperative since the last hearing; before then, 

Lisa showed up about 75 percent of the time; on two occasions, in meetings, Lisa had 

become upset with her mother, Linda Hebard, and said she could not meet with the girls 

and left; Lisa had made some progress; Lisa was starting to use conscious discipline 

techniques and they had engaged in family-play therapy. 

Bedford’s recommendation was for K.C. to either remain with the Hebards 

(grandparents) or be placed in an adoptive family. She did not feel as if Lisa had worked 

through enough of her parenting issues; and Lisa had made comments about Rod’s being 

suicidal, and that concerned Bedford about the children’s safety. 
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Bedford acknowledged: I.C. had been her patient for only about a month, since 

August; I.C. had a new development in the last couple of weeks going from very 

oppositional and aggressive to being very concerned about noises in the hallway; and I.C. 

had become very agitated a couple of days ago at the school, wanting the teachers to sit 

between her and the doorway—concerned a monster was going to get her. Bedford’s 

recommendation for I.C. was that she remain with K.C. and either live with the maternal 

grandparents or an adoptive family. 

Bedford explained that sexual abuse was suspected with both children. She stated, 

however, the only thing that concerned her about I.C. was “last year” the teachers contacted 

her to come observe I.C. during nap time, and I.C. was touching herself and “moaning 

inappropriately.” Regarding K.C., the suspected sexual abuse had to do with the “sexual 

acting out in her play,” which Bedford said she has not been doing lately.

Bedford stated neither K.C. nor I.C. appeared to be afraid of Lisa or Rod, although 

K.C. pretended to put on some wings one time and said she needed to get away from dad. 

Bedford acknowledged Linda Hebard could be overbearing and that it would be hard for 

Lisa and Linda to live together in the same house. 

Miranda Collins, a family-service worker for Washington County DHS, testified at 

length. It was her recommendation to terminate the parental rights of Lisa and Rod. She 

said the children had been placed with the grandparents, Linda and John Hebard, but this 

was not a potential adoptive placement. She also testified the children were adoptable. She 

gave very glowing descriptions of the girls. She testified as follows. Another family member 

might serve as a possible placement, maybe a long-term placement, but that person lived 
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out of state; if the court did not terminate parental rights, DHS would be able to pursue an 

ICPC home study; she did not believe K.C. and I.C. would be safe if they were returned 

to Rod’s custody given “the history and the ongoing concerns with his porn addiction and 

definitely the testimony of the therapist today”; and the concern about placement with Lisa 

was that she had remarried Rod earlier in the year and did so even after he admitted having

the porn addiction. 

Collins indicated the parents were in partial compliance with the case plan and court 

orders; she had not been able to see the conditions of the couple’s home because they lived 

out of state; and she also had not been able to verify Lisa was taking her prescribed 

medication to control her anxiety and depression. Collins said she did not feel either parent 

had demonstrated they could protect the children and keep them safe from harm. 

On cross-examination, Collins acknowledged she had reported that Lisa had not 

maintained clean and stable housing despite her having never been to the home because she 

could not cross state lines; that the same was true with Rod. She further acknowledged she 

had also reported Lisa had not maintained stable employment while being aware Lisa was 

on disability. She also reported Rod had not maintained stable employment though she 

knew he had been employed at Dairy Queen; she did so because his hours vary. Collins 

confirmed, “Everything I put down that they have not done, is not stuff I really know.”

Collins further confirmed: she did not know the exact address of Lisa’s sister, who 

might want to adopt the children; she had not talked to Rod’s or Lisa’s counselors; she had 

not contacted Rod or Lisa since becoming the caseworker; Lisa and Rod contacted her 

weekly but she had never called them; she had been the caseworker for two months; Rod 
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8 

was attending individual counseling; and Rod took his parenting classes, which he paid for 

himself.

According to Collins, the girls came into care because Lisa allowed the girls to be 

around Rod unsupervised; the situation had not been remedied; and instead Lisa remarried 

and moved in with Rod, who was not supposed to have any unsupervised contact with the 

children. On further cross-examination, she acknowledged she did not know the names of 

any people who had ever seen Rod alone, i.e., unsupervised, with the girls. 

Lisa Choate testified as follows. She was prepared to take the children home; her 

apartment had plenty of room and was clean and safe; she had lived there since February of 

“this year” and her husband had lived there since December of “last year”; her husband had 

been employed at Dairy Queen for over a year; she was on disability; they had financial 

stability; she attended counseling every Tuesday, and she and Rod went twice a month for 

visitation at DHS; she had attended every visitation; Rod had been going to Celebrate 

Recovery for over two years; she did not believe DHS had provided much assistance with 

services to get her daughters back; and she did not believe Rod had abused the children and 

if she did, she would not be with him. 

Lisa testified that if the court told her that day she could have the girls back if she 

moved out and divorced Rod, she would not do it. She recounted she has been reunited 

with Rod since February 2016. 

Lisa acknowledged when she and Rod divorced, there was a court order that said he 

could have only supervised visits; she testified he was never around the children 

unsupervised after the date of the divorce decree. She explained the reason she didn’t feel 
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9 

she should have to give up her husband or her children was because she is convinced “he’s 

done nothing wrong”; and she said the girls do not ever have a problem being around Rod 

at the visits. 

Rod Choate testified he had been seeing Salley Sutmiller at the Christian Family 

Institute since September 2014, and the court had asked for documentation of his counseling 

and therapy sessions at the previous hearing. Rod then said that he had brought the 

requested documentation with him. The attorney ad litem objected based on hearsay; the 

trial court sustained the objection but allowed the evidence to be proffered. 

Rod stated he is in Celebrate Recovery for an adult-porn addiction and he had been 

addiction free for two years. He explained the steps he had taken to ward off any possible 

addiction urges. He stated he had never been with his girls unsupervised since the divorce; 

his girls did not seem to have a problem being around him; they called him dad and told 

him they loved him; he took twelve hours of parenting classes; his kids would not be in 

danger if they came to live with him and Lisa; he had never shown porn to his kids; he had 

one “slip-up” a couple of months ago, but talked to his therapist at the very next meeting; 

and the slip-up involved adult pornography, not child pornography. He acknowledged his 

previous statement to the court that he had viewed child pornography in 2009, but did not 

care for it and moved on. He testified he was not suicidal. 

David Choate, Rod’s father, who also lives in Tulsa, Oklahoma, testified he has lived 

there for twenty-six years; he had regular contact with Rod; he believed Rod had made 

progress on his sexual-addiction issues; he did not believe he was a danger to the children; 
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he knows his son pretty well and does not think he is the kind of guy who would sexually 

abuse his own children; and if he thought Rod would, he would not be there.

Linda Hebard, Lisa’s mother and the children’s maternal grandmother, testified the 

children had been with her since July 15, 2015; they were doing very well; I.C. did have a 

severe urinary tract infection, as Lisa stated, but she could not say if that was why I.C. had 

been touching herself; she had touched herself on other occasions; I.C. made lots of body 

movements with her hips—not like a little girl; it was disconcerting to watch; she had 

concerns about the girls being returned to their mother; she thought Lisa showed more 

affection to I.C. and that K.C. was aware of it; K.C. did not keep clothes on her dolls; she 

had concerns about the girls being placed with Rod; Lisa had recently said, “You all don’t 

have to go home to the wrath of Rod,” talking about his temper; she had witnessed Rod’s 

lack of control in his temper; she did not think the girls would be safe; the children had 

improved socially and emotionally since being with her and her husband, but that I.C. had 

become very anxious in the last month; I.C. talked about somebody coming to the door, it 

was strange behavior, and she did not know why it had started. 

Hebard believed both girls were adoptable, and they needed to be together. Along 

those lines, she said it was her other daughter who was the family member interested in 

adopting the girls; her other daughter had five children, two of whom are autistic; she did 

not even know if that daughter had a home to live in; and she did not think the other 

daughter would pass a home study. It was Hebard’s opinion that even if Rod were gone, 

she did not believe Lisa should have the girls because she did not have the stability, interest, 

or ability to take care of them financially or emotionally. 
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Lisa Choate then took the stand again to respond to her mother’s testimony. She 

testified when she talked about Rod’s wrath, it was because there is animosity between her 

parents and Rod; Rod knew her mother was overbearing and controlling; he had to deal 

with her (Lisa) crying every time she came home on Tuesdays; his wrath was not directed 

at her (Lisa); it was directed at her mom; she was never worried that his wrath would be 

directed at the girls; and she (Lisa) had an order of protection against Rod until April 2015 

because, during the investigation, she did not know whether he was a threat, and Detective 

O’Dell and Michael Fitch of Children’s Services in Arkansas asked her to get the protective 

order. 

Following the termination hearing, the trial court entered one order terminating the 

parental rights of both parents. In it, the court found that DHS had proved two statutory 

grounds by clear and convincing evidence—“failure to remedy” and “subsequent factors.” 

Ark. Code Ann. § 9-27-341 (Repl. 2015). After conducting our de novo review, we are 

left with a definite and firm conviction that the trial court made a mistake.

I. The Termination of Rod Choate’s Parental Rights

Rod’s basic contention is that the trial court clearly erred in terminating his parental 

rights. We agree. 

We review termination-of-parental-rights cases de novo. Guthrey v. Arkansas Dep’t 

of Human Servs., 2017 Ark. App. 19, 510 S.W.3d 793. The grounds for termination must 

be proved by clear and convincing evidence. McPherson v. Arkansas Dep’t of Human Servs., 

2013 Ark. App. 525. When the burden of proving a disputed fact is by “clear and convincing 

evidence,” the question on appeal is whether the trial court’s findings that the disputed fact 
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was proved by clear and convincing evidence is clearly erroneous, giving due regard to the 

opportunity of the trial court to judge the credibility of the witnesses. Id. We reverse a trial 

court’s decision to terminate parental rights only when it is clearly erroneous. Guthrey, supra. 

A finding is clearly erroneous when, although there is evidence to support it, the reviewing 

court on the entire evidence is left with a distinct and firm conviction that a mistake was 

made. Id. 

A. Failure to Remedy Ground. 

In the termination order, the trial court found in pertinent part: 

a. The juveniles have been adjudicated by the Court to be dependentneglected and have continued out of the custody of the parents for twelve 

(12) months and despite a meaningful effort by the Department to rehabilitate 

the parents and correct the conditions which caused removal, those conditions 

have not been remedied by the parents (see A.C.A. § 9-27-341 (b)(3)(B)(i)(a)).

Specifically, the juveniles were removed from the home on June 11, 

2015 and were adjudicated dependent-neglected on August 24, 2015 due to 

neglect and parental unfitness. The juveniles have thus been outside the 

custody of a parent for twelve (12) months. Despite a meaningful effort by 

the Department (evidenced by this Court finding at the Adjudication Hearing 

on August 24, 2015 and at the Review Hearing on January 13, 2016 and at 

the Permanency Planning Hearing on June 1, 2016 that the Department had 

made reasonable efforts toward the goal of reunification), the conditions 

which caused removal have not been remedied by the parents.

 Specifically, this Court found at the Permanency Planning Hearing on June 1, 

2016 that “[n]either parent has made significant, measurable progress toward achieving 

the goals established in the case plan. Neither parent has diligently worked toward 

reunification. The girls need a consistent, structured home life. The Court finds that 

the parents have not demonstrated that they can provide such consistent care for the 

juveniles.” The Court likewise found that both parents were in partial compliance but 

that “the girls would not be safe if they were returned to the custody of a parent today” 

and that “the parents have not addressed the root cause of this case: parents’ stability, 

parents’ inability to properly parent these special needs children, and the Court’s major 

concern that father poses a threat of sexual abuse to the children.” The Court found at 

the Adjudication Hearing on August 24, 2015 that the juveniles were dependentneglected due to the fact that Mother failed to protect the children “by violating the 
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13

visitation order and father’s prior addiction to pornography and lack of stability in 

employment and housing.” The same concerns are present today, and today neither 

parent has remedied the conditions which caused removal.

 (Emphasis added.) 

The conditions that caused removal of these two children, as found in the 

adjudication order and recited in the termination order, were “based on mother’s lack of 

stability in housing and employment and failure to protect by violating the visitation order 

and father’s prior addiction to pornography and lack of stability in employment and 

housing.” (Emphasis added.)

Rod first contends the divorce decree awarded custody of the children to Lisa, not 

him, and thus, technically, the children were not in his custody at the time of removal. 

Even if we ignore that fact because it is undisputed that Lisa, Rod, and the children were 

once again living together in Oklahoma at the time of removal, the conditions cited by the 

trial court related to Rod are not supported by the evidence before the trial court. Those 

conditions were “prior addiction to pornography and lack of stability in employment and 

housing.” The trial court also recounted in its order the findings from the permanencyplanning hearing that the parents had not made measurable progress toward achieving the 

case-plan goals, had not diligently worked toward reunification, needed a consistent 

structured home life, and that “the parents had not addressed the root cause of this case: 

parents’ stability, parents’ inability to properly parent these special-needs children, and the 

Court’s major concern that father poses a threat of sexual abuse to the children.” The 

termination order concludes that “[t]he same concerns are present today, and today neither 

parent has remedied the conditions which caused removal.” 
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Addressing the removal-causing conditions related to Rod under this section, we are 

unable to find evidence from the termination hearing that supports the trial court’s 

conclusion. With respect to stability in employment and housing, the DHS family-service 

worker acknowledged in her testimony she had included several items in her court report 

that she really did not know: 

In my court report I say Lisa has not maintained clean and stable housing, but 

I admit that I’ve never been to their home, but it’s my understanding that that’s 

Roderick’s home. They’re married. They live together. It’s just his home because he 

has maintained the stability in the house. Even during the divorce, it was my 

understanding that that was his home. I don’t know the exact time frame that he 

lived there. I don’t have any idea if it’s clean. 

I just said I don’t know how long they’ve lived there. I can’t say it’s not clean 

or stable because I don’t know. I haven’t been there. It could be, could not be. As 

for if it’s their fault I haven’t been there, well, I can’t cross state lines. I can get DHS 

in Oklahoma to go check out the home.

I say that Lisa has not maintained stable employment, but I am aware that 

she’s on disability. I’m not requiring her to have stable employment. There were 

some concerns about Lisa having to sell some things to get to her sessions with the 

girls. I don’t think we should go around and take everybody’s children away who 

have to sell some things to make ends meet.

As I said, Roderick has not maintained clean and stable housing, but that is 

the same apartment we just talked about. He has been employed. He’s employed at 

Dairy Queen. I don’t know the exact time frame that he’s been employed there, but 

his [hours] vary, so. If he’s been employed there for about a year, I would say that 

was stable. I say he’s not maintained stable employment because, again, his hours 

vary, so it’s not a stable income. It varies. And again, things were having to be sold 

to get here for visits and such.

I’ve not verified about what medication he’s taking that’s prescribed. He could 

be taking his medication as prescribed, but I don’t know. Everything I put down that 

they have not done, is not stuff I really know. 

(Emphasis added.) 
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Similarly, even though the initial declaration in support of the Oklahoma verbal 

application for emergency custody contained concerning language about child pornography 

and fears of child molestation, those allegations were never established in any forum. Here, 

the only evidence before the trial court about child pornography came from Rod himself, 

who acknowledged he had viewed child pornography once in 2009—approximately three 

years before the children were even born, he did not care for it, and he had “moved on.” 

Moreover, while Rod acknowledged he was addressing through therapy an addiction to 

adult pornography, we have been unable to find any authority to support the notion that 

an addiction to adult pornography—as long as the children are not exposed to it in any 

fashion—provides a basis for termination of parental rights. There was no evidence here that 

these children were exposed to such material. In addition, the adjudication order described 

Rod’s issue as a “prior addiction to pornography,” and none of the boxes for “abuse,” “sexual 

abuse,” or “sexual exploitation” were checked in the adjudication order. 

Our de novo review of the record leaves us with a definite and firm conviction the 

trial court made a mistake in concluding that the statutory “failure to remedy” ground was 

proven by clear and convincing evidence. At worst, it was established that the family-service 

worker did not know whether Rod’s housing and employment were stable; at best, it was 

established that he had lived in the same home since before the parties divorced, and even 

if Rod’s hours varied, he had worked for Dairy Queen for at least a year, and the only 

example of income instability offered was that the couple had to sell things to get to “visits 

and such.” 
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B. Subsequent Factors.

The other statutory ground relied upon by the trial court to terminate Rod’s parental 

rights was “subsequent factors,” which provides “[t]hat other factors or issues arose 

subsequent to the filing of the original petition for dependency-neglect that demonstrate 

that placement of the juvenile[s] in the custody of the parent[s] is contrary to the juveniles’ 

health, safety, or welfare and that, despite the offer of appropriate family services, the [parents 

have] 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[s] in 

the custody of the parent[s].” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl. 2015).

With respect to the “subsequent factors” finding, the termination order provides in 

pertinent part: 

Specifically, subsequent to the filing of the original petition in this case, 

Mother and Father separated. This Court expressed concerns at the Adjudication 

Hearing about Father’s addiction to pornography. Mother was living with her 

parents, and she was making some progress toward the goal of reunification. 

However, subsequent to the January 13, 2016 Review Hearing and before the June 

1, 2016 Permanency Planning Hearing, Mother re-married Father. The Court found 

at the Adjudication Hearing on August 24, 2015 that the juveniles were dependentneglected due to the fact that Mother failed to protect the children “by violating the 

visitation order and father’s prior addiction to pornography and lack of stability in 

employment and housing.” The Court then found at the Permanency Planning 

Hearing, 9 months later, that “the parents have not addressed the root cause of this 

case: parents’ stability, parents’ inability to properly parent these special needs 

children, and the Court’s major concern that father poses a threat of sexual abuse to 

the children.” Mother chose to re-marry Father despite being aware that the Court 

and the Department have serious concerns about Father’s appropriateness and 

parental fitness. Father has admitted to this Court that he has viewed child 

pornography. Father has walked around naked, holding the children—and on at least 

one occasion Father had an erection while doing so. The Mother made a choice in 

re-marrying the Father, and this subsequent factor demonstrates that the juveniles 

cannot be placed with Mother and that Mother is not making proper, protective 

decisions as regards her children. Father has not demonstrated to this Court that he 

is a fit and proper parent for the children. 
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The only “subsequent factors” we can discern the trial court relied upon in finding 

DHS had proved this ground by clear and convincing evidence was summarized in the 

above-quoted language from the termination order, which bears repeating: “The Mother

made a choice in re-marrying the Father, and this subsequent factor demonstrates that the 

juveniles cannot be placed with Mother and that Mother is not making proper, protective 

decisions as regards her children. Father has not demonstrated to this Court that he is a fit and 

proper parent for the children.” (Emphasis added.) 

Lisa’s choices and decisions will be discussed with respect to the termination of her 

parental rights. Regarding Rod, our de novo review of the record again leaves us with a 

definite and firm conviction the trial court made a mistake in concluding that the statutory 

“subsequent factors” ground was proved by clear and convincing evidence. There are no 

“subsequent factors” relating to housing, employment, or pornography addiction. Rather, 

the only “subsequent factor” relied on by the trial court appears to be that Rod “has not 

demonstrated to this Court that he is a fit and proper parent for the children.” We need say 

no more than to note that the order provides no facts to support “subsequent factors” for 

Rod and to point out that it is not a parent’s burden to prove he or she is a fit and proper 

parent; rather, it is DHS’s burden to prove he or she is not. See Ark. Code Ann. § 9-27-

325(h)(1) (Repl. 2015).

Because our review of this case convinces us that the trial court clearly erred in 

finding that statutory grounds for termination of Rod’s parental rights had been proved, it 

is unnecessary to address the remaining statutory requirements for termination and also 
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unnecessary to address Rod’s remaining arguments. We reverse the termination of Rod’s 

parental rights to I.C. and K.C. 

II. The Termination of Lisa Choate’s Parental Rights

We turn now to the trial court’s termination of Lisa’s parental rights. She contends 

in part the trial court committed reversible error in terminating her parental rights because 

DHS failed to prove by clear and convincing evidence that the statutory grounds raised in 

the petition to terminate existed. We agree.

As explained earlier in this opinion, there is one order terminating the parental rights 

of both Rod and Lisa. The statutory grounds relied upon by the trial court were the same 

for both parents: “failure to remedy” and “subsequent factors.” Because we previously 

quoted the trial court’s termination-order findings, it is unnecessary to repeat them fully 

here. Rather, we will discuss the findings pertaining jointly or specifically to Lisa.

A. Failure to Remedy Ground.

The conditions causing removal that pertained to Lisa were based on her “lack of 

stability in housing and employment and failure to protect by violating the visitation order

. . . .” As with Rod, our de novo review of the record leaves us with a definite and firm 

conviction the trial court made a mistake in concluding that the statutory “failure to 

remedy” ground was proven by clear and convincing evidence with respect to Lisa. 

As was true regarding Rod and as previously quoted at length, the family-service 

worker, in effect, testified that “[e]verything [she] put down that they have not done, is not 

stuff I really know.” She acknowledged the following relevant information. Lisa was on 

disability but stated she “was not requiring [Lisa] to have stable employment”; she had some 
Cite as 2017 Ark. App. 319

19

concerns about Lisa having to sell some things to get to her sessions with the children but 

stated she did not “think we should go around and take everybody’s children away who 

have to sell some things to make ends meet”; and she had never been to Lisa and Rod’s 

home and had no idea if it was clean or stable (even though her court report stated Lisa had 

not maintained clean and stable housing). In addition, the court relied on Lisa’s “failure to 

protect” the children from Rod, but as previously discussed at length under the termination 

of Rod’s parental rights, DHS provided no evidence upon which to base a conclusion that 

Rod was doing anything Lisa needed to protect the children from.

B. Subsequent Factors.

The trial court’s findings on this statutory ground have already been quoted in full. 

It is clear that, with respect to Lisa, the trial court concluded Lisa’s return to living with 

Rod was the subsequent factor that demonstrated placement of the children with her was 

contrary to their health, safety, or welfare, and Lisa had manifested the incapacity or 

indifference to remedy that situation, i.e., to leave Rod. It is impossible to see a basis for 

concluding that, in returning to Rod, Lisa was not making “proper, protective decisions as 

regards her children” when DHS did not satisfy its burden of proving he was a threat to the 

children. Because DHS failed to demonstrate how Rod was unfit and a threat to the 

children, this “subsequent factor” basis for termination of Lisa’s parental rights must fail also. 

As with Rod, because our review of this case convinces us the trial court clearly erred 

in finding that statutory grounds for termination of Lisa’s parental rights had been proved, 

it is unnecessary to address the remaining statutory requirements for termination. We 

therefore also reverse the termination of Lisa’s parental rights to I.C. and K.C. 
Cite as 2017 Ark. App. 319

20

Reversed. 

VIRDEN and HARRISON, JJ., agree. 

Dusti Standridge, for appellant Roderick Choate.

Leah Lanford, Arkansas Public Defender Commission, for appellant Lisa Choate. 

Andrew Firth, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor 

children.