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ARKANSAS COURT OF APPEALS

DIVISIONS I & II

No. CV-14-315

CRYSTAL SCHAIBLE

APPELLANT

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES AND MINOR

CHILDREN

APPELLEES

Opinion Delivered October 8, 2014

APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT

[NO. JV12-398-D/N]

HONORABLE THOMAS E. SMITH,

JUDGE

AFFIRMED

RITA W. GRUBER, Judge

Appellant, Crystal Schaible, appeals from an order of the Benton County Circuit

Court terminating her parental rights to her son, Z.B., born June 2, 2012. She contends on

appeal that the evidence was insufficient to support the circuit court’s decision and that the

court abused its discretion in allowing DHS to recall a witness. We find no error and affirm

the circuit court’s order.

Before this case began, appellant was involved with DHS from 2009 through 2012

regarding two older children. DHS’s involvement began when it was discovered that both

children had prenatal exposure to marijuana, and DHS involvement continued with

investigations into inadequate supervision, food, and clothing; continued drug use by

appellant; and homelessness. Appellant’s parental rights were voluntarily terminated to those

two children on February 7, 2012. The case before us began on June 4, 2012, when DHS

initiated a 72-hour hold on Z.B. due to his testing positive for illegal substances at the time
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of his birth on June 2, 2012. Z.B. was placed in foster care with the family that had adopted

his two half-sisters, and DHS immediately filed a petition to terminate appellant’s parental

rights.

The first termination hearing was held in September 2012, after which the court

denied the petition, finding that appellant had, since Z.B.’s birth three months earlier,

remained drug-free, attended NA/AA, maintained employment, maintained a stable

relationship, and visited Z.B. on a regular basis. The court granted appellant the opportunity

to complete the case plan and stated in its order that it expected her to obtain a GED, obtain

a driver’s license, attend counseling, attend NA/AA meetings regularly, and submit to regular

and random drug tests with negative results. The final termination hearing was held a year

later in October 2013, and the court entered its order terminating appellant’s parental rights

on January 7, 2014. 

The course of events that led to the termination suggests that appellant did achieve

compliance with many of the court’s requirements. Immediately after Z.B.’s birth, appellant

appeared to be in a stable relationship with a woman with whom she was living, Dani. The

court gradually allowed unsupervised visits and, eventually, a trial home placement of Z.B.

with appellant and Dani in April 2013, which ended after six weeks, following a break-up

between Dani and appellant.1

They had left Z.B. with a caregiver while they went on a float trip over Memorial

1Appellant continued, however, to have regular unsupervised weekend visits with

Z.B. until the termination hearing in October 2013.

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Day weekend. Appellant testified that she had consumed a few beers and Dani had consumed

more than a few beers. The two argued regarding Dani’s attempt to drive while intoxicated.

Dani got upset and left and was later arrested for public intoxication and disorderly conduct.

Appellant ended the relationship and moved in with a friend, Gina, for several months

thereafter. She and Gina then moved to another place that they shared with Mr. Beltran,

appellant’s deceased mother’s long-time boyfriend, considered by appellant to be a father

figure. At the time of the termination hearing, she and Mr. Beltran had signed a one-year

lease on another apartment they planned to share without Gina. Appellant testified that she

had been working at Bradford House Nursing Center for three months at the time of the

hearing and had taken classes to become a CNA but had not taken the CNA state exam nor

obtained her GED. 

Although the reports and testimony indicated that Z.B. suffered from developmental

delays, for which he attended occupational therapy several times per week, appellant testified

when called by DHS that she had no idea why Z.B. needed therapy, that she did not take

him to therapy when he was in her care, and that she did not plan on taking him to therapy

if custody were returned to her. Appellant was later recalled when presenting her own case,

after Z.B.’s therapist testified, and appeared to have experienced a change of heart regarding

Z.B.’s therapy. She told the court that she would provide therapy if he needed it. Z.B. also

suffers from asthma, and, although appellant is a smoker, she insisted that she did not smoke

around him. Appellant also testified that before Z.B. was born, she had a “serious drug

problem” and she admitted that she never completed a drug-treatment program. She said that

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she had attended NA/AA meetings for several months after Z.B. was born but that she had

not attended since that time. She also testified that she did get urges to use drugs and had

dreams about it but that work kept her mind off of it. Finally, appellant testified that she

might be pregnant. The court was concerned about this and requested confirmation before

it made its decision. The hearing was continued, and at a hearing several days later,

appellant’s counsel notified the court that appellant was in fact pregnant.

 Z.B.’s foster mother testified that when Z.B. returned from visits with appellant, he

was either hungry, tired, dirty, sick, or smelled of smoke. It was also clear from the evidence

before the court that the foster mother very much wanted to adopt Z.B.

Melinda Lunn, Z.B.’s occupational therapist, gave a detailed explanation of Z.B.’s

delays and of the progress he had made in therapy. She testified that therapy was very

important to his development and that failure to acquire the skills he needed could have

lifelong consequences. At the conclusion of Ms. Lunn’s testimony, the court took a fiveminute recess. After the recess, DHS asked to recall Ms. Lunn, which the court allowed over

appellant’s objection. In this additional testimony, Ms. Lunn described Z.B.’s condition after

having come from appellant’s care to therapy on the day before the hearing. She said his

clothing smelled musty and dirty and that his diaper was very full. She described him as being

“sticky” and his hair as “greasy” in back and “crunchy” on top. 

Brandon Robinson, one of the DHS caseworkers assigned to this case, testified that

appellant’s support system, instability, and dependence upon others for housing were

concerning. He said that he thought there was a high potential for harm if Z.B. were

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returned to appellant because she never completed a drug-treatment program despite trying,

had multiple partners during the course of the case, and demonstrated poor judgment. He

testified that DHS’s recommendation was termination. Another DHS employee, Michelle

Cutrer-Boggess, was involved with appellant in the previous cases and in this case. She was

concerned about appellant’s history of making questionable decisions and the consistent

instability in her life. She was particularly concerned that appellant, given her history of

addiction, admitted to drinking beers on her weekend float trip in May 2013. Finally, Z.B.’s

caseworker, Shannon Saindon, testified that she was concerned, given appellant’s history with

drugs and failure to treat her addiction through rehabilitation, that appellant might relapse.

It also concerned Ms. Saindon that appellant had not changed her circle of friends.

The CASA volunteer recommended adoption, stating that it was in Z.B.’s best interest

to be with his biological sisters in the home he had lived since birth. She also testified that

she was concerned about appellant’s failure to attend NA/AA meetings. 

The dissent quotes from the attorney ad litem’s closing argument in which the ad

litem states that she is unsure whether there is clear and convincing evidence to support

termination. This quote represents a small excerpt from the ad litem’s statement to the circuit

court. In her argument, the ad litem recognized that this was a close case and recommended

that the court give appellant additional time. Her main concern appeared to be that we might

reverse a termination, causing even more trauma to Z.B. And while her argument may have

been helpful to the circuit court, it was not evidence and the court was not bound by the ad

litem’s recommendation any more than it was bound by DHS’s.

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At the conclusion of the hearing, the court stated that it was granting the petition for

termination. The court expressed alarm that appellant was pregnant again. Although the

court did credit appellant with staying clean, it was concerned that she continued to fight the

urges of addiction every day without the benefit of a support group or training from a drugtreatment program to strengthen her. The court thought that this prevented her from having

long-term stability, particularly given the new stress of having another child. Basically, the

court was concerned with appellant’s pattern of behavior. 

In its order, the court found clear and convincing evidence of two grounds: (1)

adjudicated dependent-neglected and out of the custody of appellant for twelve months, and

despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that

caused removal, those conditions have not been remedied; and (2) other factors or issues

arose subsequent to the filing of the original petition that demonstrate that return of Z.B. to

appellant’s custody is contrary to his health, safety, or welfare and that, despite the offer of

appropriate family services, appellant has manifested the incapacity or indifference to remedy

the subsequent issues or factors or rehabilitate the circumstances that prevent return of Z.B

to her custody. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2013). The court specifically

found credible the foster mother’s testimony about the condition and care of Z.B. during

visits with appellant. The court found by clear and convincing evidence that it was in Z.B.’s

best interest to terminate appellant’s parental rights. The court found that Z.B. would be at

risk of potential harm based on environmental neglect, specifically the cleanliness of the child

and the smell of cigarette smoke after visits with appellant. The court also noted inadequate

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supervision. Finally, the circuit court listed eighteen additional findings, including appellant’s

voluntary termination of rights to two other children as a result of her inability to resolve her

substance-abuse issues; her admission that she continued to fight the urges of addiction; her

lack of an adequate support network to help her address the stresses of parenting and drug

addiction; her failure to complete any drug-treatment program or obtain a GED; her lack of

follow-through with Z.B.’s therapy when he was in her care; her consumption of alcohol

during the trial home placement; her pregnancy by a different father; and a repeated pattern

of behavior convincing the court that appellant had not resolved her substance-abuse issues

because, while “not testing positively for drugs, she has not stopped thinking and behaving

in a manner consistent with a person addicted to substances.” The court found that appellant

lacked the tools necessary to remain clean and believed that the added stress, financial and

parenting, of having another child would cause the cycle of addiction to continue and that

relapse was likely. Finally, the court found that, “[c]ombined with the lack of follow through

by the mother on her drug treatment, her use of alcohol during trial home placement, the

state of the child in her care, and the higher stress that will be present with another child on

the way, . . . Z.B.’s health and safety will be endangered if returned to the parent.” 

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

Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist,

in addition to a finding that it is in the child’s best interest to terminate parental rights; these

must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2013).

In making a “best interest” determination, the trial court is required to consider two factors:

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(1) the likelihood that the child will be adopted, and (2) the potential of harm to the child

if custody is returned to a parent. Smith v. Ark. Dep’t of Human Servs., 2013 Ark. App. 753, 

at 4, 431 S.W.3d 364, 367. The appellate inquiry is whether the trial court’s finding that the

disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.

Dep’t of Human Servs., 329 Ark. 243, 248, 947 S.W.2d 761, 763 (1997). Credibility

determinations are left to the fact-finder, here the trial court. Henson v. Ark. Dep’t of Human

Servs., 2014 Ark. App. 225, at 6, 434 S.W.3d 371, 375. 

The intent behind the termination-of-parental-rights statute is to 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. Ark.

Code Ann. § 9-27-341(a)(3) (Supp. 2013). Even full compliance with the case plan is not

determinative; the issue is whether the parent has become a stable, safe parent able to care

for his or her child. Ford v. Ark. Dep’t of Human Servs., 2014 Ark. App. 226, at 3, 434

S.W.3d 378, 381. Moreover, a child’s need for permanency and stability may override a

parent’s request for additional time to improve the parent’s circumstances. Dozier v. Ark.

Dep’t of Human Servs., 2010 Ark. App. 17, at 9, 372 S.W.3d 849, 854. Finally, a parent’s past

behavior is often a good indicator of future behavior. Stephens v. Ark. Dep’t of Human Servs.,

2013 Ark. App. 249, at 8, 427 S.W.3d 160, 164.

For her first point on appeal, appellant argues that the evidence was insufficient to

support the court’s order. A circuit court may terminate parental rights if it finds by clear and

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convincing evidence that it is in the best interest of the child, considering the likelihood that

the child will be adopted and the potential harm the child would suffer if returned to the

parent’s custody, and that at least one statutory ground for termination exists. Ark. Code

Ann. § 9-27-341 (Supp. 2013). Specifically, appellant appears to challenge the court’s

potential-harm determination, arguing that the testimony did not establish that she smoked

around Z.B. because no witnesses actually saw her do so and she testified that she did not.

She also challenges the foster mother’s testimony about Z.B. smelling of smoke and being

dirty when he returned from visits with appellant, claiming that the foster mother was clearly

biased because she wanted to adopt Z.B. Second, she argues that the evidence is not

sufficient to support grounds because she remedied the substance abuse. She states that, in

review orders entered in October 2012 and January 2013, she was found to have been in

compliance with the case plan and was allowed unsupervised weekend visitation after her

trial placement ended. She argues that she never failed a drug screen throughout the

seventeen-month case.

We turn first to appellant’s argument concerning potential harm. Potential harm to

the child is a factor to be considered, but a specific potential harm does not have to be

identified or proved by clear and convincing evidence. Pine v. Ark. Dep’t of Human Servs.,

2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in

broad terms. Id. It is the “best interest” finding that must be supported by clear and

convincing evidence. Id. Moreover, credibility determinations are for the circuit court to

make, not this court. Smith, 2013 Ark. App. 753, at 4, 431 S.W.3d at 367. The circuit court

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specifically found the foster mother to be credible; she testified that Z.B. always returned

from visits with appellant either hungry, tired, dirty, sick, or smelling of smoke. Finally, the

circuit court’s determination of potential harm involved much more than its concern with

the smell of smoke or the fact that Z.B. returned from appellant’s visits dirty. The court

specifically found that the combination of the lack of follow-through by the mother on her

drug treatment, her use of alcohol during trial home placement, the state of the child in her

care, and the higher stress that will be present with another child on the way would endanger

Z.B.’s health and safety in appellant’s care. The court appeared to have at least as much

concern with appellant’s lack of judgment—demonstrated by her failure to complete a drugtreatment program, attend NA/AA meetings, or maintain any other support group; her

inability to recognize Z.B.’s developmental-therapy needs; and her pattern of pregnancy and

dependence on others for housing (instability)—as with her environmental neglect. 

Appellant also challenges support for the court’s grounds for termination, contending

that she was found to be in compliance with the case plan and that she remained “clean” for

the entire seventeen-month period. While the court did find appellant to be in substantial

compliance and commended her for remaining drug free, it did not find that she was in full

compliance with the case plan. In fact, it had great concern that she was not attending

NA/AA meetings, as it had required, and that she had not completed a drug-treatment

program. It was particularly concerned with these lapses given her admission that she

struggled with urges caused by her addiction and the added stress caused by another child to

be born. 

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Appellant does not specifically explain why the other-factors ground was not met, but

the circuit court made numerous findings regarding events that occurred after Z.B. had been

taken into custody that caused it concern. A significant finding was that appellant did not

take Z.B. to occupational therapy when he was in her custody. She testified at the hearing

that she did not believe he needed therapy and she did not intend to take him if he were

returned to her. While appellant appeared to change her mind about the importance of this

therapy during the course of the termination hearing, her inaction while she had Z.B. in her

care was noted by the court in its order. In fact, almost all of the court’s findings related to

occurrences after Z.B. was removed from appellant’s custody. The court properly considered

the potential harm to Z.B. if it returned him to appellant. And its finding that other factors

or issues arose subsequent to the filing of the original petition that demonstrated that return

of Z.B. to appellant’s custody was contrary to his health, safety, or welfare was not clearly

erroneous.

For her second point on appeal, appellant argues that the court erred when it denied

her objection to allowing DHS to recall Z.B.’s occupational therapist, Melinda Lunn. On

recall, Ms. Lunn testified about Z.B.’s having come to therapy after a visit with appellant in

which Z.B. appeared unclean and had a musty smell. We note first that appellant has cited

no authority for her argument, and we will not research or develop an argument that has no

citation to authority or convincing legal argument. Henson v. Ark. Dep’t of Human Servs.,

2009 Ark. App. 697, at 6. Moreover, it is the circuit court’s duty to exercise reasonable

control over the mode and order of interrogating witnesses and presenting evidence, Ark.

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R. Evid. 611(a), and we will not reverse a circuit court’s ruling on the admissibility of

evidence absent a manifest abuse of discretion. Hopkins v. Ark. Dep’t of Human Servs., 79 Ark.

App. 1, 7, 83 S.W.3d 418, 423 (2002). Ms. Lunn’s testimony regarding Z.B.’s unclean

appearance had already come in through Z.B.’s foster mother. We hold that the court did

not abuse its discretion.

Although this is a unique case because the court terminated appellant’s rights in spite

of her ability to remain drug-free throughout the case, we are not left with a distinct and firm

impression that a mistake was made. Even full compliance with the case plan is not

determinative; the issue is whether the parent has become a stable, safe parent able to care

for his or her child. Ford, 2014 Ark. App. 226, at 3, 434 S.W.3d at 381. In this case,

appellant did not fully comply with the case plan. Her addiction caused each of her three

children to be taken into DHS custody, and she admitted that she had never completed a

drug-treatment program, that she had attended NA/AA meetings for only a few months after

Z.B. was born, and that she was pregnant with another child at the time of the hearing. She

also admitted to continuing to have urges to use drugs. The circuit court openly struggled

with its decision and credited many of appellant’s positive actions, but it was convinced that

it was in Z.B.’s best interest to terminate her parental rights. It made very detailed findings

supporting this decision in its order, and we hold that its findings were not clearly erroneous.

Accordingly, we affirm its decision. 

Affirmed.

PITTMAN, WALMSLEY, and WHITEAKER, JJ., agree.

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VAUGHT and HIXSON, JJ., dissent.

LARRY D. VAUGHT, Judge, dissenting. I would reverse this case. While it is a close

case, I am left with a firm conviction that this termination is not supported by clear and

convincing evidence because the statutory grounds for termination set forth in Arkansas Code

Annotated section 9-27-341(b)(3)(B) (Supp. 2013) have not been met. Without such grounds,

the termination is a violation of Crystal Schaible’s fundamental right to parent. 

Our standard of review in termination-of-parental-rights cases is well settled. When

the issue is one involving the termination of parental rights, there is a heavy burden placed

upon the party seeking to terminate the relationship. Cobbs v. Ark. Dep’t of Human Servs., 87

Ark. App. 188, 189 S.W.3d 487 (2004) (quoting Johnson v. Ark. Dep’t of Human Servs., 78

Ark. App. 112, 119, 82 S.W.3d 183, 187 (2002)). Termination of parental rights is an extreme

remedy and in derogation of the natural rights of the parents. Chase v. Ark. Dep’t of Human

Servs., 86 Ark. App. 237, 184 S.W.3d 453 (2004) (quoting Bearden v. Ark. Dep’t of Human

Servs., 344 Ark. 317, 328, 42 S.W.3d 397, 403–04 (2001)). Parental rights, however, will not

be enforced to the detriment or destruction of the health and well-being of the child. Chase,

86 Ark. App. at 240, 184 S.W.3d at 454. 

An order forever terminating parental rights must be based upon clear and convincing

evidence that the termination is in the best interest of the child, taking into consideration the

likelihood that the child will be adopted and the potential harm caused by continuing contact

with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2013). In addition to

determining the best interests of the child, the court must find clear and convincing evidence

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that circumstances exist that, according to the statute, justify terminating parental rights. Ark.

Code Ann. § 9-27-341(b)(3)(B).

We do not terminate a person’s parental rights because she is poor, has used drugs, or

does not always keep a tidy house. While these examples may be factors in determining a

parent’s fitness, a determination of unfitness must be made before the State may proceed with

a termination case. Our supreme court has recognized that a parent’s right to the care and

control of his or her child is a fundamental liberty and that termination of parental rights is

an extreme remedy in derogation of the natural rights of the parents. Jones v. Ark. Dep’t of

Human Servs., 361 Ark. 164, 205 S.W.3d 778 (2005) (citing Camarillo-Cox v. Ark. Dep’t of

Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); Trout v. Ark. Dep’t of Human Servs., 359

Ark. 283, 197 S.W.3d 486 (2004); Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002); Ark.

Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002)). The fundamental liberty

interest of natural parents in the care, custody, and management of their child does not

evaporate simply because they have not been model parents or have lost temporary custody

of their child to the State. Santosky v. Kramer, 455 U.S. 745 (1982). 

In Thompson v. Arkansas Social Services, 282 Ark. 369, 375–76, 669 S.W.2d 878, 881

(1984) (quoting Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979)), the supreme court

stated,

The concern of this court for the preservation of these [parental] rights has been

expressed over a long period of time . . . . [W]e recognized the rights of parents

of good moral character, however poor and humble they might be, if able to

support their child in their own style of life, not, as a cardinal principle of law

and nature, to be deprived of parental privileges, except when urgently necessary

to afford the child reasonable protection. Parental rights and the integrity of the

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family unit have always been a concern of this state and their protection

regarded as a proper function of the court. They have been classified as essential

rights, basic civil rights, and personal rights more precious than property rights.

They have been said to be fundamental rights . . . . Certainly there remains no

lingering doubt about the fact that the rights of parents to the care, custody and

upbringing of their children are the subject of constitutional protection on both

due process and equal protection standards. 

(Emphasis added.) In light of this onerous burden, I would reverse this case. 

In an order entered January 7, 2014, the court terminated Schaible’s parental rights to

ZD after finding that (1) she voluntarily terminated her rights to two previous children based

on a drug-abuse issue; (2) she gave birth to ZD with prenatal exposure to marijuana; (3) she

continued to fight drug addiction; (4) she failed to comply with a drug-addiction program or

get her GED; and (5) there was a repeated pattern of behavior that clearly and convincingly

showed that she had not resolved her drug issues. However, throughout the case Schaible was

found to be in compliance with the case plan and court orders. In fact, the caseworker

testified that she had “fulfilled most, if not all, of the things in the case plan.” She did so well

that she went from being “fast tracked” for termination (no services provided or early

termination—less than twelve months—of services), to having unsupervised visitation and a

trial home placement. She held a job, had a home, a vehicle, and a driver’s license. She

participated in GED classes and passed all of her drug screenings.

The trial home placement ended after an incident on a float trip (which did not involve

ZD), where Schaible was arrested for public intoxication. However, she continued to have

unsupervised visitation, and in fact had ZD the weekend prior to the termination. The last

court report stated that “the visits go well and no major concerns have been presented after

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the visits are done.” The foster mother testified that when ZD was returned from visits, his

feet were dirty and there was a smell of smoke on his clothing. The trial court found her to

be credible and even referred to her as the “adoptive mother.” There was testimony that she

planned to name the child “Hunter” upon adoption. Schaible denied smoking around the

child and acknowledged that ZD suffered from asthma.

At the conclusion of the hearing, the attorney ad litem summed the case up as best as

anyone could:

ZD was on trial placement with [Schaible] for about six weeks, not that long ago. If

she was fit enough at that time, other than the episode with the float trip, what has

happened since then to make her unfit? What I’m hearing is the question about the

therapies, the smoking, and quote-unquote, bad choices . . . . When it comes down

to it, Your Honor, what I have to think about is clear and convincing evidence. Is

there clear and convincing evidence? I’m not so sure about that.

Here, Schaible had seventeen months of supervision but did not fail a drug screen. She was

granted in-home placement and unsupervised weekend visitation. It is illogical that she can

be fit enough to have her child the weekend before the termination, but then the next week

there be a finding that the child would be in danger if returned to her. By all accounts she

complied with the case plan and continued to make meaningful progress toward reunification.

As such, I would reverse this case. The stakes are too high when a fundamental right is

implicated. The court was holding the past against Schaible. And, while I do not disagree that

the foster-parent situation was an arguably better environment for the child, that is irrelevant

to our inquiry. The State has no interest in terminating the rights of an otherwise fit parent

who presents no observable threat to the child’s well-being.

I would reverse and remand. 

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HIXON, J., joins. 

Elizabeth J. Finocchi, Arkansas Public Defender Commission, for appellant.

Tabitha B. McNulty, County Legal Operations; and Chrestman Group, PLLC, by: Keith

L. Chrestman, for appellees.

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