Cite as 2022 Ark. App. 438

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-22-129

ANITA FARFAN

APPELLANT

V.

ARKANSAS DEPARTMENT OF 

HUMAN SERVICES AND MINOR 

CHILD

APPELLEES

OPINION DELIVERED NOVEMBER 2, 2022

APPEAL FROM THE VAN BUREN

COUNTY CIRCUIT COURT 

[NO. 71JV-20-19]

HONORABLE SUSAN WEAVER, 

JUDGE

AFFIRMED

ROBERT J. GLADWIN, Judge

Anita Farfan appeals the Van Buren County Circuit Court’s permanency-planning 

and termination-of-parental-rights (TPR) orders, arguing four points on appeal: (1) the trial

court did not have subject-matter jurisdiction; (2) she was denied due process; (3) sufficient 

proof did not support the statutory grounds for TPR; and (4) TPR was not in the child’s best 

interest. We affirm.

I. Facts and Procedural History

On September 1, 2020, appellee Arkansas Department of Human Services (DHS) 

filed a petition for emergency custody and dependency-neglect claiming that Anita’s minor 

child, born August 16, 2019, was at serious risk of harm due to neglect. The attached affidavit 

alleged that Anita and the child’s putative father, Robert Spackeen, live in Albuquerque, 
2

New Mexico.1 On August 30, the child was in the car when Robert was pulled over by police 

in Searcy County, Arkansas, and an officer discovered marijuana on the front seat and what 

appeared to be crystal methamphetamine packets on the car’s floor. Robert did not have a 

driver’s license, and he told the officer that he had a marijuana card but did not produce it. 

When the officer opened the driver’s car door, Robert “took off and spun the car in the 

parking lot and took off down Highway 65.” Later, DHS was notified that Robert and the 

child were being taken by ambulance to Ozark Health Hospital. They had been found in 

Van Buren County after Robert had turned down a dirt road, left his car, and taken the 

child into the woods. Robert was arrested, and the child was placed in foster care.

The affidavit reflects that DHS contacted Anita, who was described as hesitant about 

providing information without first speaking to an attorney. Anita refused to provide her 

husband’s name but stated that he was on his way to Illinois with their son for a painting 

job and that family planned to care for the child while Robert was working. Anita said that 

she works, goes to school, and does not have child care. When Anita called DHS back, she

was upset and said that she was coming to Arkansas to get her baby and that DHS had no 

right to have him in its custody. She became irate and said that she had been married to 

Robert for a month, that they were having problems in their relationship, and that Robert 

does not take drugs. When interviewed, Robert claimed that the child is his biological son 

and that they were on their way to Illinois to pick up his nieces and take them back to New 

 

1The minor child has five siblings, the oldest of which was born in 2006 and the 

youngest in 2016.
3

Mexico. He said that they planned to stay in Illinois for a week, that he was driving through 

Arkansas for a change of scenery, that he had been married to Anita for a little over a year, 

and that he takes opiates and sometimes amphetamines. He said that Anita was not aware 

of his drug use and that she does not take drugs. Robert tested positive for amphetamines, 

methamphetamine, opioids, and THC.

On September 3, an ex parte order placed the minor child in DHS custody until 

further order. An attorney was appointed for Anita, and an attorney ad litem (AAL) was 

appointed for the child. 

On September 8, a probable-cause hearing was held, and Anita and her attorney were 

present.2 The trial court held that emergency conditions continued and that it was in the 

child’s best interest to remain in DHS custody. The order states, “Anita Farfan testified, and 

the court did not find her testimony regarding the plan for the juvenile to be believed.” DHS 

was authorized to arrange visitation with law enforcement present.

On September 23, the AAL filed a motion alleging that at the Zoom hearing on 

DHS’s petition, Anita represented that she is the minor child’s mother, that she is a resident 

of New Mexico, and that she intended to travel to Arkansas to see the child. She said that 

she had the child’s birth certificate and would provide a copy to DHS, but she failed to 

provide the birth certificate when she arrived on September 9. The AAL argued that 

visitation should be halted until Anita provided a certified copy of the birth certificate. 

 

2The probable-cause order was filed October 26, 2020, and it does not reflect that the 

hearing was held via videoconference.
4

Further, Anita should submit to a DNA test within seven days or visitation should be halted 

again. 

 On November 3, DHS amended its emergency petition and attached affidavit to 

include that the minor child tested positive for methamphetamine, amphetamine, 

morphine, codeine, heroin, and THC. Also on November 3, a hearing was held on the 

AAL’s motion, and Anita was ordered to submit to a maternity test within seven days.

On November 30, an adjudication hearing was held, and Anita did not attend, but 

her attorney appeared.3 The adjudication order states,

a. [Robert] testified that he and [Anita] are residents of New Mexico. [Robert and 

Anita] were not married at the time of the birth of [the minor child].

b. Officer Bassinger testified that [Robert] was traveling through Arkansas and fled 

from a traffic stop. He abandoned the car, and 40 g of marijuana, scales, shackles, 

handcuffs, and a loaded gun w[ere] found in the car. In the chase, law enforcement 

had to draw his gun and [Robert] placed the child in front of him. Once he was 

apprehended, law enforcement found 80 g of methamphetamine on his person.

c. The mother did not attend the hearing stating that her daughter had an all day 

autism assessment that had been scheduled for two years though she did not 

provide proof.

d. The court noted that the mother’s prior testimony that she allowed the child to 

travel with [Robert] who had a suspended driver’s license and prior felony criminal 

record and seemed uncertain about when the child left, where the child was going, 

who the child was traveling with and when the child would return. The mother’s 

statements in the probable cause hearing regarding not knowing that [Robert] had 

a drug history do not seem credible or she is not able to protect the child as she is 

 

3A continuance order signed November 4, 2020, but which was not filed until 

February 22, 2021, states that the adjudication hearing would be continued to November 

30, 2020, because Anita was having technical issues with her phone and was unable to attend 

the hearing via Zoom. Anita was ordered to submit to DNA testing.
5

unaware of issues he has openly admitted in this case. The mother has failed to 

comply with the Court Order to obtain a DNA test. 

The court found the child dependent-neglected, and the goal of the case was reunification 

with a concurrent plan of adoption. 

On December 3, a disposition hearing was held via Zoom, and the court found that 

the child needed services and that returning custody to Anita would be contrary to the child’s 

welfare. The court held,

Specifically, the court notes that the putative father is currently incarcerated 

and the child cannot be safely placed with him due both his incarceration and due to 

[his] substance abuse issues. With regard to [Anita], the court finds that [the minor 

child] cannot be safely returned to her at this time. The court finds that [Anita] lacks 

credibility and has not been truthful with the court. The court finds that [Anita] 

allowed her child to leave with [Robert] and that she did not know where the two 

were going or for how long. [She] denied any knowledge of drug use by [Robert] 

although the two were married and living together. [She] testified that she was “gone 

all the time” so she did not know [Robert] was using drugs.

The court finds that since the removal, [Anita] has come to one in-person visit 

during which she initially refused a drug screen and then four hours later, she came 

back to DHS to provide a sample, but she did not want Ms. Hutto to listen while she 

provided a sample, and the sample showed that it was adulterated in that the specific 

gravity was off. Although [Anita] traveled all the way from New Mexico for the visit, 

she only stayed for 90 minutes of the 4 1⁄2 [hour] visit, stating that she had to attend 

online classes. She testified that her classes took priority over seeing her child because 

she was attending school to better herself for her kids. She has since dropped out of 

school. 

[Anita] failed to submit to maternity testing within seven (7) days as previously 

ordered, and the court has serious concerns about whether she is even the biological 

mother of [the minor child]. [Anita] failed to appear at the adjudication hearing and 

she failed to appear at her staffing scheduled on this date. She testified that she slept 

through the staffing today and that she failed to attend adjudication because her other 

child had autism testing, although she has not provided proof of the appointment. 

[Anita] has failed to demonstrate that her child is a priority or that she is capable of 

adequately supervising him and ensuring that his needs are met. She has failed to 
6

demonstrate that [the minor child] will have a sober caregiver if he is returned to her 

custody. 

The court ordered Anita to comply with the case plan; refrain from alcohol or drug use; 

submit to random drug screens, a drug-and-alcohol assessment, and a psychological 

evaluation; obtain and maintain safe, stable, and appropriate housing and employment; 

complete parenting classes; attend all visitation and individual counseling; resolve any 

outstanding legal issues; cooperate with efforts to resolve the issue of paternity; submit to 

maternity DNA testing within seven days; provide proof that she was at a doctor’s 

appointment for autism testing on the date of the adjudication hearing; and submit to hairfollicle testing within forty-eight hours.

A status hearing was held on December 15, and Anita appeared with her attorney. 

The court found that Anita had not completed genetic testing as ordered, and the case was 

continued until February 3, 2021.

On February 1, the AAL moved to stop reunification services, alleging that at the 

December 3 disposition hearing, “The court did not find [Anita’s] testimony credible and 

ordered her to submit to the DNA test as well as the hair-follicle [test] or face contempt 

charges, which may result in jail time.” The AAL claimed that DHS had contacted New 

Mexico DHS, which initially reported that Anita’s children were not in school and that the 

home had environmental issues. New Mexico DHS attempted to reach Anita again to 

determine the condition of the home, but Anita did not return the calls; therefore, New 

Mexico’s case was closed. DHS had also contacted New Mexico DHS for information 
7

regarding placement with Anita’s sister. The sister completed the papers but then moved 

and did not keep in contact with New Mexico DHS; therefore, the file was closed. The AAL 

alleged that Anita visited for one and a half hours on September 9, 2020, that she visited 

one hour on September 24 because she forgot about her visit and had a conflict, and that 

she did not answer calls for her visits on November 10 and December 23; otherwise, Anita 

attended thirteen video visits. Further, Anita had placed money in Robert’s commissary 

account but had said that she was not sure how the rent would be paid. The AAL alleged, 

[Anita] even indicates that she was shooting up in her neck, she is unable to hold a 

conversation if she is sober, needs the drugs to address her anxiety, and she needed 

to go to rehab. [Anita] indicated that she was passed out in a coma the day of the 

adjudication hearing missing it and the evaluation for her child. Someone named 

Essai texted [Robert] that he was texting on behalf of [Anita] because he had found 

[her] passed out in the car and took her into the house.

. . . .

[Anita] indicates that she went to take the DNA test but had no idea that she needed 

an identification card to take the test. She states that hers was lost in the move. New 

Mexico records indicate that her license was revoked for failure to appear. Even at 

that, she would still have the license for identification though she could not drive 

with it. She drove after the license was revoked and admitted the same in court.

The AAL argued that there was little likelihood services would result in successful 

reunification and asked that visitation cease. The AAL claimed that Anita was in contempt 

for failing to take the DNA and hair-follicle tests, that she was warned that possible jail time 

could be the consequence, and that because she lives in New Mexico, the consequence was 

unlikely. The AAL requested that DHS no longer be required to provide additional 

reunification services to Anita.
8

On February 3, a review hearing was held via videoconference, and Anita appeared 

with her attorney. The court noted that Anita’s testimony was not credible and held that 

the minor child needed services and should remain in DHS custody. The court found that 

Anita was less than noncompliant with the case plan, that she had failed to complete a courtordered DNA test, and that she had not maintained contact with DHS, and Anita was 

ordered to take a hair-follicle test. The goal of the case continued to be reunification. 

The order states,

Anita Farfan testified that she did not have a driver’s license so she could not 

complete the hair-follicle DNA testing. She has moved so the distance and gas money 

issue mentioned at prior hearing has resolved itself. She has visited sporadically and 

due to missing visits, is required to confirm visits 48 hours in advance. She admitted 

to missing a visit due to drinking bleach and having to go to the emergency room. 

She was unwilling to respond to the Court’s question as to whether her other children 

were present when she drank bleach. She does not have permanent housing and 

currently resides in hotel while she is waiting on her housing voucher. She was very 

recently employed as an assistant at a construction company but she has not been 

there long so she is not sure of the complete name of the company. She states that 

she did everything she was supposed to do for New Mexico so she does not know why 

they closed her case. She obtained her counseling intake appointment last night and 

is setting up services. She found a picture of her driver’s license on her phone so she 

has that for identification. She has worked towards resolving her legal issues in New 

Mexico and after the last case is set, she should be able to have her driver’s license 

reinstated. She is currently using methadone through a clinic she met with last week 

to assist her in not relapsing due to the stress. The Court notes the testimony of 

Anita Farfan and finds that said was not credible.

The court found that it was unclear whether Anita is the child’s biological mother and that 

she had no significant contacts with the child. The court also noted the DHS caseworker’s 

testimony that Anita had tried to obtain services in New Mexico, but New Mexico had closed 

its case because Anita was nonresponsive. 
9

On February 3, the court ruled on the AAL’s contempt and no-reunification-services 

motions.4 Anita appeared via Zoom, and she was ordered to produce copies of any 

recordings she had made of the juvenile proceedings and not to record any future hearings.

5

The court found that Anita had failed to submit to a DNA or hair-follicle test and that she 

had not submitted to any services in New Mexico, and the case there was closed. The court 

ordered that DHS is no longer to provide reunification services, including visitation, until 

Anita completed the DNA and hair-follicle tests.

On March 18, DHS and the AAL filed a joint motion to halt visits and relieve DHS 

of providing services to Robert because he had refused paternity testing. Robert testified at 

a hearing that he is not the minor child’s father, and he was dismissed as a party. DHS was 

relieved from providing further reunification services to him. 

On August 12, a permanency-planning hearing was held via videoconference, and

Anita and her attorney were present. The court admitted DHS’s court report and the ICPC 

home study for Rebecca Farfan, Anita’s sister. The court noted testimony from DHS 

caseworker Lorie Hutto and Rebecca. The order states:

7. . . .[Anita] did the DNA test after four months but still has not completed 

the hair follicle. . . . The Court relieved [DHS] of providing any reunification services 

due to the mother’s lack of participation. [DHS] did submit an ICPC to New Mexico

for the grandmother and for the sister. The sister was moving so initially it was denied 

and then reviewed. New Mexico approved the sister for placement. Ms. Hutto has 

concerns because the references were not interviewed, the bedroom space does not 

meet Arkansas standards, the budget does not add up and shows to be in the red by 

 

4The order is filed-marked April 22, 2021.

5This ruling addressed the AAL’s contempt motion filed on February 4, 2021.
10

$450 each month, the sister said that there are no other children in the home but has 

previously stated that Anita Farfan’s children stay with her regularly. Also, the brother 

has a drug criminal history, and the sister helps him out from time to time.

8. Rebekah [sic] Farfan testified that her middle name is Mia. . . . She and 

Lamberto, her fiancé[], provided the caseworker with the names and numbers for 

references. None of the references received an email from the caseworker so she 

provided Ms. Sena with their phone numbers. The references are willing to write 

letters. The home she is currently residing contains three bedrooms and three 

bathrooms. . . . They are looking for a four-bedroom trailer. Her brother has had a 

drug abuse problem and has been homeless. She has provided him shoes and names 

of homeless shelters. He would not live with her. Lamberto is a civilian working at 

Sandia National Labs under a government contract. His income is closer to $45,000. 

She does not work but receives a $500 social security check for her son with autism. 

. . . They have completed their RAFT training through DHS. They want to raise him 

as their own child and even willing to relocate to Arkansas. She is willing to follow 

the court guidelines even if it means that Anita Farfan could not see him which would 

cause hostility. She and Anita Farfan are very close and co-parent. 

The court authorized a plan for adoption and authorized DHS to file a TPR petition. The 

court ordered that Anita would not be permitted to attend the TPR hearing by video. 

In an amended permanency-planning order, the court added that it denied Rebecca’s 

motion for placement pursuant to the ICPC, stating,

[T]he court has concerns in that Rebekah [sic] Farfan states that she co-parents with 

[Anita] and speaks with her constantly and yet she does not know [Robert], [Anita’s] 

husband. Rebekah did not seem to know about the mortgage or situation with the 

home she is residing in though she did seem to say the home was in probate and was 

being sold. 

On September 17, DHS filed a petition for termination of Anita’s parental rights on 

the statutory grounds of failure to remedy, Arkansas Code Annotated section 9-27-

341(b)(3)(B)(i)(a) (Supp. 2021); failure to support, section 9-27-341(b)(3)(B)(ii)(a); 

abandonment, section 9-27-341(b)(3)(B)(iv); subsequent factors, section 9-27-
11

341(b)(3)(B)(vii)(a); and aggravated circumstances, section 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i). 

DHS alleged that TPR was in the minor child’s best interest, that he is adoptable, and that 

he would be subjected to potential harm if returned to Anita.

On October 11, Anita filed a motion for cash assistance or, in the alternative,

permission to attend the TPR hearing via Zoom. She asked for $1,859 to pay for car rental, 

hotels, and meals for her and her five children. Alternatively, she asked that she be able to 

attend the hearing via Zoom. The court granted her request for cash assistance.

On October 13, DHS filed a consolidated motion to vacate or set aside the order 

granting cash assistance. It argued that under Arkansas Code Annotated section 9-27-

303(10)(a) (Repl. 2020), cash assistance is defined as short-term financial assistance, which 

was not designed to prevent or alleviate the need for removal and is not required for the 

court to proceed with a termination hearing. Anita responded, asking that the court leave 

the order in place. On October 25, the court set aside its order as follows:

1) On April 22, 2021, this court found that the Plaintiff attempted to assist 

Defendant to obtain services, but she had not submitted to any services. 

Additionally, this court ordered Plaintiff to no longer provide reunification 

services.

2) After consideration of the above finding, as well as Plaintiff’s Motion and 

Defendant’s response, the Court finds the Order shall be set aside.

Anita did not appear at the TPR hearing, and her counsel argued that because she 

was indigent and not allowed to appear via Zoom, her opportunity to participate in the 

hearing was canceled. The court asked counsel if she was prepared to proceed without Anita, 

and she responded, “Yes, Your Honor, as prepared as you can be without a client.” After a 
12

short break, Anita’s counsel asked the court to reconsider its decision to proceed without 

Anita because her absence impeded counsel’s ability to defend the case. Counsel said, “I’m 

asking that the court reconsider some way for her to effectively participate. I don’t care what 

that is, but I would need to be able to communicate with my client and her to be able to 

hear testimony and assist me in her defense.” The circuit court denied the motion.

Lorie Hutto, the DHS caseworker, testified that she had been on this case since the 

beginning and that DNA testing had confirmed that Anita is the child’s mother. She said 

that Anita had refused to take the hair-follicle test but that she had submitted to a DNA test. 

Hutto had concerns about Anita’s suspected drug use due to her history and her behavior 

during Zoom visits and court hearings. She testified that Anita had stated she had a previous 

drug problem and that the minor child was born with drugs in his system. Hutto said that 

Anita had unstable housing and was unemployed during most of the case. Anita quit 

attending the visits with her child, and she failed to cooperate with the authorities in New 

Mexico and Arkansas. Hutto said that Anita talks a good game but that she has not done 

anything that DHS or the court had asked her to do. Hutto said that the child has not 

bonded with Anita and that there is nothing else that DHS can do to reunify the child with 

Anita. She said that the child is healthy, that he is receiving therapies and things that he 

needs, that he is adoptable, that his current placement had expressed an interest in adopting 

him, and that it is in his best interest that parental rights be terminated. 
13

The circuit court granted the TPR petition on the grounds alleged in the petition and 

found that it was in the child’s best interest to terminate Anita’s parental rights. The TPR 

order was filed on December 8, 2021, and Anita filed a notice of appeal on December 20.6

II. Applicable Law and Standard of Review 

In applying the Uniform Child Custody Jurisdiction and Enforcement Act 

(UCCJEA), we stated,

The UCCJEA provides the exclusive method for determining the proper 

forum in child-custody proceedings involving other jurisdictions. Ark. Dep’t of Hum. 

Servs. v. Waugh, 2015 Ark. App. 155, 457 S.W.3d 286. A child-custody proceeding 

under the UCCJEA includes proceedings for neglect, abuse, and termination of 

parental rights. Ark. Code Ann. § 9-19-102(4).

An Arkansas court has jurisdiction to make an initial child-custody 

determination if this state is the home state of the child on the date of the 

commencement of the proceedings. Ark. Code Ann. § 9-19-201(a)(1). By definition 

of law, a “home state” is “the state in which the child lived with a parent or a person 

acting as a parent for at least six (6) consecutive months immediately before the 

commencement of a child-custody proceeding.” Ark. Code Ann. § 9-19-102(7). An 

Arkansas court may also exercise temporary emergency jurisdiction as described by § 

9-19-204:

(a) A court of this state has temporary emergency jurisdiction if the child is 

present in this state and the child has been abandoned or it is necessary in an 

emergency to protect the child because the child, or a sibling or parent of the child, 

is subjected to or threatened with mistreatment or abuse.

(b) If there is no previous child-custody determination that is entitled to be 

enforced under this chapter, and a child-custody proceeding has not been 

commenced in a court of a state having jurisdiction under §§ 9-19-201–[203], a childcustody determination made under this section remains in effect until an order is 

obtained from a court of a state having jurisdiction under §§ 9-19-201–[203]. If a 

 

6The TPR order lists three statutory grounds: (1) failure to remedy, Arkansas Code 

Annotated section 9-27-341(b)(3)(B)(i)(a); (2) subsequent factors, section 9-27-341(b)(3)

(B)(vii)(a); and (3) aggravated circumstances, section 9-27-341(b)(3)(B)(ix)(a)(1)–(5).
14

child-custody proceeding has not been or is not commenced in a court of a state 

having jurisdiction under §§ 9-19-201–[203], a child-custody determination made 

under this section becomes a final determination, if it so provides and this state 

becomes the home state of the child.

(c) If there is a previous child-custody determination that is entitled to be enforced 

under this chapter, or a child-custody proceeding has been commenced in a court of 

a state having jurisdiction under §§ 9-19-201–[203], any order issued by a court of 

this state under this section must specify in the order a period that the court considers 

adequate to allow the person seeking an order to obtain an order from the state 

having jurisdiction under §§ 9-19-201–[203]. The order issued in this state remains 

in effect until an order is obtained from the other state within the period specified or 

the period expires.

(d) A court of this state which has been asked to make a child-custody 

determination under this section, upon being informed that a child-custody 

proceeding has been commenced in, or a child-custody determination has been made 

by, a court of a state having jurisdiction under §§ 9-19-201–[203], shall immediately 

communicate with the other court. A court of this state which is exercising 

jurisdiction pursuant to §§ 9-19-201–[203], upon being informed that a child-custody 

proceeding has been commenced in, or a child-custody determination has been made 

by, a court of another state under a statute similar to this section shall immediately 

communicate with the court of that state to resolve the emergency, protect the safety 

of the parties and the child, and determine a period for the duration of the temporary 

order.

Trevino v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 182, at 3–5, 645 S.W.3d 19, 21–22.

In Terrell v. Arkansas Department of Human Services, 2015 Ark. App. 582, at 4–5, 474 

S.W.3d 90, 92, we held that the trial court had jurisdiction under UCCJEA to terminate 

parental rights, reasoning in part as follows:

In Davis [v. Arkansas Department of Health & Human Services, 98 Ark. App. 275, 

254 S.W.3d 762 (2007)], the appellant argued that the trial court erred in exercising 

jurisdiction beyond the initial emergency proceeding because the children had moved 

to Arkansas from Louisiana only four months before they were taken into custody. 

This court held that the UCCJEA did not require a trial court that had assumed 

temporary jurisdiction to return custody to a parent where there was no competing 

custody order. Because there was no credible evidence of a custody order or a current 
15

custody proceeding in Louisiana, we held that the provisions of Arkansas Code 

Annotated section 9-19-204(b) applied, and Arkansas then became the home state of 

the children. We concluded that the trial court acted correctly when it continued to 

exercise subject-matter jurisdiction in the case and that such jurisdiction existed when 

the termination order was entered.

Our standard of review is de novo, although we will not reverse the trial court’s 

findings of fact unless they are clearly erroneous. Waugh, 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 definite and firm conviction that a mistake has been made. Mills v. Ark. Dep’t of 

Hum. Servs., 2022 Ark. App. 197, at 5–6, 644 S.W.3d 256, 259. When a trial court has 

discretion to decide whether to decline to exercise jurisdiction under the UCCJEA, we will 

not reverse the decision absent an abuse of discretion. Waugh, supra. 

III. Jurisdiction

Anita argues that Arkansas was not the child’s home state when the matter 

commenced; she maintains that, therefore, the trial court did not have subject-matter 

jurisdiction. She does not cite Arkansas Code Annotated section 9-19-204 (Repl. 2020), the 

emergency-jurisdiction provision of the UCCJEA, but she does not dispute that Arkansas 

has the power to protect the child in an emergency. She maintains that “this case went well 

beyond the need to maintain [the child] in Arkansas in order to protect him.” 

Anita distinguishes her case from Defell v. Arkansas Department of Human Services, 2022 

Ark. App. 27, wherein sufficient evidence supported Arkansas’s continued jurisdiction. 

Significant connection with Arkansas was determined in Defell because the children and 

Defell had family in Arkansas, Defell provided DHS with Arkansas addresses, all the services 
16

were provided to the family in Arkansas, and Defell traveled back and forth into Arkansas 

from Tennessee to transport drugs for her mother. Defell, 2022 Ark. App. 27, at 6. In 

contrast, Anita contends that she never accessed services in Arkansas “beyond visitation,” 

that she had no family in Arkansas, and that she always maintained her residency in New 

Mexico. 

Anita argues that Ms. Hutto’s testimony demonstrated that due to the distance 

between Arkansas and New Mexico, she did not know if Anita could parent the minor child, 

whether Anita was drug-free, whether Anita had a safe home, or if Anita had sufficient 

income. Anita contends that if the State is going to keep a nonresident child that was only

passing through in its foster-care system, it should be required to do more groundwork before 

deciding to terminate parental rights and sever the child from his connections to family in 

New Mexico. Tuck v. Ark. Dep’t of Hum. Servs., 103 Ark. App. 263, 268, 288 S.W.3d 665, 

669 (2008) (duty of DHS to provide services is not triggered by parents’ diligence or 

enthusiasm).

We hold that the trial court did not abuse its discretion in finding that it had subjectmatter jurisdiction. The trial court exercised emergency jurisdiction under the UCCJEA. 

That emergency jurisdiction continued to the termination hearing because there was no 

evidence of any custody order from any other state demonstrating jurisdiction. Ark. Code 

Ann. § 9-19-204(a)–(b); Trevino, supra; Terrell, supra. 

IV. Due Process
17

Anita argues that denying her any meaningful opportunity to defend TPR resulted in 

a violation of her due-process rights. She contends that under the Due Process Clause of the 

Fourteenth Amendment, she was guaranteed an opportunity to be heard during this entire 

proceeding and to defend the allegations against her in the termination petition. See Kight 

v. Ark. Dep’t of Hum. Servs., 94 Ark. App. 400, 231 S.W.3d 103 (2006) (affirming in face of 

due-process argument that appellant not given notice of standard of conduct required). Her 

counsel argued that she had a constitutional right to be present, that she was not afforded 

any means to participate, and that counsel could not effectively represent her without some 

means afforded to permit her to assist in her own defense. She insists that, regardless of the 

trial court’s finding that she could not attend via videoconferencing “due to connectivity 

issues” and that DHS offered to pay for a plane ticket, she could not fly due to her medical 

conditions, and DHS did not offer her an alternative means, such as a bus ticket. She argues 

that her credibility has nothing to do with her right to due process. 

Anita maintains that the error was not cured by her attorney’s participation in the 

termination matter. See Edwards v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 37, 480 S.W.3d 

215 (due-process argument not preserved; Wicks exception inapplicable; appellant’s absence 

did not equate to attorney’s inability to safeguard due-process rights). Anita argues that her 

attorney was very clear that she was unable to effectively safeguard Anita’s rights without her 

appearance either in person or via video. She contends that her counsel was unable to 

present a defense, did not call witnesses, and could not dispute DHS’s version of events.
18

We agree with DHS’s contention that Anita’s argument should be rejected because 

the trial court never denied her the opportunity to be present for the termination hearing—

it only denied her the ability to appear via Zoom because of her repeated inability to follow 

the court’s instructions while using the platform. Further, even after she had objected to the 

lack of Anita’s appearance, her attorney clearly stated that she was prepared, stating, 

“[P]repared as I can be without a client.” DHS had offered to pay for a plane ticket and hotel 

room so that Anita could appear, but Anita insists this offer was insufficient because of her 

health issues. The trial court disagreed and found that Anita, who was not credible, did not 

provide proof of her newfound health issues. The court found that even if she were unable 

to fly, she had the financial means to come to Arkansas because she had traveled here

previously and had money to put on Robert’s book in jail. Glover v. Ark. Dep’t of Hum. Servs., 

2019 Ark. App. 278, 577 S.W.3d 13 (credibility determinations are left to the trial court, 

and appellate courts will not reweigh the evidence on appeal). At almost every hearing, the 

trial court found Anita not to be a credible witness, and she was caught in multiple lies 

throughout the case. Accordingly, her ability to appear and testify held little value with the 

trial court. See Vogel v. Ark. Dep’t of Hum. Servs., 2015 Ark. App. 671, 476 S.W.3d 825 

(attorney’s alleged errors would not have affected termination outcome because facts 

overwhelmingly favored TPR).

V. Statutory Grounds

A court may order termination of parental rights if it finds clear and convincing 

evidence to support one or more statutory grounds listed in the Juvenile Code, Arkansas 
19

Code Annotated section 9-27-341(b)(3)(B) (Supp. 2021), and that termination is in the best 

interest of the child, taking into consideration the likelihood of adoption and the potential 

harm to the health and safety of the child that would be caused by returning him or her to 

the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). This best-interest 

determination includes consideration of the evidence supporting the specific grounds for 

termination. Camarillo-Cox v. Ark. Dep’t of Hum. Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). 

Anita contends that the trial court erred in terminating her parental rights on the

subsequent-factors ground. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).

7

She argues that this 

ground requires that DHS offer appropriate family services to address the subsequent factors 

and that DHS offered her services for only a two-month period during the case. Anita asserts 

that Ms. Hutto blamed her for the lack of services, testifying that New Mexico could not 

contact Anita to start services. However, Anita counters that Ms. Hutto also testified that 

Anita regularly communicated with her and that Ms. Hutto did nothing to try and facilitate 

communication between Anita and New Mexico.

We hold that the trial court did not clearly err in terminating Anita’s parental rights 

on the subsequent-factors ground. After the petition had been filed, Anita was ordered to 

 

7Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) provides:

That other factors or issues arose subsequent to the filing of the original petition for 

dependency-neglect that demonstrate that placement of the juvenile in the custody of the 

parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of 

appropriate family services, the parent has 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 in the custody of the parent.
20

cooperate with DHS, submit to drug screens, maintain stabling housing and employment, 

visit the minor child, and submit to maternity testing. On November 3, 2020, DHS was 

ordered to provide maternity testing, and Anita was ordered to comply. On November 30, 

2020, Anita was found to have not submitted to the test. The trial court ordered testing to 

determine whether Anita was the child’s mother on at least four occasions. A parent’s failure 

to comply with the case plan and court orders may be considered a subsequent factor. E.g., 

Gonzalez v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 425, 555 S.W.3d 915. Proof of only 

one statutory ground is sufficient to terminate parental rights. Alexander v. Ark. Dep’t of Hum.

Servs., 2021 Ark. App. 345, 634 S.W.3d 807. Because only one statutory ground must be 

proved to support termination of parental rights, we do not address the other statutory 

grounds found by the trial court. Easter v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 441, 587 

S.W.3d 604.

VI. Best Interest

Anita contends that the evidence was insufficient to demonstrate that termination 

was in the minor child’s best interest. 

The best-interest analysis includes consideration of the likelihood that the 

children will be adopted and of the potential harm caused by returning custody of 

the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). However, 

adoptability and potential harm are merely factors to be considered—they are not 

elements of the cause of action and need not be established by clear and convincing 

evidence. See Chaffin [v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, 471 S.W.3d 

251]. Rather, after considering all of the factors, the trial court must find by clear and 

convincing evidence that termination of parental rights is in the best interest of the 

children. Id.

Wafford v. Ark. Dep’t of Human Servs., 2016 Ark. App. 299, at 7, 495 S.W.3d 96, 101.
21

Considerations in making a best-interest finding may include: the preservation of the 

children’s relationship with a grandparent; the severance of child support from a 

parent; whether a less drastic measure could be employed such as a no-contact order 

or supervised visitation; whether continued contact with the parent would be 

beneficial to the children if or when the children are living with a relative and not in 

an indeterminate state that is working against them; and whether the children are 

living in continued uncertainty.

Phillips v. Ark. Dep’t of Human Servs., 2019 Ark. App. 383, at 11–12, 585 S.W.3d 703, 709–

10.

Anita argues that the Arkansas legislature has codified the promotion of the wellbeing of children and declared that placement with relatives is the preferred goal when 

accomplishing permanency for them. See Ark. Code Ann. § 9-28-1003 (Repl. 2020)

(safeguards for children in foster care); Ark. Code Ann. §§ 9-28-105 (preference to relative 

caregivers in foster care placement); -106 (religious preference considered in custodial 

placements); -107 (notice to grandparents); -108 (relatives given preferential consideration in 

custodial placement). She argues that the statutory preference that a juvenile be placed with 

a relative applies at all stages of a dependency-neglect case. Ellis v. Ark. Dep’t of Hum. Servs., 

2016 Ark. 441, 505 S.W.3d 678 (clarifying that Ark. Code Ann. § 9-27-355(b)’s statutory 

preference for relative placement is not limited to initial placement). Anita contends that,

despite her sister’s requests for placement and the concurrent goals of relative placement and 

adoption, the trial court terminated parental rights, thereby terminating any relative’s rights. 

She asserts that the law requires that the trial court give preference to the least

restrictive disposition when considering dispositional alternatives. Ark. Code Ann. § 9-27-

329(d) see Lively v. Ark. Dep’t of Hum. Servs., 2015 Ark. App. 131, 456 S.W.3d 383; Ivers v. 
22

Ark. Dep’t of Hum. Servs., 98 Ark. App. 57, 250 S.W.3d 279. The least restrictive option is a 

relevant consideration for the best-interest determination. Phillips, supra. Anita argues that 

in Clark v. Arkansas Department of Human Services, 2016 Ark. App. 286, 493 S.W.3d 782, 

relative consideration was extended to grandparents, and the court noted that it is unlikely 

a grandparent would be allowed to adopt the child after termination if the child is not placed 

with the grandparent beforehand. She further asserts that the rights of a relative are 

derivative of the rights of the parent. Burt v. Ark. Dep’t of Hum. Servs., 99 Ark. App. 402, 261 

S.W.3d 468 (2007). Anita argues that termination was unnecessary when placement with 

the maternal aunt was still an option. She contends that multiple factors weighed in favor 

of family preservation, which included maintaining the relationship between the minor child 

and his aunt. She argues that DHS disregarded the state’s public policy to strengthen family 

ties. See Ark. Code Ann. § 9-27-302. 

We hold that sufficient evidence supports the trial court’s best-interest finding. Anita 

does not challenge the court’s adoptability and potential-harm finding; therefore, she waives 

any argument related to these factors. See, e.g., Easter, supra. Instead, she argues that her 

sister was available for placement and had an approved ICPC home study. However, the 

trial court specifically found Anita’s sister inappropriate for placement as a result of her 

statements at the permanency-planning hearing about her coparenting with Anita, the facts 

surrounding her home’s financing and ownership, and her family’s potential move. 

Accordingly, we affirm.

Affirmed.
23

KLAPPENBACH and HIXSON, JJ., agree.

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Casey D. Copeland, attorney ad litem for minor child.