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ARKANSAS COURT OF APPEALS

DIVISION III 

No. CV-17-476

KRISTINA JOHNSTON

APPELLANT

V.

ARKANSAS DEPARTMENT OF 

HUMAN SERVICES AND MINOR 

CHILDREN

APPELLEES 

Opinion Delivered November 15, 2017

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT

[NO. 43JV-16-17] 

HONORABLE BARBARA 

ELMORE, JUDGE 

AFFIRMED

BRANDON J. HARRISON, Judge

Kristina Johnston appeals a permanency-planning-hearing order of the Lonoke

County Circuit Court based on Ark. R. Civ. P. 54(b) and Ark. Sup. Ct. R. 6-9(a)(1)(B). 

This case presents a very close decision on the merits, but we are not left with a firm and 

definite conviction that a mistake was made. We therefore affirm the circuit court. 

I. Overview

This case1 began in February 2016 when Johnston was arrested for fraudulent use of 

a credit card, and her children D.J., L.J., and B.M. did not have a caregiver. Johnston 

stipulated that her three children were dependent-neglected in March 2016 “due to her 

 

1

The record reflects that there was an open referral and a past protective-services case 

related to the children, but those are not contested in this appeal. 
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parental unfitness, specifically the mother had inadequate housing.” She was ordered to 

cooperate with the Arkansas Department of Human Services (DHS), follow the case plan, 

not use controlled substances, submit to random drug screens, undergo a drug-and-alcohol 

assessment and follow its recommendations, successfully complete a drug-treatment 

program, and submit to a hair-follicle test. In April 2016, in addition to the previous orders, 

the circuit court ordered Johnston to complete parenting classes, individual counseling and

family counseling (if recommended by the children’s therapist), maintain stable housing and 

employment, submit to a forensic psychological evaluation, attend visitations, and 

demonstrate improved parenting. 

Following a June 2016 review hearing, the court found that Johnston was in partial 

compliance but that she had “not proven stability. This must be done.” Following an 

August 2016 review, the court wrote:

The mother is in partial compliance. She has attended counseling 

weekly, completed her drug and alcohol assessment, psychological evaluation 

and parenting classes. She needs to follow the recommendations of both the 

drug and alcohol assessment and the psychological evaluation. A copy of her 

psychological evaluation shall be provided to her therapist. The mother does 

not have stable housing or employment at this time. These children need 

stability. 

 Notwithstanding the court’s finding above, Johnston was ordered to participate in

and complete parenting classes, individual counseling, family counseling (if recommended 

by the children’s therapist), anger-management classes, random drug screens, remain drug 

free, complete drug-and-alcohol assessment (and follow any recommendations from it), 

attend outpatient drug treatment, attend AA/NA two times a week, maintain stable housing 

and employment, submit to a forensic evaluation, comply with the terms of case plan, 
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cooperate with DHS, maintain contact with DHS, attend visitation, and demonstrate 

improved parenting. 

The circuit court reviewed the case again in November 2016, but it made no specific 

findings on Johnston’s compliance with the court’s previous order. In the November 2016 

order, the court removed anger-management classes, family counseling, outpatient drug 

treatment, and AA/NA attendance from its requirements of Johnston. 

The court conducted a hearing in March 2017 to determine a permanency plan for 

the children. 

II. March 2017 Permanency-Planning-Hearing Testimony

DHS caseworker Sharese Handie testified during the permanency-planning hearing 

that she had been assigned the case since September 2016, and that, from that time, Johnston 

had four different short-term living arrangements. Caseworker Handie said that she had 

visited the trailer home Johnston obtained in February 2017, approximately a month before 

the hearing, and that it was appropriate. According to Handie, DHS did not consider 

Johnston to have stable housing because she had the trailer only for a month. When asked 

if she knew whether Johnston had income “at this time,” Handie answered, “She doesn’t.” 

Yet when asked if Johnston “had employment throughout the case,” Handie replied, “She 

has.” 

Handie further testified that Johnston had completed her psychological evaluation in 

June 2016 and had followed up on the recommendations. Johnston also finished a drugand-alcohol assessment and was referred to outpatient drug-and-alcohol treatment, which 

she completed. Johnston also completed parenting classes. She had been visiting the 
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children twice a week but had recently missed because of the flu. Johnston had started a 

new round of counseling, but Handie didn’t know the reason. When asked to explain why 

Johnston had not made substantial measurable progress, she replied, “Because she just got 

another home, and that’s unstable housing. She still doesn’t have a job.” According to 

Handie, those were the same issues that started the case. 

Handie also testified that Johnston had just texted her that she had gotten married a 

few days before the permanency-planning hearing. Handie had not had the opportunity to 

do a background check on the person Johnston had married, and that caused her concern. 

Handie agreed that Johnston “has diligently worked towards reunifying with the children” 

but it would take Johnston another “six months to a year” to get stable enough for the 

children to return to her. 

On cross-examination, Handie admitted that she did not know the name of 

Johnston’s therapist but was aware that the target completion date for the therapy was 17 

April 2017. She also admitted several inaccuracies in her court report, including that it was 

inaccurate because it did not show that Johnston had completed outpatient therapy. Handie 

maintained that Johnston did not have stable housing because she had just moved in. She 

conceded that Johnston could complete her counseling and the three additional parenting 

classes the court ordered within three months. 

DHS called Johnston as a witness. Johnston testified that her husband is Chad 

Buckner and admitted that he is a felon. She said that they had permission from their 

probation officers to marry and that they chose to get married because they had been best 

friends for two years. DHS asked Johnston many questions about her housing throughout
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the case. The testimony is not entirely clear but it appears that Johnston was homeless for 

a while, that she lived in Sherwood for four months, that she lived in a place in Ward that 

had bed bugs, and that she has a trailer home at her current address in Cabot. 

Johnston testified that she has babysitting jobs and sold things online stating, “I know 

that’s not considered a job to the courts, I guess, but I have made plenty of money to support 

my family. And I have a savings account that I’ve saved up. . . . I’ve been saving every 

penny I’ve had while I was homeless.” When asked about her new husband Chad, she said 

that he has a felony conviction for theft by receiving in 2014 and spent six months in jail. 

She also testified that she fraudulently used a credit card and got a $500 fine and a day of 

community service. There was also some questioning related to a misdemeanor terroristicthreatening charge, for which Johnston said she received one year probation and a large

fine, which had been paid off and the probation “dismissed.” 

DHS then questioned Johnston about her health. She testified that she takes

Cymbalta for depression, irritable bowel, and fibromyalgia. She also takes gabapentin, 

oxycodone, and tizanidine for pain and Klonopin for severe anxiety. She said that she does 

not take the medications when she needs to drive and that she has a husband who can drive. 

She testified that she needs $1,440 a month to pay all bills and that she has an 

additional $1,060 leftover each month to use for the children. When asked about “being 

homeless for a lot of the case was not making it appropriately, correct?,” she replied, “No, 

but I was trying to save enough money to be able to come up here and tell you I have 

money.” She thought her children could come home “today” even though the children 

had been out of her care for over twelve months. 
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When DHS asked Johnston about “the grandmother” having custody of B.M., she 

expressed concern that all three of the grandmother’s children had “been in trouble with 

the law,” that the eldest daughter is a felon, and that B.M. told her during visitation that her 

“Nana and PaPa cussed in front of her and scream a lot.” She expressed that “I would rather 

[B.M.] come home to me where she belongs and where she wants” but conceded that if 

the only choice were between B.M.’s grandmother or a stranger, she would choose the 

grandmother. As far as L.J., Johnston testified that she preferred a “Christian foster home” 

if given the choice between her current placement with an aunt and uncle and a stranger 

and that she wanted L.J. “out of that home.” Related to D.J., she said that he had a “great 

Christian family” and that she wished there were more openings in that home. 

On cross-examination by the attorney ad litem, Johnston stated that she had been 

charged with obstructing government operations and resisting arrest but that those charges 

had been dismissed. She also admitted to a felony theft-of-property conviction from 2014 

(before this case started). She stated that she had switched primary-care providers because 

the judge wanted her to, that she was also being treated at Arkansas Pain Management, and 

that her disability application was pending. 

On cross-examination by her counsel, Johnston testified about the six-month lease 

on the home where she currently resided. The lease was entered into evidence. She 

clarified that she had no pending criminal issues, that she had completed her outpatient 

treatment, and that she had completed one round of parenting classes and had three classes 

left on the second round of parenting classes. She testified about what she had learned from 

the parenting classes and that she had missed only one visit with her children because of a 
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bowel obstruction yet had made it to recent visits despite having the flu. She said that the 

counseling had been beneficial. On further cross- and recross examination it appeared that 

Johnston had seen many different therapists in the case. 

Chad Buckner, Johnston’s husband, testified that before the marriage he lived with 

his parents. He said that he had never been involved in a DHS case before, had no true 

findings on the child-maltreatment list, and had visitation with his son from a previous 

marriage. He testified that he was on probation for four years for theft by receiving but 

would complete probation in November. He said that Johnston would make $150 to $200 

from selling things on Facebook and that she made more than him some days. When asked 

what would happen if she ran out of things to sell, he said that she had applied for disability 

and he has a friend who is a manager at Domino’s Pizza. He said that he graduated high 

school with Johnston, that they had not seen each other for a long time, that they are best 

friends, and that he proposed about two weeks before they got married. Before that, he 

had a relationship with Johnston and her children and had provided money to Johnston. 

He denied illegal drug use except as a teenager and was willing to undergo a drug screen 

and a hair-follicle test. 

Brett Collins testified for DHS. He said that all three children had been placed with 

him and his wife (Johnston’s sister Lindsey) at the beginning of the case. He said that the 

children were doing “fairly well” but that there was a lot of resentment and discontent. In 

his view, D.J. was being deceitful by contacting his mom (Johnston), that things boiled over 

at a staffing, and he thought it best that D.J. move to a new home, which he did. Things 

with L.J. had been smoother once she realized that the Collinses were not “the monsters 
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that we were made out to be” but that B.M. still has “outbursts.” Collins thought B.M. 

might do better in a home where she had more one-on-one attention and that she was 

attached to her grandmother. He said that he and his wife preferred to adopt L.J. 

D.J.’s foster parent, Laura Patterson, testified that he had lived in her home since 5 

August 2016. She said that D.J. had been doing very well and that he was welcome to stay 

with her and her husband for as long as needed. According to Patterson, D.J. works, is a 

straight-A student, and “gets along with everyone.” 

Judy Brannen, five-year-old B.M.’s paternal grandmother, testified that she had been 

visiting B.M. two hours a week every Sunday but wanted more visitation time. She agreed 

that her son, Jesse, could not be paroled to her house if B.M. were to stay there, that she 

could follow court orders, and that she would prefer a neutral third party meet Johnston 

should visitation be ordered. 

D.J. testified that he is seventeen and that he would like to go back to his mother 

even though he has had a good time with the Pattersons and they have taken good care of 

him. He said that he is supportive of his mother’s marriage to Chad, that Chad is a “great 

guy,” that he provides money, and that “not too many men hop into a relationship with 

three kids.” He testified that he had been waiting over a year to get the “driver’s 

reimbursement” from DHS and that he didn’t understand “why we can’t go back to our 

mother.” On cross-examination, he said that family counseling would be beneficial. 

The attorney ad litem testified that she had spoken to L.J., and that L.J. did not want 

to testify but she wanted the court to know that she wanted to remain in her current 

placement with her aunt and uncle. A CASA report was also entered into evidence. 
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Jennifer McCain, a licensed master social worker at Centers for Youth and Families, 

testified Johnston was transferred to her as a client from a fellow coworker on leave from a 

medical issue. She testified that she had been to Johnston’s home and that there was nothing 

that had caused her concern. In the two sessions she had with Johnston, McCain thought 

that she had been forthcoming, open, honest, and compliant. She explained that the 

program was a short-term twelve-week program with a maximum of sixteen weeks, and 

that April 17 would be Johnston’s twelfth week in the program. 

Following the hearing, the circuit court determined that reunification with Johnston 

was not in the children’s best interest and that continuing DHS custody was necessary for 

the juveniles’ health and safety. The permanency goal for the oldest child, D.J. (age 17), 

was “Another Planned Permanent Living Arrangement (APPLA).” For the middle child, 

L.J. (age 14), the goal was a subsidized permanent guardianship with relatives. For the 

youngest child, B.M. (age 5), the goal was permanent custody with her grandparents. The 

court found that DHS made reasonable efforts to finalize a permanency plan by providing 

foster care, drug-and-alcohol assessments, individual counseling, inpatient drug treatment, 

parenting, psychological evaluations, home visits, supervised parent-child visits, and hairfollicle tests. Importantly, the court found that Johnston had not made “significant 

measurable progress.” It ordered DHS to make a referral for family counseling with D.J. 

and B.M. and relieved the department from providing any further services to Johnston other 

than counseling. 
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III. Arguments on Appeal

Here, Johnston argues that the circuit court clearly erred when it refused to afford 

her three additional months to achieve reunification pursuant to Ark. Code Ann. § 9-7-

338(c) (Repl. 2015), and found that the respective goal changes for the three children were 

in their best interest. DHS responds that “Johnston failed to preserve at trial and abandons 

on appeal any argument that the circuit court should have found all the elements required 

to allow the circuit court to continue the case plan goal of reunification.” It further argues 

that the circuit court did not clearly err in changing the goals in the case, and the evidence 

supported the conclusion that it would not be in the juveniles’ best interest to return to 

Johnston’s custody. The children, through their attorney ad litem, maintain that Johnston 

failed to prove by a preponderance of the evidence that she made significant measurable 

progress and that the circuit court chose a permanency plan that was most preferred under 

the juvenile code. 

A. Preservation 

We begin with DHS’s contention that Johnston’s arguments are not preserved for 

review. The general rule is this: in a civil bench trial, a party may challenge the sufficiency 

of the evidence for the first time on appeal. Bohannon v. Robinson, 2014 Ark. 458, at 5, 447 

S.W.3d 585, 588. In Gyalog v. Arkansas Department of Human Services, we held that a notice 

of appeal that designated a permanency-planning order was sufficient to preserve a challenge 

to the permanency-planning order. 2015 Ark. App. 302, at 8, 461 S.W.3d 734, 739. 

Gyalog argued that the court’s decision to change the case goal from reunification to 

termination and adoption was clearly erroneous, and we characterized that argument as a 
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sufficiency challenge to the permanency-planning order. Id. Like Gyalog, Johnston has 

appealed the court’s permanency-planning decision and is arguing that there was insufficient 

evidence to meet the statutory requirements to change the case-plan goal. She may 

therefore make her sufficiency challenges to the permanency-planning decision for the first 

time on appeal. 

B. Merits 

Turning to the merits of Johnston’s sufficiency-based arguments, we review findings 

in dependency-neglect proceedings de novo, but we will not reverse the circuit court’s

findings unless they are clearly erroneous. Lamontagne v. Ark. Dep’t of Human Servs., 2010 

Ark. 190, 366 S.W.3d 351. A finding is clearly erroneous when, although there is evidence 

to support it, the reviewing court, based on the entire evidence, is left with a definite and 

firm conviction that a mistake has been committed. Id. This court defers to the circuit 

court’s evaluation of the credibility of witnesses. Id. 

The statute in place at the time of the permanency-planning hearing provides, 

(c) At the permanency planning hearing, based upon the facts of the 

case, the circuit court shall enter one (1) of the following permanency goals, 

listed in order of preference, in accordance with the best interest, health, and 

safety of the juvenile:

(1) Placing custody of the juvenile with a fit parent at the permanency 

planning hearing;

(2) Returning the juvenile to the guardian or custodian from whom 

the juvenile was initially removed at the permanency planning hearing; 

(3) Authorizing a plan to place custody of the juvenile with a parent, 

guardian, or custodian only if the court finds that:

(A)(i) The parent, guardian, or custodian is complying with the 

established case plan and orders of the court, making significant measurable 

progress toward achieving the goals established in the case plan and diligently 

working toward reunification or placement in the home of the parent, 

guardian, or custodian.
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(ii) A parent’s, guardian’s, or custodian’s resumption of contact or 

overtures toward participating in the case plan or following the orders of the 

court in the months or weeks immediately preceding the permanency 

planning hearing are insufficient grounds for authorizing a plan to return or 

be placed in the home as the permanency plan.

(iii) The burden is on the parent, guardian, or custodian to demonstrate 

genuine, sustainable investment in completing the requirements of the case 

plan and following the orders of the court in order to authorize a plan to 

return or be placed in the home as the permanency goal; and

(B)(i) The parent, guardian, or custodian is making significant and 

measurable progress toward remedying the conditions that: 

(a) Caused the juvenile’s removal and the juvenile’s continued removal 

from the home; or

(b) Prohibit placement of the juvenile in the home of a parent.

(ii) Placement of the juvenile in the home of the parent, guardian, or 

custodian shall occur within a time frame consistent with the juvenile’s 

developmental needs but no later than three (3) months from the date of the 

permanency planning hearing;

(4) Authorizing a plan for adoption with the department’s filing a 

petition for termination of parental rights unless:

(A) The juvenile is being cared for by a relative and the court finds 

that:

(i) Either: 

(a) The relative has made a long-term commitment to the child and 

the relative is willing to pursue guardianship or permanent custody; or 

(b) The juvenile is being cared for by his or her minor parent who is 

in foster care; and

(ii) Termination of parental rights is not in the best interest of the 

juvenile;

(B) The department has documented in the case plan a compelling 

reason why filing such a petition is not in the best interest of the juvenile and 

the court approves the compelling reason as documented in the case plan; or

(C)(i) The department has not provided to the family of the juvenile, 

consistent with the time period in the case plan, such services as the 

department deemed necessary for the safe return of the juvenile to the 

juvenile’s home if reunification services were required to be made to the 

family.

(ii) If the department has failed to provide services as outlined in the 

case plan, the court shall schedule another permanency planning hearing for 

no later than six (6) months;

(5) Authorizing a plan to obtain a guardian for the juvenile;

(6) Authorizing a plan to obtain a permanent custodian, including 

permanent custody with a fit and willing relative; or
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(7)(A) Authorizing a plan for another planned permanent living 

arrangement that includes a permanent planned living arrangement and 

addresses the quality of services, including, but not limited to, independent 

living services and a plan for the supervision and nurturing the juvenile will 

receive.

(B) Another planned permanent living arrangement shall be selected 

only if:

(i) The department has documented to the circuit court a compelling 

reason for determining that it would not be in the best interest of the child to 

follow one (1) of the permanency plans identified in subdivisions (c)(1)-(6) of 

this section and this subdivision (c)(7);

(ii) The child is sixteen (16) years of age or older; and 

(iii) The court makes a judicial determination explaining why, as of 

the date of the hearing, another planned permanent living arrangement is the 

best permanency plan for the juvenile and the court finds compelling reasons 

why it continues to not be in the best interest of the juvenile to:

(a) Return home;

(b) Be placed for adoption; 

(c) Be placed with a legal guardian; or 

(d) Be placed with a fit and willing relative. 

(d) At the permanency planning hearing on a juvenile sixteen (16) years 

of age or older, the court shall ask the juvenile his or her desired permanency 

outcome, or the attorney ad litem shall enter evidence concerning the child's 

wishes.

(e) At every permanency planning hearing the court shall make a 

finding on whether the department has made reasonable efforts and shall 

describe the efforts to finalize a permanency plan for the juvenile.

(f) A written order shall be filed by the court or by a party or party’s 

attorney as designated by the court and distributed to the parties within thirty 

(30) days of the date of the hearing or prior to the next hearing, whichever is 

sooner.

(g) If the court determines that the permanency goal is adoption, the 

department shall file the petition to terminate parental rights within thirty (30) 

days from the date of the permanency planning hearing that establishes 

adoption as the permanency goal.

Ark. Code Ann. § 9-27-338. 

Pursuant to the statute, the preferred goal is for the circuit court to authorize a plan 

to place the children back with Johnston if she can show that she is complying with the 
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established case plan and court orders, making significant measurable progress, and the 

children can be returned within three months. Ark. Code Ann. § 9-27-338(c)(3)(A)–(B). 

Johnston asserts that the circuit court erred in finding that she had failed to make 

substantial, measurable progress. She further argues that placement pursuant to section 9-

27-338(c)(2), which authorizes the circuit court to create a plan to return the juvenile to 

the parent within three months of the permanency-planning hearing, was in her children’s 

best interest. In Johnston’s view, the change of the case goal was not in her children’s best 

interest because seventeen-year-old D.J. testified that he wanted to be with his mother and 

the court could have made reunification and APPLA concurrent goals without affecting 

D.J.’s permanency plans. A similar concurrent plan could be made with L.J. because the 

subsidized guardianship is lengthy and in the meantime, Johnston could be prepared to have 

custody of L.J. within three months. As to B.M., she was not even in her grandparents’ 

custody at the permanency-planning hearing so it was contrary to her best interest to change 

the goal to permanent custody with the grandparents when Johnston was making 

meaningful progress and complying with the case plan. The bottom line to Johnston’s 

argument is this: permanency for the children would not have been affected by giving her 

three additional months to achieve reunification, that is the preferential goal under the 

statute, and it is in the children’s best interest.

DHS responds that it was reasonable for the court to conclude it was in the juveniles’ 

best interest for the case goals to change because “Johnston remained unstable and did not 

sufficiently benefit from the services to allow reunification at the [permanency-planning 

hearing] or within three months.” D.J. was going to age out of foster care soon. L.J. did 
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not want to return to Johnston, and B.M. has had frequent visits with her grandparents and 

was bonded to them. The attorney ad litem echoes DHS’s arguments.

There are facts in the record that favor Johnston. She submitted to drug screens and 

completed outpatient substance-abuse treatment in November 2016. She attended 

visitation with her children. She finished a set of twelve parenting classes and then 

completed nine out of twelve of a second round of classes ordered by the court, and the 

caseworker testified that the remaining three classes would be completed within three 

months. Johnston completed a psychological evaluation and counseling and followed up 

on all recommendations, according to the DHS caseworker. Her therapist, Jennifer 

McCain, testified that Johnston had been compliant and forthcoming with her and had been 

open and honest about the diagnoses in her psychological evaluation. The caseworker 

testified that Johnston’s completion of her counseling would occur within three months 

should the court grant that additional time. 

We hold, however, that the circuit court neither clearly erred in changing the goals 

in this case nor in finding that Johnston failed to make “significant measurable progress.” 

Johnston had more than one year to achieve stability and was repeatedly homeless for 

extended periods throughout the case and had bed bugs and other problems with appropriate 

housing. Her employment consisted of selling things on Facebook. The caseworker 

testified that the home could not be considered “stable” until Johnston had it for at least six 

months and that Johnston needed six more months or a year to become stable. She married 

a felon, Chad Buckner, a few days before the permanency-planning hearing and did not 

inform DHS of the marriage. The record shows that Johnston had multiple medical issues—
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depression, anxiety, and pain—that require multiple medications impacting her ability to 

supervise the children if they were returned to her custody. She had yet to complete all of 

her counseling and parenting classes that the court had ordered. There was evidence that 

Johnston was unstable and did not sufficiently benefit from the services DHS provided even 

after one year of services. A parent’s overtures toward participating in the case plan or 

following the orders of the court in the months or weeks immediately preceding the 

permanency-planning hearing are insufficient grounds for authorizing a plan to return or be 

placed in the home as the permanency plan. Ark. Code Ann. § 9-27-338(A)(ii). 

The court also did not err in finding that reunification with Johnston was not in the 

children’s best interest. Johnston did not maintain safe and appropriate housing throughout 

the case and was homeless much of the time. Even though she had leased a home a month 

before the permanency-planning hearing, the court could conclude that she was not likely 

to maintain that housing given her past behavior and history of moving frequently to 

housing that was temporary and often unsafe for juveniles. She also had a history of 

instability with various criminal charges, which was the reason the children were taken into 

care. The children were doing well in their placements, and the court could find a risk of 

harm should they be returned to Johnston’s custody based on her past behavior. See Bearden 

v. Ark. Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001) (potential-harm inquiry 

is one of the many factors that a court may consider in a best-interest analysis); see also Dowdy 

v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, at 12, 314 S.W.3d 722, 728 (circuit 

court not required to find that actual harm would result or to affirmatively identify a 

potential harm). 
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IV. Conclusion

After reviewing the entire record, we are not left with a definite and firm conviction 

that a mistake was committed. 

Affirmed. 

 GLOVER and VAUGHT, JJ., agree. 

Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.

Jerald A. Sharum, Office of Chief Counsel, for appellee.

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

children.