Cite as 2024 Ark. App. 276

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-23-846

ILDIFONSO GARZA AND SHANA 

HEMBREY

APPELLANTS

V.

ARKANSAS DEPARTMENT OF 

HUMAN SERVICES AND MINOR 

CHILD

APPELLEES

Opinion Delivered April 24, 2024

APPEAL FROM THE JACKSON

COUNTY CIRCUIT COURT 

[NO. 34JV-21-131]

HONORABLE ADAM G. WEEKS, 

JUDGE

AFFIRMED

CINDY GRACE THYER, Judge

Ildifonso Garza and Shana Hembrey each separately appeal the Jackson County 

Circuit Court’s order terminating their parental rights to their daughter, MC. Neither party 

challenges the statutory grounds for the termination; instead, they both argue that the circuit 

court erred in finding that termination was in MC’s best interest. We affirm.

On October 2, 2021, the Arkansas Department of Human Services (DHS) received a

Garrett’s Law report that MC had tested positive for amphetamine at birth. When 

questioned by the family service worker, Hembrey admitted using methamphetamine the 

weekend prior, and her drug screen came back positive for methamphetamine and opioids. 

Garza was present at the hospital but refused to submit to a drug screen. Hembrey informed 

DHS that she did not want Garza involved and did not intend to place his name on the birth 
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certificate. Garza then left the hospital. As a result of their investigation, DHS placed a 

seventy-two-hour hold on MC.

On October 6, DHS attempted to contact Hembrey to assess her home. When DHS 

family service workers (FSWs) arrived at the address Hembrey had provided at removal, they 

were told that Hembrey did not live at that address but lived with her grandparents. When 

the workers went to the grandparents’ home, they found it to be clean and tidy except for 

Hembrey’s room, which was in disarray. The only baby item in the home was a highchair. 

There was no crib, bassinet, or clothing present. Hembrey was not present during the visit 

but agreed to travel to the DHS office for a meeting later that day. While there, she submitted 

to another drug screen, which revealed she was positive for methamphetamine, 

amphetamine, and opioids. She then admitted using controlled substances upon her release 

from the hospital. As a result, DHS exercised another seventy-two-hour hold on the child.1

On October 7, DHS filed a petition for emergency custody and dependency-neglect 

naming Hembrey as a parent and identifying Garza as a putative parent. The affidavit in

support of the petition set out the foregoing facts and stated that removal was necessary 

because Hembrey’s substance abuse seriously affected her ability to supervise, protect, or care 

for the child. The ex parte order for emergency custody was granted that same day.

In an October 13 order, the circuit court found that probable cause existed and 

continued to exist and that it was in the best interest of MC to remain in DHS custody. The 

 

1This second seventy-two-hour hold was necessitated by DHS’s failure to submit a 

timely ex parte order for emergency custody when the child was first removed.
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court further found that DHS had been involved with the family since December 2010 but 

that the services had not prevented removal because Hembrey had given birth to MC, who 

tested positive for methamphetamine. Hembrey attended the probable-cause hearing; Garza 

did not.

In a December 2 order, the circuit court adjudicated MC dependent-neglected due to 

parental unfitness caused by Hembrey’s drug usage. Garza failed to appear at the hearing, 

and the circuit court ultimately dismissed him from the action, finding that he had not 

established significant contacts with MC and that his rights as a putative parent had not 

attached. The court set a goal of reunification and ordered Hembrey to comply with the 

approved case plan. 

In January 2022, Hembrey, who had been placed on probation for crimes committed 

in July 2019,2had her probation revoked. Upon revocation, she was sentenced to a total of 

thirty-six years in the Arkansas Department of Correction.

In March and August 2022, the circuit court entered review orders continuing the 

goal of reunification and finding that safety concerns prevented a trial placement with, or 

return of custody to, Hembrey because of her continued incarceration.

A permanency-planning hearing was held on November 1, 2022. After the hearing, 

the court changed the goal of the case to adoption. The court found that Hembrey had not 

 

2Hembrey was on probation for two counts of financial identity fraud and one count 

of theft of property (credit/debit card). She received fifteen years on each of the fraud counts 

and six years on the theft count, to run consecutively.
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complied with the case plan and orders of the court; had not demonstrated progress towards 

the goal of the case plan; and was not working to remedy the issues that prevent the safe 

return of the juvenile. Specifically, the court noted that Hembrey remained incarcerated. 

Shortly thereafter, on November 14, 2022, DHS filed a petition for termination of 

parental rights asserting multiple statutory grounds against Hembrey—twelve-month failure 

to remedy, subsequent other factors, aggravated circumstances, and incarceration. 

On April 14, 2023, Garza signed an acknowledgment of paternity. On the same date, 

stating its intent to file an updated petition, DHS moved to dismiss its termination petition, 

which the court granted. Subsequently, Garza was recognized as a parent, was again added 

as a party, and was appointed counsel.

On June 26, 2023, DHS filed another petition to terminate parental rights. As to 

Hembrey, the petition again alleged twelve-month-failure-to-remedy, subsequent-otherfactors, aggravated-circumstances, and incarceration grounds. As to Garza, it alleged the 

following grounds to support termination: noncustodial parent twelve-month failure to

remedy, twelve-month failure to provide significant material support or maintain meaningful

contact, subsequent other factors, aggravated circumstances, abandonment, and 

incarceration. 

A termination hearing took place on September 26. Garza and Hembrey testified, as 

did Natalie Hohn (the FSW), April Stokes (the FSW supervisor), and Hannah Briggs (the 

foster parent). 
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Garza testified that he believed MC to be his daughter, that he was present at the 

hospital when she was born, and that he was aware that she was placed in foster care shortly 

after birth. He admitted that he had refused the drug screen requested by DHS at the hospital 

but claimed he would have tested negative for illegal substances. He stated that he waited 

almost a year and a half to contact DHS because DHS told him it could not help him and 

that he would need a lawyer. He further explained that his father had died, and because he 

was absconding, he was afraid he would go to prison. He further admitted that his probation 

had been revoked and that he was serving a five-year sentence he had received for credit-card 

fraud. However, he claimed that he would not serve the entire five-year sentence and was set 

to be released on December 12.3 He also admitted that at the time of his arrest, he was found 

in possession of methamphetamine and was convicted of that charge as well. 

Garza then testified that he had engaged in Zoom visits with MC after he had signed 

the acknowledgement of paternity and that they had gone pretty well. However, he had not 

had any face-to-face contact with MC for almost eleven months.4 When asked, he admitted 

he had not paid any child support for MC but asserted that the court had never ordered him 

to pay any support for her either. He further noted that he had been paying child support 

for his other two children who lived with their mother. He stated he had taken parenting, 

 

3He claimed his release date was set because he had been sentenced to judicial transfer 

to ACC. 

4He testified that he saw MC five or six times during the time MC was placed with 

Hembrey’s sister.
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fatherhood, and money-management classes and intended to get his GED. He also claimed 

to own a home—the one in which he was arrested and found with methamphetamine—but 

acknowledged it was not suitable for MC. 

As for his plans to parent MC, he stated he hoped to leave the county, get another 

house, and get a job at the steel mill in Osceola when he was released from prison. He 

believed he would be able to achieve his goals within three or four months after his release. 

Even though MC had spent her entire two years of life in foster care, he denied abandoning 

her and asked for more time and a chance to parent her.

Hembrey testified next and confirmed that she had been sentenced to thirty-six years 

in prison, was presently incarcerated, and had been incarcerated since October 24, 2021. 

She noted that she was four years and two months away from her release date. She claimed 

that she had participated in multiple programs while in prison, including parenting classes, 

and that she had enrolled in college courses in pursuit of a business degree. 

As for visitation with MC, she claimed that she had been allowed Zoom visits with 

her and had attended them all. She admitted that the only in-person contact with MC 

occurred during the three weeks after MC’s birth and before Hembrey’s arrest. She 

acknowledged that for a period of almost one year thereafter, visitation did not occur because 

MC was staying with her sister, who was not on Hembrey’s approved visitor list at the jail. 

Hembrey argued that she would have bonded with MC during that time if she had been 

provided visitation.
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As for her substance-abuse issues, Hembrey acknowledged she has a drug problem 

and had failed two drug screens but asserted that her drug issue was currently under control. 

She asserted that she had received a certificate for completing a substance-use rehabilitation 

class and had not had a positive drug screen for ten months. She complained that DHS had 

not provided her with any services other than Zoom visitation since her incarceration. 

As for MC’s care, Hembrey asked that her parental rights not be terminated and that 

Garza be given the opportunity to parent MC. She explained that she had not placed Garza 

on MC’s birth certificate initially because they were not on good terms at that point. She 

also listed several relatives that she believed could take custody of MC. She indicated that 

she did not believe it would be hard on MC to be moved from her current placement because 

she was too young for lasting memories and would adjust to being home with her family. 

She stated that, once she was released, she planned to leave the county, finish her degree, 

and get a job elsewhere. 

Natalie Hohn, the FSW assigned to the case, was the next to testify. She 

recommended that parental rights be terminated so DHS could move forward with plans for 

MC’s adoption. She stated that MC had been in care for the entirety of her life—almost two 

years—and that MC could still not be placed with either parent due to their incarceration. 

She noted that Hembrey had been sentenced to thirty-six years in prison and Garza five, 

although Garza was set to be released on December 12. Because of their incarceration, the 

only services DHS could provide were Zoom visits, updated case plans, and pictures. She 
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testified that MC is a healthy child; she was unaware of any obstacles to her adoption; and 

that it was in MC’s best interest to move forward with termination.

As for Garza, she testified that he was initially only considered a putative father and 

that he had not appeared at the first two hearings. She stated that she spoke to him only

once on the telephone, on October 6, and that he was supposed to meet with her at the 

office, but he did not show. She stated he had had no contact with DHS until shortly before 

the acknowledgment of paternity was filed. Once he established paternity, a case plan was 

developed. She stated that he was able to access parenting classes through the ADC, but they 

had been unable to perform drug screens. 

April Stokes, the FSW supervisor assigned to the case since its inception, testified that 

she also agreed with the recommendation that Garza and Hembrey’s parental rights be 

terminated and that termination was in MC’s best interest. Additionally, she testified that 

she was unaware of any issues that would prolong or prevent MC from being adopted. 

Stokes then testified to potential relative placements investigated by DHS. She stated 

that MC was initially placed with Hembrey’s sister, Janice Williams, after removal. MC was 

in that placement for almost a year but ultimately had to be removed because of reports of 

Williams’s irrational behavior and drug use. Stokes stated that DHS had been provided with 

nine other potential relative-placement options; that one of the potential placements was 

still under review and had yet to be denied; but that there were concerns with the rest. She 

then described in detail the concerns DHS had with each of the nine prospective placement 

options.
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The last witness to testify at the hearing was the foster mother, Hannah Briggs. She 

testified that MC is her foster daughter and had been placed in her home for over a year. 

She stated that MC had bonded with and become very attached to her adopted daughter 

while living there. 

At the conclusion of the hearing, the circuit court terminated the parental rights of 

both Hembrey and Garza. It terminated Hembrey’s parental rights on the grounds of failure 

to remedy, incarceration, and aggravated circumstances—little likelihood for successful 

reunification. It terminated Garza’s parental rights on the grounds of incarceration, 

subsequent other factors, and aggravated circumstances—little likelihood for successful 

reunification. As to both parents, it found that termination was in the MC’s best interest. 

Specifically, the court found that both parents were incarcerated, and neither had a safe and 

appropriate home for MC. 

Both Hembrey and Garza have now appealed the circuit court’s termination of their 

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

Hum. Servs., 2019 Ark. App. 255, 576 S.W.3d 86. We review for clear error, and 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. Id.

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, Ark. Code Ann. § 9-27-

341(b)(3)(B) (Supp. 2023), 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 
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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).

On appeal, Garza and Hembrey assert only that the termination of their parental 

rights was not in MC’s best interest, and as to best interest, they challenge only the potentialharm prong of the best-interest finding. In assessing the potential-harm factor, the circuit 

court is not required to find that actual harm would result or to identify specific potential 

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

harm must be viewed in a forward-looking manner and in broad terms, but a court may 

consider a parent’s past behavior as a predictor of future behavior. Id. at 12, 555 S.W.3d at 

921. 

As to his claim of error, Garza challenges the court’s determination that MC could 

not be returned to the family home within a “reasonable period of time as viewed from the 

child’s perspective.” He notes that MC is only two years old and that an additional three 

months is an insignificant amount of time when compared to the next sixteen years of being 

forever separated from her father. He claims that he is making progress; that he is only 

months from being released from prison; that MC is currently in a stable placement; that 

there is still one more relative placement being explored by DHS; and that the age of the 

case is the only factor supporting termination. He argues that when a parent demonstrates 

stability and a reasonable hope for reunification, there is no harm in waiting a little longer 

before terminating parental rights. Because there is reasonable hope for him to be able to 

parent MC, he claims the termination decision should be reversed.
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However, sufficient evidence supports the court’s best-interest finding as to Garza 

because Garza has not demonstrated stability and a reasonable hope for reunification. He is 

currently incarcerated, and although his potential release date was only a few months away 

at the time of the hearing, he admitted he had not yet secured employment or suitable 

housing upon his release. This court has affirmed a potential-harm finding based on

incarceration because the lack of stable housing and employment due to incarceration are 

sufficient to prove potential harm. See, e.g., Martin v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 

508, at 10, 657 S.W.3d 881, 887 (citing Brumley v. Ark. Dep’t of Hum. Servs., 2015 Ark. 356, 

at 10–12). Moreover, while he allegedly visited MC five or six times prior to his incarceration 

and by Zoom thereafter, there was no evidence as to what type of a bond, if any, he had with 

MC. He failed to even acknowledge his paternity for more than a year after her birth because 

he chose to abscond rather than fulfill his parental obligations. And while he points to the 

fact that he has other children whom he supports financially, those children live with their 

mother, and there is no evidence that he has any bond with those children or that MC has 

forged any bonds with them. There was also evidence introduced at the hearing that he 

refused a drug screen at the hospital after MC’s birth and that he was found to be in 

possession of a controlled substance when he was subsequently arrested. Thus, it is unclear 

the extent of his substance-abuse issues, if any. 

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 
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accomplished in a reasonable period of time as viewed from the child’s perspective. Ark. 

Code Ann. § 9-27-341(a)(3). 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. Schaible v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371. 

Moreover, a child’s need for permanency and stability may override a parent’s request for 

additional time to improve the parent's circumstances. Id., 444 S.W.3d at 371. Simply put, 

there was insufficient evidence to support Garza’s claim that he would be able to begin 

parenting MC upon his release from prison, and there was sufficient evidence upon which 

to support the court’s determination that termination was in her best interest.

Hembrey, in her brief, argues that termination was not appropriate because relative 

placement was a less restrictive alternative to termination. She claims that DHS only paid lip 

service to the search for relative placement and simply denied some of the potential relative 

placements without properly determining whether those relatives would actually qualify as a 

placement option. She identified three potential relative placements: Alberto Garza (Garza’s 

brother); Jasmine Hernandez (Garza’s cousin); and Davina Hembrey (her stepmother). 

As stated above, Stokes, the FSW supervisor, testified in detail the concerns DHS had 

with the potential placement options suggested by Hembrey. She testified that that Alberto 

was denied because he lived in a home that was admittedly unsuitable. Jasmine was denied 

because she lived in her boyfriend’s home along with him and his mother; that her boyfriend 

was the only one in the household with a valid driver’s license; and that her boyfriend had 

tested positive for THC despite not having a medical marijuana prescription. Additionally, 
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Jasmine indicated that if her boyfriend had known he was going to be drug tested, he would 

have been prepared—in other words, he would have hidden his illegal drug use. As for 

Davina, Stokes testified that she had not been forthcoming and truthful with DHS. Davina 

informed DHS that she was separated from Hembrey’s father; however, her social media 

posts suggested otherwise. She also told DHS that, despite their separation, she did not 

intend to divorce him. This is important because Hembrey’s father was on active parole, and 

it is DHS policy that persons on active parole cannot be provisional foster parents. 

In order to make a least-restrictive-placement argument on appeal, at a minimum, 

there must be an appropriate and approved relative in the picture. We have held that where 

relatives have not been approved for placement and the children remained in foster care, the 

existence of potential relatives was not a basis to reverse a termination decision. Thomas v. 

Ark. Dep’t of Hum. Servs., 2020 Ark. App. 457, 610 S.W.3d 688; Dominguez v. Ark. Dep’t of 

Hum. Servs., 2020 Ark. App. 2, 592 S.W.3d 723. Because there were no approved relativeplacement options available at the time of the termination hearing, and because there was 

no reasonable hope for reunification within a reasonable time frame from MC’s perspective, 

the court’s termination decision as to Hembrey was not in error. 

Affirmed.

ABRAMSON and MURPHY, JJ., agree.

Dusti Standridge, for separate appellant Ildifonso Garza.

James & Streit, by: Jonathan R. Streit, for separate appellant Shana “Hembrey.
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Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for 

appellee.

Dana McClain, attorney ad litem for minor child.