Cite as 2023 Ark. App. 561

ARKANSAS COURT OF APPEALS

DIVISION II

No. CV-23-333

DAVID MILLER AND DELISSA 

JOHNSON

APPELLANTS

V.

ARKANSAS DEPARTMENT OF 

HUMAN SERVICES AND MINOR 

CHILD

APPELLEES

Opinion Delivered December 6, 2023

APPEAL FROM THE WHITE COUNTY 

CIRCUIT COURT

[NO. 73JV-21-110]

HONORABLE MARK PATE, JUDGE

AFFIRMED; MOTION TO WITHDRAW 

GRANTED

RITA W. GRUBER, Judge

This is an appeal following an order of the White County Circuit Court terminating 

the parental rights of Delissa Johnson and David Miller. Delissa’s attorney has filed a nomerit brief and a motion to be relieved as counsel pursuant to Linker–Flores v. Arkansas

Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme 

Court Rule 6-9(j) (2022), asserting that there are no issues of arguable merit to support an 

appeal of the decision to terminate her parental rights.1 David filed a merit brief challenging 

 

1The clerk of this court attempted to deliver to Delissa a packet containing a copy of 

counsel’s brief and motion to withdraw and advising her of her right to file pro se points for 

reversal; however, the packet was returned and marked as “return to sender/unable to 

forward.” The clerk’s office contacted Delissa’s counsel, who informed that Delissa’s last 

known address was a prison address, but at the time of mailing, Delissa had been paroled 

and had since absconded. 
2

only the statutory grounds to support the termination. We affirm the termination of parental 

rights as to both parents and grant counsel’s motion to withdraw.

On May 5, 2021, the Arkansas Department of Human Services (DHS) filed a petition 

for ex parte emergency custody and dependency-neglect regarding MC, who was eleven years 

old. It alleged that both parents were incarcerated—Delissa at the White County Detention 

Center and David at the Arkansas Department of Correction (ADC). The affidavit in 

support of the petition explained that MC’s guardians, Betty and Lonnie Randall, informed 

DHS that they could no longer have MC in their home. Because MC had no place to go, 

DHS exercised an emergency hold on May 3.

An ex parte order for emergency custody was entered on May 6 followed by a 

probable-cause order on May 11, which found that probable cause existed and continued to 

exist such that MC would remain in DHS custody.2 A June 3 adjudication order provided 

that the matter was “uncontroverted” and that MC was dependent-neglected due to the 

parents’ incarceration and the Randalls’ unwillingness to continue as MC’s guardians. The 

court also found that David is MC’s “presumed father” because he signed an 

acknowledgement of paternity at MC’s birth. The court set the goal of reunification or 

placement with an appropriate parent. The parents were ordered to cooperate with DHS, 

follow the case plan, and refrain from using or possessing controlled substances. The order 

 

2The order also granted the guardians’ request to be dismissed from the case.

However, there is no indication in the record that the guardianship was terminated, which 

would be necessary to clear MC for adoption. 
3

provided that they would be subject to random drug-and-alcohol screens once they were no 

longer incarcerated. The parents were required to obtain drug-and-alcohol assessments and 

follow the recommendations; complete psychological evaluations; complete parenting 

classes; and obtain and maintain appropriate housing and income once released from 

incarceration. Visitation was at the discretion of DHS. 

In a September 24 review order, the court continued the goal of reunification, and 

MC remained in DHS custody. The order provided that DHS had complied with the case 

plan and orders of the court, specifically noting that DHS “provided, referred, or otherwise 

offered: foster care; foster home visits; case management, advocacy, staffings, referrals for 

services, and visitation once the parents are able to do so.” The court found that DHS had 

made reasonable efforts to provide family services and finalize a permanency plan. Delissa 

was found to have partially complied with the case plan because she had completed 

rehabilitation at Phoenix, attended counseling, and was employed, but she was on

absconding status and had no residence of her own. David remained incarcerated, but the 

order indicated he may be paroled in November. The court found the parents had made 

some progress toward the goals of the case. 

A second review order was entered on January 20, 2022. The order provided that 

Delissa was out of jail but had an outstanding arrest warrant, and David remained 

incarcerated. The goal of the case remained unchanged. The court found that Delissa had 

partially complied with the case plan, making the same findings as the first review order and 
4

adding that Delissa had not attended outpatient treatment as recommended. The court 

made the same reasonable-efforts finding as the previous order. 

At the time of the permanency-planning hearing on April 28, David remained 

incarcerated. The court found that the safety concerns that prevented a trial placement or 

return of custody included the following: MC’s guardians were no longer involved in the 

case; Delissa lived with her mother-in-law, left inpatient drug treatment twice without 

successful completion, was not maintaining contact with DHS, had not provided proof of 

counseling or employment, provided invalid samples for drug testing on 02/14/22 and 

03/4/22, and had absconded from probation; and David remained incarcerated with a 

requirement to complete a nine-month therapeutic program. The court continued the 

previous goal, found that DHS had complied with the case plan, and made a reasonableefforts finding, but the court found that the parents had demonstrated little progress toward 

the goals of the case plan.

In the July 28 fifteen-month permanency-planning review order, the circuit court 

found that the same safety concerns remained that prevented return of MC to the parents 

and changed the goal of the case to adoption. The court found that Delissa had not complied 

with the case plan and court orders, specifying that her whereabouts were unknown; she left 

inpatient drug treatment twice without successful completion; she was not maintaining 

contact with DHS; she had not provided proof of counseling or employment; she had not 

completed the psychological evaluation or parenting education; and she admitted using 

methamphetamine on 06/27/22. Regarding David, the court found that he remained 
5

incarcerated and needed to complete a nine-month therapeutic program. Again, the court 

found that DHS had complied with the case plan and made the same reasonable-efforts 

finding.

On September 20, DHS filed a petition for termination of parental rights based on 

the following grounds: failure to remedy by both the custodial parent (Ark. Code. Ann. § 9-

27-341(b)(3)(B)(i)(a)) and noncustodial parent (Ark. Code. Ann. § 9-27-341(b)(3)(B)(i)(b)); 

failure to provide significant material support or failure to maintain contact (Ark. Code. 

Ann. § 9-27-341(b)(3)(B)(ii)(a)); and subsequent factors (Ark. Code. Ann. § 9-27-

341(b)(3)(B)(vii)(a)). In a September 26 review order, the circuit court continued the goal of 

termination and adoption. David remained incarcerated, and Delissa had been released from 

the White County Detention Center, but her whereabouts were unknown. The DHS court 

report, the CASA report, and Delissa’s 09/14/22 drug test, which was positive for 

methamphetamine and amphetamine, were entered into evidence. The same reasonableefforts finding was made. 

A termination hearing took place on January 19, 2023. David attended and was 

represented by counsel; Delissa was represented by counsel, who stated that Delissa had 

notice of the hearing but informed counsel that she would not be present. Both parents were 

present on February 9 when the circuit court announced its decision. 

DHS caseworker Jessica Rhoades testified that MC had come into DHS custody after 

his guardians did not pick him up from an inpatient hospital placement. Neither parent had 

custody of MC at that time. Rhoades testified that MC had eleven placements during the 
6

case, explaining that he would act out, get into altercations with his placements, and destroy 

property. At the time of the termination hearing, MC had been in a therapeutic foster home 

for ten months, which had been his longest placement. He was doing well, had good grades, 

was on the basketball team, and was using the techniques he learned in counseling. When 

asked what was different with MC now than in the previous placements, Rhoades stated that 

he was in a stable environment and able to express how he feels and work through his anger. 

Rhoades testified about the services provided to both parents. For Delissa, DHS had 

made referrals for a psychological evaluation; provided visitation and transportation; and 

conducted home visits, drug screens, and staffings. Despite referrals, Delissa had not 

completed the psychological evaluation or established consistent mental-health treatment, 

and had only completed four of twelve parenting classes. Delissa had lived with numerous 

people throughout the case but had been living with her boyfriend since October 2022, 

which was her most consistent residence. Delissa cleaned homes, but DHS could not confirm 

her employment because she was paid in cash and had no proof that her income was 

sufficient to support herself and MC. Rhoades testified that Delissa had entered substanceabuse treatment multiple times but never completed a program, and she did not participate 

in the referred outpatient treatment after leaving inpatient treatment. Rhoades said that 

Delissa tested positive for methamphetamine on 10/08/2021, 01/13/22, and 02/14/22

and admitted using methamphetamine prior to her June 2022 arrest. Rhoades had 

attempted to screen her in December 2022, but Delissa could not provide a sample. Rhoades 
7

stated that Delissa had not demonstrated a consistent period of sobriety and would have to 

complete substance-abuse treatment to be considered as a placement for MC. 

Rhoades stated that Delissa had been in jail at times during the case but was currently 

on absconding status because she had failed to report to her parole officer and had an active 

warrant. Rhoades expressed that MC was in DHS custody due to his parents’ incarceration 

and nothing had changed, adding that it was likely that Delissa would be in jail again because 

of the active warrant. Rhoades said that Delissa attended twenty of forty visits, which did not 

go well because there was “a lot of anger and feelings” expressed during the visits, and they 

ceased in September 2022 because MC was unwilling to participate in visitation. Roades did 

not think Delissa has a good bond with MC. 

Rhoades testified that David had been incarcerated throughout the entirety of the 

case. He had completed parenting, substance-abuse, and anger-management classes while 

incarcerated. In December 2022, David had been in “trouble” for “being under the 

influence” while incarcerated. As a result, Rhoades did not think he had fully benefited from 

the substance-abuse program he participated in while incarcerated. Due to his incarceration,

DHS was unable to conduct home visits, drug screens, or family counseling. Rhoades 

testified that David participated in staffings where the services he needed were discussed. 

She did not contact the ADC to determine if David could receive counseling or complete 

the psychological examination while incarcerated. Rhoades said that David sent letters to 

MC, but MC never wrote back. David also sent a letter to Rhoades asking what he could do 

and inquiring about MC and had made several requests for photos. Although the possibility 
8

of visitation was discussed in staffings and with the therapist, it was not offered because MC 

refused to visit with David. Rhoades said that she was neither aware of any providers used 

by DHS that provided services in prison nor did David suggest any during staffings or request 

that she look for such providers. 

Rhoades’s concerns in reunifying MC with Delissa included her ability to provide a 

stable, drug-free environment; to remain out of jail; and to be a consistently appropriate 

parent. For David, the concern was his incarceration. Rhoades testified that the parents had 

not made any progress, had not been diligently working toward reunification, and had not 

shown a genuine sustainable interest in complying with the case plan. Rhoades said that 

Delissa had been given several chances to complete services but failed to do so. Rhoades 

indicated that because David was incarcerated there was only “so much he can show the 

Department due to that status and not knowing when he’s going to be released.” At the time 

of the hearing, Rhoades had not been able to obtain David’s release date. Before placing MC 

with David once released, DHS would require him to obtain suitable housing, employment, 

and reliable transportation; maintain a drug-free environment; and participate in family 

counseling, parenting classes, and visitation. When asked how long that would take, Rhoades 

indicated that was “a big question mark” because there were so many uncontrollable factors, 

including that MC and David would have to establish a relationship in family counseling. 

Even if David were released soon, Rhoades could not say that placement with him would 

occur. 
9

Rhoades testified that MC could not be placed with either parent that day and that 

the parents had not remedied the conditions that caused removal. On the basis of her 

experience with MC, Rhoades testified that the uncertainty of what was going to happen to 

him and not being able to plan for his future would cause him to regress in his angermanagement progress. She was not aware of any factors that would prohibit or prolong the 

adoption process. When asked what factors were in favor of a successful adoption for MC, 

Rhoades said that he is a “great kid,” noting that he is funny, intelligent, and determined 

and has been able to find joy in basketball and other things to make himself a better person. 

With respect to potential harm, Rhoades indicated that MC would be at risk of harm to be 

around caregivers who have a substance-abuse problem, who are in and out of jail, and who 

have not been a consistent part of his life, all of which could cause MC to return to DHS 

custody. With the case having been open for over fifteen months, DHS recommended that 

termination and adoption would be in MC’s best interest, specifically mentioning that more 

time for the parents would not be in MC’s best interest because he needs stability and 

consistency to move forward with his life and plan for his future. 

Katherine Hudson, a DHS program assistant, provided visitation services and 

supervised visits between MC and Delissa. Hudson stated that Delissa missed about half of 

the forty visits due to a variety of reasons, including Delissa’s being incarcerated, attending 

rehab, oversleeping, not showing, or being “MIA.” While Hudson thought that MC likely 

had a close bond with Delissa when he was younger, their relationship had become

confrontational at the point she met them. She said that MC had “no faith in his mom” and 
10

was “constantly doubting that she would ever be able to get him back home.” They argued 

often during visits, and Delissa had good days and bad days in how she handled the 

confrontation. Hudson indicated that sometimes Delissa’s behavior was erratic and seemed 

to be drug induced. Visitations ceased at MC’s request after he had recognized that Delissa 

was on drugs during the last visit, which resulted in MC’s hanging up on the Zoom call. He 

never requested another visit, though Rhoades spoke to MC’s therapist about continuing to 

schedule visits. Hudson said that not long after the last visit, Delissa was incarcerated for 

several months, and no progress had ever been made to reestablish a visitation schedule. 

Laura Beth Brown, the Court Appointed Special Advocate (CASA) case coordinator, 

had approved the CASA court report introduced at the hearing. Brown met with MC shortly 

after the case opened. She testified that that, although he initially had behavioral issues at 

home and school, MC’s behavior improved after he was placed in a therapeutic foster home 

in April 2022, which provided greater structure and stability. CASA recommended that 

parental rights be terminated and that MC be adopted. Brown stated that MC is adoptable

and described him as a “good kid” who is engaging, pleasant, and intelligent. Brown said 

that MC does well in school and now gets along well with others. Brown testified that MC 

has no health concerns and his mental health is stable. She stated that MC has been in care 

626 days and deserves permanency. 

David testified that he is MC’s father and was currently incarcerated. He had asked 

for and received photos of MC on two occasions but not since communications had broken

down toward the end of 2022. David admitted he had tested positive for methamphetamine 
11

on December 6, 2022, while incarcerated at ADC. He stated that a disciplinary action took 

place on December 28, and he was currently on a thirty-day “refocus.” David stated that he 

completed all the courses offered by the ADC but could not recall when they occurred. Some 

of the classes, which included anger management, substance abuse, and parenting, had been 

taken before the case was open. He indicated that if a class had been taken previously, there 

is a waiting period before it can be taken again. 

After closing arguments, the circuit court took the matter under advisement and 

announced its decision to terminate both parents’ rights in court on February 9. In the 

February 22, 2022 termination order, the circuit court found DHS had proved all four 

grounds alleged in its petition. The order specifically found as follows:

It has been over fifteen months since the child was taken into emergency hold and 

the mother and father remain in and out of jail and incarcerated with no stable 

residence or income to support the child. The mother has continued to fail drug tests 

for methamphetamines and has entered at least three drug rehabilitation programs 

and has failed to complete any of them. She has not maintained consistent contact 

with the department and has not completed mental health counseling. The mother

has been provided services throughout the case, has had ample time and opportunity 

to remedy the issues that prevent placement of the juvenile in her home and 

continues to show indifference or inability to remedy said issues. The father is 

incarcerated at the Arkansas Department of Correction and is expected to be 

incarcerated for at least several more months. While he did complete some programs 

while incarcerated, as recently as December 2022, he obtained and used 

methamphetamines in jail. Visitations have not occurred with either parent due to 

therapy recommendations and [MC’s] desires to not visit with his parents. It is in the 

best interests of the child to terminate parental rights and change the goal to 

adoption. 

In its best-interest finding, the circuit court found that MC is adoptable and that he 

would be subject to potential harm because the parents had over fifteen months to get out 
12

of prison or jail and establish a stable, suitable residence for MC but had failed to do so. The 

circuit court noted that Delissa had been in and out of jail the entire case; admitted using 

methamphetamine in June 2022 and tested positive for methamphetamine in September 

2022; had left multiple drug-treatment programs without successful completion; and failed 

to provide DHS proof of counseling attendance, employment, completion of the 

psychological evaluation, and completion of parenting classes. The circuit court found that 

David had been hoping to be paroled since the beginning of the case, and no actual release 

date had been verified. Even after release, David would need additional compliance and 

services in order to establish his fitness as a parent. The circuit court also noted that in 

December 2022, David had obtained and used methamphetamine in prison. The court 

found that MC’s “continued lack of permanency would cause potential harm,” and there 

would be “obvious harm” to MC if placed with either parent at that time. This appeal 

followed. 

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

Servs., 2015 Ark. App. 535, at 2. At least one statutory ground must exist in addition to a 

finding that it is in the child’s best interest to terminate parental rights; these must be proved 

by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2023). Clear and 

convincing evidence is that degree of proof that will produce in the fact-finder a firm 

conviction as to the allegation sought to be established. Thomas v. Ark. Dep’t of Hum. Servs., 

2020 Ark. App. 457, at 4, 610 S.W.3d 688, 691. The appellate inquiry is whether the circuit 

court’s finding that the disputed fact was proved by clear and convincing evidence is clearly 
13

erroneous. Id. 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. Long v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 372, at 16, 675 

S.W.3d 158, 169. In determining whether a finding is clearly erroneous, due deference is 

given to the opportunity of the circuit court to judge the credibility of witnesses. Id.

I. No-Merrit Brief and Motion to Withdraw Filed by Delissa’s Counsel

Counsel for Delissa correctly asserts that there can be no meritorious challenge to the 

sufficiency of the evidence supporting the termination of her parental rights. Although the 

circuit court found multiple statutory grounds to support termination, only one ground is 

necessary. Westbrook v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 352, at 3, 584 S.W.3d 258, 

261. Counsel focuses on the subsequent-factors ground, which 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.

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Failure to comply with court orders is a 

subsequent factor on which termination may be based. Arnold v. Ark. Dep’t of Hum. Servs., 

2019 Ark. App. 300, at 11, 578 S.W.3d 329, 336.

The evidence introduced established that Delissa never successfully completed drug 

treatment and continued to test positive for illegal substances throughout the case. Delissa’s 

failure to complete drug treatment and continuing to test positive for illegal substances 
14

support termination under the subsequent-factors ground, and any argument to the contrary 

would be without merit. 

Counsel also adequately explains why the best-interest finding is supported by clear 

and convincing evidence and that no issue of arguable merit could be asserted on appeal. 

The caseworker testified that she was not aware of any factors that would prohibit the 

adoption process for MC. Regarding factors in favor of a successful adoption, Rhoades 

testified that MC has no health concerns and is a “great child,” elaborating that he is funny

and intelligent and has been able to find joy in basketball and other things to make himself 

a better person, despite everything he had been through. The CASA case coordinator said 

that MC is adoptable and described him as pleasant, engaging, and intelligent. She said he 

gets along well with others and does well in school. She also stated MC’s mental health is

stable and there are no health concerns. 

There was also evidence supporting the potential-harm finding. Delissa continued to 

test positive for drugs throughout the case. Although she entered inpatient drug treatment 

multiple times, she failed to complete the treatment as ordered by the circuit court. She was 

referred to outpatient treatment after leaving the inpatient program but never attended. 

There was testimony that MC wanted to stop a visitation after he realized that Delissa was 

under the influence of drugs. Evidence of a parent’s continued drug use or failure to comply 

with court orders constitutes sufficient evidence of potential harm. Johnson v. Ark. Dep’t of

Hum. Servs., 2020 Ark. App. 313, at 11, 603 S.W.3d 630, 636.
15

As counsel notes, there was only one other ruling adverse to Delissa during the 

termination hearing. This occurred when DHS asked the caseworker whether, in her 

experience, there would be an effect on MC if the case were continued for an uncertain 

amount of time. Delissa’s counsel objected on the basis of speculation. DHS responded that 

the caseworker had been working with the family and MC, and there were “large 

documented amounts of time and behaviors that have to do with MC and his reactions to 

the uncertainty of this whole process.” The circuit court allowed the testimony, stating that 

Delissa’s counsel would have the opportunity to cross-examine. The caseworker responded 

that she believed the uncertainty of what was happening with the case and what was going 

to happen to him would cause MC to regress and move back into the behaviors he exhibited 

at the beginning of the case instead of moving forward.

There could be no issue of arguable merit to raise on appeal of this evidentiary ruling. 

We will not reverse a circuit court’s ruling on admissibility of evidence absent a manifest 

abuse of discretion. Barton v. Ark. Dep’tof Hum. Servs., 2019 Ark. App. 239, at 12, 576 S.W.3d 

59, 67. The testimony objected to was relevant to the issue of potential harm to MC if the 

case continued for an uncertain amount of time. There was testimony that MC’s anger and 

behavioral issues stemmed from the uncertainty and instability in his life at the beginning of 

the case, which improved with counseling and being in a stable placement. The circuit court 

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

harm. Ross v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 503, at 16, 529 S.W.3d 692, 702. 

Potential harm must be viewed in broad terms, including the harm the child suffers from 
16

the lack of stability in a permanent home. Id. “Potential” necessarily means that the answer 

looks to future possibilities, and potential harm was required to be considered. Id.

Even if it was erroneous, a mere showing that the circuit court erroneously admitted 

evidence will not support a reversal absent a showing of prejudice. Rauls v. Ark. Dep’t of Hum.

Servs., 2021 Ark. App. 366, at 10. Without any showing of prejudice, any judicial error as to 

the admissibility of evidence is harmless error and cannot be grounds for disturbing a circuit 

court’s order. Id. Because there was other evidence of potential harm regarding Delissa’s 

continued substance abuse and lack of compliance with the case plan, any error in the 

admission of this testimony was harmless.

Having reviewed the record on appeal and the brief presented to us, we conclude that 

counsel has complied with the requirements established by the Arkansas Supreme Court for

no-merit appeals and agree that the appeal is wholly without merit. Accordingly, we affirm 

the termination order and grant counsel’s motion to withdraw. 

II. David’s Merit Brief

David’s only argument on appeal is that the evidence is insufficient to support any of 

the grounds for termination.3In regard to the subsequent-factors ground, he contends that 

DHS was required to show that meaningful efforts were made to rehabilitate him. As for 

failure to remedy (noncustodial parent), he contends that DHS was required to show that 

 

3Because David does not challenge the circuit court’s best-interest determination, it

is waived on appeal. Debiasse v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 331, at 9, 651 

S.W.3d 736, 743. 
17

appropriate family services were offered. David’s argument as to both of these grounds 

focuses entirely on the issue of services.

While David argues that he challenged the lack of services at the termination hearing, 

he acknowledges that the circuit court made previous reasonable-efforts findings. He did not 

appeal those findings in prior orders but states that this should not bar him from making 

this argument on appeal, contending that the findings could have applied only to Delissa 

because DHS did not offer him services. See Peterson v. Ark. Dep’t of Hum. Servs., 2020 Ark. 

App. 75, at 11, 595 S.W.3d 38, 44–45 (holding that appellant waived any services argument 

on appeal where he failed to challenge any of the circuit court’s prior reasonable-efforts 

findings and to request any of the specific services that he claimed on appeal were necessary 

to remedy the cause of removal even though appellant may have raised a services argument 

at the termination hearing). With respect to his argument that he should not be barred 

because the reasonable-efforts findings only applied to Delissa, he cites no authority in 

support of his argument. 

In Cheney v. Arkansas Department of Human Services, 2012 Ark. App. 209, 396 S.W.3d 

272, the father argued that DHS did not make meaningful and reasonable efforts to 

rehabilitate him because he was not offered services while he was in prison. DHS and the 

attorney ad litem argued on appeal that the father waived this argument due to his failure to 

appeal from either the permanency-planning order or the fifteen-month-review order in 

which reasonable-efforts findings were made by the circuit court. Cheney, 2012 Ark. App. 

209, at 11, 396 S.W.3d at 278. We noted that the permanency-planning order, which was 
18

not appealed, provided that the father would be allowed visitation with the children only by 

letter or mail while incarcerated. Id. We held that because the father failed to challenge the 

reasonable-efforts finding in the permanency-planning order, he had waived the issue for 

purposes of appeal. Id.

Because David failed to appeal the previous reasonable-efforts findings, his argument 

is not preserved. Even if it were preserved, it would still fail. David does not address any

specific service that DHS could or should have provided to him while he was incarcerated.

Cheney, supra; Yarbrough v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 429, at 9, 501 S.W.3d 

839, 844.

David further suggests that even if this court holds that he is barred from challenging

the previous reasonable-efforts findings, there was a four-month period between the last

hearing in which the circuit court made such a finding and the termination hearing. He

argues that, as a result, DHS was still required to offer services because it was not relieved of

providing reunification services. Again, David cites no authority in support of his argument. 

The subsequent-factors ground requires only that DHS offer appropriate family

services. DHS contends that David was able to participate in staffings and that visitation

would have been offered, but MC was unwilling to visit with David while he was

incarcerated. David cites the definition of familyservices, which is “relevant services provided

to a juvenile or his or her family” in order to achieve reunification or implement a plan of

adoption or guardianship. Ark. Code Ann. § 9-27-303(24)(A) (Supp. 2023). He states that

DHS, with the approval of the circuit court, was the “authority” on identifying what services
19

he would need to complete in order to have MC placed in his care. He contends that DHS

never informed him of what services he should complete while incarcerated and if the

services he completed in the years prior to the case opening would meet the requirement of

the case plan. DHS cites the portion of the definition of “reasonable efforts” to involve an

incarcerated parent, which provides:

(v)(a) “Reasonable efforts” include efforts to involve an incarcerated parent.

(b) The department shall:

(1) Involve an incarcerated parent in case planning;

(2) Monitor compliance with services offered by the Division of Correction to the 

extent permitted by federal law; and

(3) Offer visitation in accordance with the policies of the Division of Correction 

if visitation is appropriate and in the best interest of the child.

Ark. Code Ann. § 9-27-303(49)(A)(v). Here, DHS was aware of the services that David

completed while incarcerated; inquired about his release date and the therapeutic program 

he was required to complete before release; allowed him to attend staffings; and attempted 

to schedule visitation. 

This court has affirmed terminations based on the subsequent-factors ground where 

the appellant argued the circuit court erred because no services were offered. See Earls v. Ark.

Dep’t of Hum. Servs., 2018 Ark. 159, at 11–12, 544 S.W.3d 543, 549–50 (noting that the 

record demonstrated that Earls did not request services from DHS and that, because of his 

incarceration, there were no services that DHS could offer); see also Cheney, supra. Because 

David failed to challenge the prior reasonable-efforts findings and makes no suggestion of 
20

what services DHS could have provided to him while incarcerated, we conclude that his 

argument is without merit. Accordingly, we affirm the termination as to David. 

Affirmed; motion to withdraw granted. 

VIRDEN and BROWN, JJ., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for separate appellant

David Miller.

Dusti Standridge, for separate appellant Delissa Johnson.

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

Dana McClain, attorney ad litem for minor child.