Cite as 2017 Ark. App. 458

ARKANSAS COURT OF APPEALS

DIVISION I 

No. CV-17-221

ASHLEY HOLLINGER 

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN 

SERVICES AND MINOR CHILDREN

APPELLEES

OPINION DELIVERED: SEPTEMBER 20, 2017 

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT, 

FORT SMITH DISTRICT 

[NO. 66FJV-15-278] 

HONORABLE JIM D. SPEARS, 

JUDGE

AFFIRMED

ROBERT J. GLADWIN, Judge

Appellant Ashley Hollinger appeals the order of the Sebastian County Circuit Court 

terminating her parental rights to her daughter, D.H., and her son, J.H. On appeal, she 

argues (1) that reversal is warranted because there was insufficient evidence presented to 

establish the grounds asserted in support of termination; and (2) that appellee Arkansas 

Department of Human Services (ADHS) failed to prove that termination of her parental 

rights (TPR) was in the best interest of her children. We affirm. 

I. Facts

This case began on April 15, 2015, when the Fort Smith Police Department 

requested ADHS’s assistance following several arrests, including the arrest of Ashley,

1 after 

a controlled drug buy in the home where Ashley and her children, D.H. and J.H., were 

 1

Ashley was arrested and charged with felony possession of a schedule two controlled 

substance, possession of drug paraphernalia, simultaneous possession of drugs and firearms, 

and maintaining a premises for drug sales. 
Cite as 2017 Ark. App. 458

2 

living. At the residence, officers discovered marijuana, drug paraphernalia, hydrocodone, 

and amphetamine. Based on these events, ADHS filed a petition for emergency custody and 

dependency-neglect on April 20, 2015. In the attached affidavit, ADHS asserted that it had 

a previous history with Ashley’s family dating back to 2012 that included protective-services 

cases. 

The trial court entered an ex parte order for emergency custody on April 20, 2015. 

On April 27, 2015, the trial court held a probable-cause hearing and entered the resulting 

order on May 6, 2015. The trial court held that the probable cause that necessitated the 

removal of D.H. and J.H. continued and that custody should remain with ADHS.

The trial court held an adjudication hearing on June 22, 2015, and in an order that 

was not filed until September 30, 2015, the trial court adjudicated D.H. and J.H. dependentneglected based on parental unfitness, threat of harm, and inadequate supervision. The trial 

court further found that the children were dependent-neglected as a result of Ashley’s drug 

use and her arrest following the discovery of drugs and drug paraphernalia in the home 

where Ashley, D.H., and J.H. were living. The trial court set the goal of the case as 

reunification and ordered Ashley to obtain and maintain housing, income, and 

transportation; to complete parenting classes; to submit to a drug-and-alcohol assessment as 

well as random drug screens; to submit to a psychological evaluation; to complete domesticviolence classes; and to resolve her pending criminal charges.

A review hearing was held on October 5, 2015, with an order filed on March 2, 

2016. The trial court continued the goal of reunification and found that ADHS had made 

reasonable efforts to achieve that goal. The trial court noted that Ashley had been released 
Cite as 2017 Ark. App. 458

3 

from jail during the review period, had completed the drug-and-alcohol assessment, was 

attending the recommended outpatient treatment, and had tested negative on her drug 

screens. Ashley was also attending parenting classes and was complying with the terms and 

conditions of her criminal sentences pursuant to the trial court’s order. The trial court also 

noted that Ashley had not yet completed a psychological evaluation, ADHS was “between 

providers,” and that any resulting delay should not count against her.

The trial court held a permanency-planning hearing on April 4, 2016, and entered 

an order on July 5, 2016, setting a concurrent goal of reunification and adoption with TPR. 

The trial court noted that Ashley was living with her boyfriend, D.J. Jennings (Jennings), 

and that the pair were fixing up a house in lieu of paying rent. Ashley was not employed 

and did not have her own transportation. ADHS did note that she had completed parenting 

classes, had completed a drug-and-alcohol assessment, and was attending the recommended 

outpatient-treatment program. Ashley resolved her criminal charges and received a 

suspended sentence, although she was arrested for failure to pay fines and expected to serve 

time in jail as credit toward her fines.

On July 25, 2016, the trial court held a fifteen-month review hearing and 

subsequently entered an order on September 15, 2016. Therein, the trial court ordered the 

goal of the case to be changed to adoption. The trial court found that Ashley was not in 

compliance with either the case plan or the court orders, noting that she had stopped 

attending outpatient treatment in December 2015, and upon her release from jail, she had 

tested positive for amphetamine and methamphetamine. The trial court further noted that 

Ashley recently had been released from inpatient mental-health treatment at Levi Hospital 
Cite as 2017 Ark. App. 458

4 

in Hot Springs, had not resolved her criminal charges, and had not complied with the terms 

and conditions of her sentences.2

ADHS filed a TPR petition on September 16, 2016. Therein, ADHS alleged that 

the following grounds supported TPR: failure to remedy; subsequent factors; and aggravated 

circumstances. ADHS further alleged that TPR was in the best interest of the children. The 

trial court held a hearing on ADHS’s TPR petition on October 24, 2016. Melissa Dancer, 

ADHS’s caseworker who had been assigned to this case since the children entered foster 

care, presented testimony. She stated that Ashley and Jennings had been staying in a home 

with another person when the drug arrests that prompted the opening of this case occurred. 

According to Dancer, Ashley was arrested on multiple charges but was ultimately convicted 

of two counts of possession of drug paraphernalia. Dancer stated that Ashley’s drug of choice 

was methamphetamine. She stated that in an attempt to remedy Ashley’s drug usage, 

ADHS’s case plan required her to gain and maintain sobriety through a drug-and-alcohol 

assessment and treatment.

Dancer also stated that Ashley had been ordered to attend parenting classes, to gain 

and maintain stable income, housing, and transportation, and to resolve all her criminal 

issues. Dancer acknowledged that Ashley had obtained and maintained stable housing since 

December 2015 and had obtained and maintained stable employment for the last three 

months. Dancer further stated that Ashley attended parenting classes, completed her drugand-alcohol assessment, and began outpatient drug treatment at Horizons. Dancer explained 

 2

The trial court found that Galen Pitts, the children’s putative father, failed to present 

evidence that he established significant contacts with the children, and his parental rights did 

not attach. The trial court dismissed Pitts, and he is not a party to the instant appeal. 
Cite as 2017 Ark. App. 458

5 

that Ashley did not formally complete the program, however, because she had failed to 

provide documents related to her NA/AA attendance and that the following May, Ashley 

had tested positive for methamphetamine and hydrocodone. She also tested positive in a 

subsequent urine test for benzodiazepine and alcohol. Dancer explained that she had 

informed Ashley immediately after the positive hair-follicle test that she had to return to a 

treatment program and provided her with a referral but that Ashley did not go right away. 

Dancer denied that there were any further services she could offer Ashley to aid in 

reunification and noted that the case had already been open for nineteen months. Dancer 

stated that ADHS was concerned about the positive hair-follicle test, as well as two 

subsequent arrests of Ashley, but then acknowledged that Ashley was attending therapy and 

was current on all fines in her legal cases.

Regarding the children, Dancer stated that J.H. had treatment needs and had been 

in non-foster-home settings throughout the case but was currently placed with his sister in 

a foster home. Dancer explained that J.H. had aggression issues that required treatment and 

that J.H. had been in acute-inpatient stays and later day-treatment programs. She also 

explained that J.H. could not handle stress and that anxiety tended to overwhelm him. 

Despite these issues, Dancer stated that they were not things that would prevent J.H. from 

being adopted. Regarding D.H., Dancer stated that the thirteen-year-old child exhibited 

quite a maturity for her age and had no mental-health issues or needs.

Dancer testified that the children’s current foster home had expressed an interest in 

adopting the children, if the children were willing. Dancer admitted that D.H. was of the 

age that she would need to consent to adoption and opined that the child was not 
Cite as 2017 Ark. App. 458

6 

“completely unwilling or un-open to the idea of being adopted.” Dancer stated that she 

believed it was in both children’s best interest to be adopted. She also stated that they would 

be at risk of harm if returned to Ashley because of the lack of overall stability and pending 

legal issues.

On cross-examination, Dancer stated that she did not refer Ashley for further drug 

screens after the May screen to allow time for the drugs to be out of her system. Upon 

further questioning, Dancer acknowledged that Ashley had a negative hair-follicle test 

within the last month.

Ashley also testified at the TPR hearing and stated that she had recently moved in 

with her sister, Felicia Hollinger, because of Jennings’s recent positive hair-follicle test. She 

stated that after learning of the positive test, she ended her relationship with him and 

removed all her belongings from the home they had shared. Ashley denied having any 

knowledge that Jennings was using methamphetamine but admitted that she thought he was 

smoking marijuana. Ashley stated that after the children had been removed from her because 

of her arrest and drug use, she had quit using drugs for nine months but relapsed in March.

She explained that she spent the first four months of the case in jail, and upon her 

release, went for the drug-and-alcohol assessment and immediately began attending the 

recommended outpatient-treatment program—completing the required twelve-week 

sessions in December 2015. But Ashley admitted that she had never received her certificate 

of completion because she waited too long to turn in the required paperwork about NA/AA 

meetings and copies of her prescriptions. Ashley admitted relapsing around March and using 

methamphetamine for approximately a month. She stated that once she failed the hair-
Cite as 2017 Ark. App. 458

7 

follicle test, Dancer referred her for another assessment and that she went for her intake 

appointment in August. Ashley denied using any drugs from the time of the positive screen 

until she began treatment. She stated that she had been employed at Sonic for several months 

and that she brought home approximately $380 every two weeks. Ashley admitted that she 

never told Dancer about her overdose that resulted in her stay at Levi Hospital because 

Dancer had already told her that she was not going to get another chance to prove herself 

and have another hair-follicle test because treatment had obviously not helped her. She also 

stated that Dancer never referred her to inpatient drug treatment, but she did state that the 

outpatient treatment and attendance at NA/AA helped her to stay clean. Ashley stated that 

she had visitation with the children every Tuesday and that she never missed a visit through 

any fault on her part. Ashley reiterated that she just needed a little more time to show her 

stability so that her children could come home.

The trial court entered an order terminating Ashley’s parental rights on December 

19, 2016. In the TPR order, the trial court found that ADHS had proved each of the three 

grounds alleged in its petition. The trial court also found by clear and convincing evidence 

that termination was in the best interest of the children. Ashley filed a timely notice of appeal 

on January 9, 2017. 

II. Standard of Review and Relevant Law

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

Human Servs., 2017 Ark. App. 374, __ S.W.3d __. 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(b)(3) (Repl. 
Cite as 2017 Ark. App. 458

8 

2015); Bunch, supra. Clear and convincing evidence is that degree of proof that will produce 

in the factfinder a firm conviction as to the allegation sought to be established. Bunch, supra. 

The purpose of terminating a parent’s rights to his or her children is to provide permanency 

in the child’s life when returning the juvenile to the family home is contrary to the child’s 

health, safety, or welfare, and it appears that a return to the family home cannot be 

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

Code Ann. § 9-27-341(a)(3). A heavy burden is placed on a party seeking termination 

because termination of parental rights is an extreme remedy in derogation of the natural 

rights of the parents. Bunch, supra. We will not reverse a termination order unless the trial 

court’s findings were clearly 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. Id. 

III. Discussion

A. Proof of Grounds Supporting the TPR Order

A court may order TPR if it finds there is an “appropriate permanency placement 

plan” for the child, section 9-27-341(b)(1)(A), and further finds by clear and convincing 

evidence that TPR 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). 

Additionally, there must be 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).
Cite as 2017 Ark. App. 458

9 

Proof of only one statutory ground is sufficient to terminate parental rights. Contreras 

v. Ark. Dep’t of Human Servs., 2015 Ark. App. 604, 474 S.W.3d 510. We turn to the first 

ground found by the court: the failure-to-remedy ground, codified at Arkansas Code 

Annotated section 9-27-341(b)(3)(B)(i)(a), which provides as follows:

[t]hat a juvenile has been adjudicated by the court to be dependent-neglected and 

has continued to be out of the custody of the parent for twelve (12) months and, 

despite a meaningful effort by the department to rehabilitate the parent and correct 

the conditions that caused removal, those conditions have not been remedied by the 

parent. 

This particular ground requires that (1) the child be adjudicated dependent-neglected, (2) 

the child be out of the custody of the parent for twelve months, and (3) the parent failed to 

remedy the conditions that caused the child’s removal. Jackson v. Ark. Dep’t of Human Servs.,

2013 Ark. App. 411, 429 S.W.3d 276.

In the TPR order, the trial court found that Ashley had failed to remedy the cause 

of her children’s removal because she had relapsed after having completed drug treatment, 

had concealed it from ADHS, and had not completed any further treatment. Ashley argues 

that these findings are not supported by the evidence adduced at the TPR hearing. Rather, 

she maintains that the evidence demonstrated that she was sober at the TPR hearing, was 

participating in drug treatment, and was in compliance with the terms of her criminal 

sentences. 

We disagree. This case was opened due to Ashley’s drug use and her maintaining a 

drug-sale premises. Eleven months into the case, Ashley, by her own admission, relapsed 

into methamphetamine use. Subsequently, thirteen months into the case, Ashley tested 

positive for methamphetamine, amphetamine, and hydrocodone. Regarding the drug issues 
Cite as 2017 Ark. App. 458

10

that caused this case to open, negative drug screens alone were not sufficient to demonstrate 

a successful remediation of those issues. Although Ashley made some progress on her drug 

issues during the pendency of this case, she did not, sufficiently demonstrate the capacity to 

remain drug free.

Despite Ashley’s claim that her relapse was not a failure to remedy, but rather an 

isolated “setback,” we note that at the end of the case, Ashley’s recently acquired sobriety 

was fragile; this would have subjected her children to potential instability should she again 

relapse into drug use which, based on her history, was more than a speculative possibility. 

Only when she was confronted with a positive test for methamphetamine approximately 

thirteen months into the case did Ashley begin to take steps toward addressing her drug 

issues. Although she claimed that she is no longer in a relationship with Jennings, who was 

also a codefendant in her criminal case, the trial court did not believe that the two were 

truly separated or that she did not know he was using drugs, noting that Ashley had separated 

from Jennings the weekend just before the TPR hearing because he had tested positive for 

methamphetamine. Evidence of parental improvement as TPR becomes imminent, 

however, will not outweigh other evidence that demonstrates a failure to remedy the 

situation that caused the children to be removed in the first place. Ark. Code Ann. § 9-27-

341(a)(4)(A); see also Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 

391 (2005). Further, we note that Ashley did not complete the court-ordered drug 

treatment.

We hold that the court’s finding that appellant failed to remedy her parental unfitness 

due to her instability is not clearly erroneous. Because ADHS was required to prove only 
Cite as 2017 Ark. App. 458

11

one statutory ground, we do not address the other two grounds. Shawkey v. Ark. Dep’t of 

Human Servs., 2017 Ark. App. 2, 510 S.W.3d 803.

B. Children’s Best Interests

In determining “best interest,” the trial court is required to consider two factors: (1) 

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

addressing the effect on the health and safety of the child, caused by returning the child to 

the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)–(ii). 

Because Dancer testified that she believed both children to be adoptable, despite the 

troubles faced by J.H., Ashley does not challenge the trial court’s finding regarding the 

likelihood of adoptability. But that is only one factor to be weighed when determining 

whether TPR is in the children’s best interest. To be certain, a natural parent’s rights cannot, 

and should not, be terminated simply because a child is adoptable. The best-interest analysis 

requires more. See Ark. Code Ann. § 9-27-341(b)(3)(A)(i)–(ii). Ashley argues that the trial 

court erroneously concluded that D.H. and J.H. faced a risk of potential harm if returned 

to her custody.

A trial court is required to consider only the potential harm to the health and safety 

of a child that might result from continued contact with the parents and is not required to 

find that actual harm would result. See McFarland v. Ark. Dep’t of Human Servs., 91 Ark. 

App. 323, 210 S.W.3d 143 (2005). The potential-harm evidence must be viewed in a 

forward-looking manner and considered in broad terms. Dowdy v. Ark. Dep’t of Human 

Servs., 2009 Ark. App. 180, 314 S.W.3d 722. But even with such wide latitude allowed in 

evaluating potential harm, Ashley maintains that there was still insufficient evidence before 
Cite as 2017 Ark. App. 458

12

the trial court to support a conclusion that D.H. and J.H. faced a substantial risk of harm if 

returned to her custody. 

We disagree and hold that a review of the record does not leave us with a firm 

conviction that the potential-harm finding was a mistake. At the time of TPR, after eighteen 

months, Ashley had not demonstrated sufficient sobriety for any meaningful length of time, 

she had not completed drug treatment, and it was not clear whether she had severed her 

relationship with a partner who had tested positive for drugs. Although Ashley considers her 

positive drug test an isolated “setback,” we focus not on how often she tested positive, but 

when she tested positive. 

Ashley admitted relapsing in March 2016—eleven months after removal of the 

children—and tested positive in May 2016—thirteen months into the case. Based on those 

facts, the trial court could not be certain Ashley had made significant material progress 

toward lasting sobriety. In Dinkins v. Arkansas Department of Human Services, 344 Ark. 207, 

40 S.W.3d 286 (2001), our supreme court noted that where the mother had been receiving 

services but had still not managed to comply consistently with her case plan, TPR was 

appropriate to effectuate the intent of the statute. Id. The court gave due deference to the 

trial court, which had observed the witnesses first-hand. Id. 

This court has considered a parent’s substance abuse as a factor in support of 

termination. See Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703; 

see also Humbert v. Ark. Dep’t of Human Servs., 2015 Ark. App. 266, 460 S.W.3d 316. In the 

present case, Ashley’s overall history, including recent events that occurred during the last 

few months of the case, such as her positive tests for methamphetamine and hydrocodone, 
Cite as 2017 Ark. App. 458

13

played an integral part in the trial court’s decision to terminate Ashley’s parental rights. Even 

though Ashley had completed parts of the case plan and seemed to participate during parts 

of the case, partial compliance with a case plan does not justify reversal of a termination case 

if the parent continued to make decisions adverse to the child—in this case, abuse of illegal 

drugs and positive drug tests. In this case, the completion of portions of the case plan did 

not achieve the intended result of making Ashley capable of caring for her children. See

Wright v. Ark. Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003).

The trial court was not required to believe Ashley’s self-serving testimony that she 

had remedied her drug problem and would remain drug free without completing drug 

treatment. Ashley’s relapse after at least eleven months of court supervision demonstrated 

the potential harm the children would face if returned to Ashley. See Tillman v. Ark. Dep’t 

of Human Servs., 2015 Ark. App. 119, at 4 (stating that the mother’s “continued use of drugs 

showed potential harm to the children”); Allen v. Ark. Dep’t of Human Servs., 2011 Ark. 

App. 288, 384 S.W.3d 7. 

Affirmed. 

HARRISON and KLAPPENBACH, JJ., agree. 

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant. 

Andrew Firth, Office of Chief Counsel, for appellee.

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

children.