Full Opinion

Cite as 2026 Ark. App. 430 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-26-95 TIMOTHY BOGER Opinion Delivered September 23, 2026 APPELLANT APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT V. [NO. 72JV-24-381] ARKANSAS DEPARTMENT OF HONORABLE DIANE WARREN, HUMAN SERVICES AND MINOR JUDGE CHILD APPELLEES AFFIRMED ROBERT J. GLADWIN, Judge This is an appeal of the Washington County Circuit Court’s order terminating appellant Timothy Boger’s parental rights to his minor child, MC. On appeal, Boger maintains that this court should reverse the termination because it was not in MC’s best interest. Specifically, Boger contends that there was insufficient evidence regarding the court’s potential-harm finding. We affirm. I. Background Facts On June 10, 2024, the Arkansas Department of Human Services (DHS) removed MC from the custody of her mother, Kayla Dodson (“Dodson”), due to Dodson’s use of illegal substances. DHS filed a petition for emergency custody and dependency-neglect on June 12, and the circuit court granted the request for emergency custody of MC on the same day. On June 13, the circuit court held a probable-cause hearing wherein the court held that probable cause existed to enter the emergency custody order to protect MC’s well-being from immediate danger. The court further held that probable cause still existed to protect MC and that the return to either Dodson or Boger, at the time, was contrary to MC’s welfare because Dodson tested positive for methamphetamine and Boger lived out of state and “[had] not had a consistent relationship with [MC] in several years.” Additionally, the court ordered both parents to cooperate with DHS; to refrain from using illegal drugs and alcohol; to submit to random drug screens; to maintain appropriate and stable housing; and to demonstrate the ability to protect MC. The circuit court adjudicated MC dependent-neglected on July 31 on the grounds of neglect and parental unfitness due to Dodson’s substance use. Boger testified at the adjudication hearing that he was previously incarcerated for possession of methamphetamine and was released in April 2024. The court set the goal of reunification and ordered both parents to comply with its previous orders and follow their case plans. On November 20, 2024, the circuit court held a review hearing. The circuit court held that Boger was in partial compliance with the case plan and was cooperating with Indiana’s Interstate Compact on the Placement of Children (ICPC) process. However, the circuit court expressly held that Boger was required to show stability and sobriety—over a sufficient period of time—before the court would consider placement with him to be in MC’s best interest. Accordingly, the court continued the goal of reunification, found that DHS 2 made reasonable efforts in the case, and ordered the parents to comply with all previously ordered services. Another review hearing was held on January 15, 2025. The goal of reunification was continued, and the circuit court held that Boger had partially complied with his case plan. The circuit court, however, noted that Boger testified he was currently “not working” because the bowling alley where he was employed had closed for remodeling and, furthermore, that his mother now had guardianship of one of his children due to the conditions of the family’s home in Indiana. The court found that DHS had made reasonable efforts; ordered the parents to comply with the previously ordered services; and ordered Boger to submit to a drug screen before leaving court. On May 27, 2025, the circuit court held a permanency-planning hearing. The circuit court held that Dodson was not in compliance with the case plan. Regarding Boger, the circuit court stated as follows: [T]he situation is such that it is unlikely that [MC] could safely be placed with [Boger] within three months. He has received a denial of placement through ICPC due to substance abuse issues and criminal history. The ICPC denial recommended that he participate in six additional months of services. It is not reasonable to believe that [MC] could be placed with [Boger] within a reasonable amount of time, and not within three months. Neither parent has shown that they have made significant and measurable progress towards the case plan goals or towards remedying the conditions that caused removal and prevented placement. Thus, the permanency goal is changed to adoption. The circuit court found that DHS had made reasonable efforts towards the case plan goal. On August 8, 2025, DHS filed a petition to terminate Boger’s and Dodson’s parental rights. On September 9 and October 20, 2025, the circuit court held a termination-of- 3 parental-rights hearing wherein it terminated both Dodson’s and Boger’s parental rights to MC. Specifically, the circuit court held that Boger continued to test positive for THC and tested positive as recently as September 9, 2025. The court found that DHS proved by clear and convincing evidence that MC had been out of the home of the noncustodial parent, Boger, for more than twelve months, and the conditions that prevented placement with Boger had not been remedied. Additionally, the circuit court held that additional services were not likely to result in successful reunification. Boger filed a timely notice of appeal; this appeal followed. II. Standard of Review Termination-of-parental-rights appeals are reviewed de novo, but this court does not reverse in the absence of clear error. Dinkins v. Ark. Dep’t of Hum. Servs., 344 Ark. 207, 40 S.W.3d 286 (2001); Drake v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 475, 442 S.W.3d 5. 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. § 9-35-325 (Supp. 2025); M.T. v. Ark. Dep’t of Hum. Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). 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. Shaffer v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 208, 489 S.W.3d 182. The appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. 4 III. Discussion Boger’s sole argument on appeal is that the circuit court erred in its potential-harm finding; thus, the order terminating his parental rights to MC should be reversed. We disagree. Specifically, Boger contends that the circuit court’s order should be reversed because he made significant progress on his case plan; independently found and attended parenting classes; attended therapy sessions; attended his weekly Zoom meetings with MC; and had a home of his own and stable income. Boger argues that he was constrained by distance and travel costs to Arkansas for the in-person visits with MC, and DHS failed to offer him financial assistance. Furthermore, Boger reiterates that on the basis of the ICPC home study, he believed that “Delta vapes” are legal in the State of Indiana and would therefore not constitute a positive drug test. Boger acknowledges that he is not a “perfect parent” and has had “lapses of judgment”; however, he maintains that his lapses do not rise to a level justifying the permanent severance of the bond between him and MC. Termination of parental rights is a two-step process that requires the circuit court to find at least one statutory ground for termination and that termination is in the juvenile’s best interest. E.g., Cole v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 481, 611 S.W.3d 218. To make a best-interest finding, the circuit court is generally required to consider two factors: (1) the likelihood of adoption and (2) the potential harm that would result to the juvenile if he or she were returned to the parent’s custody. Id. However, a best-interest finding as a whole—rather than each factor—must be supported by clear and convincing evidence. Id. 5 Further, on appeal, an appellate court will give due deference to the circuit court’s personal observations and ability to judge the credibility of witnesses. Id. Because Boger failed to challenge either the statutory grounds or the adoptability factor of the circuit court’s best- interest finding, this court is not required to address these issues on appeal. E.g., Easter v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 441, 587 S.W.3d 604. Here, we must disagree with Boger’s argument that the court’s finding of potential harm is clearly erroneous because he was partially complying with the case plan. There is evidence in the record that, despite Boger’s participation in substance-abuse classes, he continued to test positive for THC. See Bridges v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 50, 571 S.W.3d 506 (noting that continuing drug use demonstrates potential harm to children). Furthermore, while Boger cites his progress and completion of parenting and counseling classes, he is merely asking this court to reweigh the evidence, which we will not do. E.g., Glover v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 278, 577 S.W.3d 13. Moreover, Boger’s argument that he is not required to be a “perfect parent” in order to retain his parental rights, as well as his citation to Mason v. Arkansas Department of Human Services, 2022 Ark. App. 124, 642 S.W.3d 260, in support, is also unavailing. Mason is distinguishable from this case because, unlike Boger, the appellant in Mason had indisputably complied with the case plan. Here, however, despite being ordered to abstain from all substances—including Delta vapes—Boger failed to do so. See Beavers v. Ark. Dep’t Hum. Servs., 2023 Ark. App. 508, at 12, 679 S.W.3d 437, 444 (rejecting appellant’s comparison to Mason and affirming the potential-harm finding based on positive drug tests); see also Lindsey v. Ark. 6 Dep’t of Hum. Servs., 2025 Ark. App. 491 (citing the appellant’s lack of compliance with the case plan as a reason for termination). Finally, Boger cites Arkansas Department of Human Services v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002), in support of his argument that an ICPC home study was not required for MC to be placed in his home, “despite the testimony at the termination hearing,” because such is not required in Arkansas when a child is returned by the sending state to a natural parent residing in another state. However, as noted by DHS, Boger failed to raise this issue at trial; therefore, he cannot now raise it on appeal because the argument is not preserved. See Scott v. Ark. Dep’t of Hum. Servs., 2026 Ark. App. 149, 732 S.W.3d 724. IV. Conclusion For the above-stated reasons, we affirm the circuit court’s order terminating Boger’s parental rights to MC. Affirmed. THYER and MURPHY, JJ., agree. Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant. Ellen K. Howard, Ark. Dep’t of Human Services Office of Chief Counsel, for appellee. Linda J. Hamilton, attorney ad litem for minor child. 7