Full Opinion

Cite as 2026 Ark. App. 477 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-26-292 JORDAN TOLBERT Opinion Delivered October 7, 2026 APPELLANT APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT V. [NO. 72JV-24-365] ARKANSAS DEPARTMENT OF HONORABLE BETH STOREY BRYAN, HUMAN SERVICES AND MINOR JUDGE CHILD APPELLEES AFFIRMED CINDY GRACE THYER, Judge Jordan Tolbert appeals from the order of the Washington County Circuit Court terminating her parental rights to her daughter, Minor Child (MC). On appeal, Tolbert does not challenge the statutory bases for the termination decision. Rather, she argues that the circuit court erred in terminating her parental rights when she had not been offered reasonable accommodations under the Americans with Disabilities Act; in addition, she asserts that the court erred in not appointing her a guardian ad litem. We find no error and affirm. The Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on MC hours after her birth on May 31, 2024. A social worker at Willow Creek Women’s Hospital contacted DHS on May 30 because Tolbert, who was scheduled to be induced that day, was acting erratically. She had tested positive for cocaine on May 29 and had had multiple positive tests for drugs during the course of her pregnancy. Tolbert also left the hospital against medical advice after her water broke, although she returned to the hospital later. DHS determined that a seventy-two-hour hold was necessary: MC did not have a competent legal caretaker because Tolbert had been placed on a psychiatric hold in the behavioral-health unit at Northwest Medical Center and Tolbert was suspected of using drugs. DHS filed a petition for emergency custody and dependency-neglect on June 3, 2024, and the court entered an ex parte order for emergency custody the same day. That order also appointed counsel for Tolbert. The court entered a probable-cause order on July 3 (following a hearing conducted on June 4) finding that it was contrary to MC’s welfare to be returned to Tolbert’s custody. The court cited multiple factors in support of its finding: Tolbert was under an involuntary mental-health hold at the time of MC’s birth; she tested positive for cocaine at the time of MC’s birth; cord-blood results showed that MC had been exposed to cocaine; and Tolbert has a history of mental-health issues that had previously impeded her ability to parent.1 Adjudication hearings were held on August 7 and September 26; Tolbert was represented by counsel at both. The court adjudicated MC dependent-neglected on the basis of neglect and parental unfitness, citing Tolbert’s mental-health instability and illegal drug use. The court set the goal of the case as reunification and granted Tolbert supervised 1 Another child was removed from Tolbert’s custody in 2019. That child was placed in a guardianship with Tolbert’s parents. 2 visitation with MC once a week on the condition that she remain civil to the DHS staff supervising the visits. DHS and the attorney ad litem filed a joint motion to suspend supervised visitation on December 11, 2024, arguing that Tolbert had “consistently demonstrated a pattern of inappropriate behaviors” and was rude to DHS staff. In addition, the motion alleged that Tolbert had “demonstrated unsafe parenting practices during visits, such as attempting to feed the juvenile powdered formula without a bottle.” The court granted the motion the same day, suspending visitation and all contact between Tolbert and MC until further order of the court. Following a January 15, 2025 review hearing, the court kept MC in DHS’s custody, finding that Tolbert had not meaningfully engaged in reunification services, had not maintained stable housing or employment, had recently been ordered to be involuntarily committed to a mental-health institution for evaluation based on a finding that she was a danger to herself or others, and had tested positive for cocaine on December 5, 2024. The review order also cited testimony from the hearing, including that of Tolbert’s father, who said that he had sought Tolbert’s involuntary commitment because she had posted videos and posts online asking for jobs as an assassin and seeking someone to kill him. He further testified that Tolbert had had mental-health issues for years and had hospital stays dating back to when she was fourteen years old. The order also noted Tolbert’s testimony wherein she had said she would like to go by the name “Katie” and that her father had murdered her mother. The court concluded that Tolbert was not mentally stable and that visits between 3 her and MC would be emotionally damaging to the child. After finding Tolbert noncompliant with the case plan, the court continued the goal of the case as reunification. A permanency-planning hearing was held in May 2025. In the ensuing order, the court found that Tolbert was in minimal compliance with the case plan. The court emphasized that it still had serious concerns about her mental health needs “and the delusions that [she] still seems to have at this time.” The court found that Tolbert had not maintained stable housing or employment, had not maintained consistent contact with DHS, had not participated in individual counseling or followed the recommendations of her psychological evaluation, and had not visited with MC since December when her visits had been suspended. The court authorized a plan for adoption, with DHS filing a petition for termination of parental rights. DHS filed its petition on June 3, 2025. A termination hearing was scheduled for July 24, but Tolbert sought a continuance due to a recent change in parent counsel. The court reset the hearing for August 8, 2025. The court continued the case again at the August 8 setting. On August 29, 2025, the court dismissed the petition because it was unable to schedule a termination hearing within the ninety days permitted by Arkansas Code Annotated section 9-35-325(d) (Supp. 2025) (formerly codified at Ark. Code Ann. § 9-27- 341(d) (Repl. 2020)). DHS filed a second petition for termination of parental rights on August 29. As grounds for termination, DHS cited twelve months failure to remedy, subsequent other factors, and aggravated circumstances. 4 The termination hearing was held on December 5, 2025. Because Tolbert does not challenge the sufficiency of the evidence supporting the statutory grounds for termination or the circuit court’s best-interest determination, we summarize the facts presented by the witnesses at the hearing. Before testimony began, Tolbert requested a Slovak translator, claiming that she spoke only broken English and that it was difficult for her to understand what was being said. She said that English is her “fifth language.” The court declined to appoint a translator, saying it had understood throughout the case that English was Tolbert’s primary language. Patricia Tabb, Tolbert’s mental-health therapist, described Tolbert’s apparent struggles to complete her telehealth sessions and said that Tolbert needed to be in residential treatment or in a hospital. She noted, however, that Tolbert did not appear to be open to treatment and had told Tabb that she was not taking any medication. Tabb eventually discontinued her sessions with Tolbert because she was combative and noncompliant. It was her opinion that Tolbert needed intensive inpatient treatment. Tolbert testified that she was living in an apartment in Fayetteville on which her parents had cosigned the lease. She called her parents, Whitney and James Tolbert, “the foster placement” and described them as her “old roommates”; she also denied that they are her parents. She said she was seeing a psychiatrist who told her the only medication that might help her was Adderall for her ADHD; she also claimed that she did not need psychiatric-management treatment through medication. She described her current 5 psychiatric treatment and other medical issues but denied that she is mentally ill, saying she has PTSD and physical disabilities such as high blood pressure and anemia. Tolbert claimed that MC was taken into foster care because she was raped on the way to the hospital and could not figure out a way to tell the hospital. She denied that MC had tested positive for cocaine when she was born and said she had never used cocaine. She acknowledged having been involuntarily committed to psychiatric care at the time of MC’s birth, saying she had not been making sense to the doctor. She denied any substance abuse and said that her only mental-health diagnoses were PTSD, ADHD, and autism-spectrum disorder. She agreed that she had been involuntarily committed in December 2024 and said that after being released from that hold, she was homeless from February through June 2025. Tobert said that since her last stint in inpatient treatment, she had seen two or three different therapists. She quit seeing the first one because she diagnosed her with autism-spectrum disorder. Other than seeing those therapists, she managed her mental-health needs with meditation, exercise therapy, and Pilates. On cross-examination, Tolbert claimed to have gone to over one hundred hours of meetings at her church that were equivalent to AA/NA meetings, despite her assertion that she never did drugs. When counsel asked whether Tolbert understood why they were in court, she said “not since . . . our first court date.” She recalled, however, that the first court date had been over a year ago, and she said she was still working on the same goal as before, which was to get her kids back. She again claimed that ADHD and PTSD were “all [her] mental illnesses.” 6 At the conclusion of Tolbert’s testimony, her attorney argued to the circuit court that she did not think Tolbert had demonstrated a full understanding of what was happening. Accordingly, counsel stated, “[A]nd so I would ask for a . . . continuance in order that my client be able to get appropriate treatment longer term than whatever she received last time when she was involuntarily committed by the court. And then once she gets that treatment and can fully understand what this process is and what is even happening here today, then continue the hearing at that time.” DHS’s counsel responded that the case had been going on for a year and half and said it was “pretty clear today that this is another delay tactic.” The court asked whether DHS had any sort of requirement or obligation to “restore fitness, for lack of a better word.” DHS acknowledged that it was required to provide reasonable efforts but added that the agency had referred Tolbert to therapists throughout the case and that Tolbert had been hesitant and reluctant to participate in therapy. Counsel said she believed “that this is a situation that cannot just be remedied by the Department.” Throughout the duration of the case, the court had consistently found that DHS had made reasonable efforts, yet Tolbert had been unwilling to admit that she had mental-health issues and had been unwilling to participate in the treatment that DHS had arranged for her. DHS therefore objected to continuing the case. The ad litem suggested that what Tolbert’s counsel was raising was a question of fitness to proceed, and if that were the case, the appropriate thing would be for parent counsel to move for the appointment of a guardian ad litem for her client or to seek some 7 other type of hearing to determine her capacity. That had not happened either with current counsel or Tolbert’s previously appointed counsel, despite “having had numerous opportunities for her counsel to seek that information.” The ad litem suggested that none of Tolbert’s testimony had specifically indicated that she was unable or unfit to proceed; however, if the court were to make a finding that Tolbert was unfit to proceed, the ad litem asked the court to appoint a guardian ad litem. The court agreed with the attorney ad litem that, considering her testimony, Tolbert was fit to proceed and had an understanding of the purpose of the hearing. Parent counsel disagreed, saying Tolbert was “not fully cognizant of why we’re here.” Counsel pointed out that she had just been appointed for the termination hearing and stated, “I have not been here throughout the pendency of this case, and that was actually going to be my next request was to not only have DHS see to it that she gets inpatient treatment that she obviously requires. And––but that also she is appointed a guardian ad litem.” The court denied the request. The court then resumed taking testimony. Peyton Lee, the foster-care worker on the case for much of 2025, said that Tolbert had completed a psychological evaluation, which recommended that she undergo counseling, get clean, and obtain psychiatric help and medication. Tolbert followed some of the recommendations, but she did not consistently engage in individual counseling. When Lee asked her about her counseling, Tolbert was “very cagey, very dodgy,” and would become combative when Lee pressed her on the matter. It was Lee’s understanding that Tolbert had been diagnosed with bipolar disorder and 8 schizophrenia. She said that Tolbert had been prescribed an antipsychotic medication, and although she occasionally saw Tolbert with a pill bottle, she was unsure whether she was actually taking the medication. She knew that when Tolbert was discharged from an inpatient treatment, the recommendation was that she continue with outpatient treatment and take her medication, but it was unclear whether she actually followed through. Lee also offered testimony about the services that had been offered to Tolbert, including parenting classes and a drug-and-alcohol assessment. She said, however, that even if Tolbert had complied and done all the things asked of her, DHS was still concerned that she might not be a fit parent because of her mental-health issues. Alicia Crihfield, the current caseworker, testified that MC was placed with her maternal grandparents, Whitney and James Tolbert, where she was thriving. She said that if Tolbert’s parental rights were terminated, it was very likely that MC would be adopted, either by her current placement or “somebody else as well that’s a family friend.” Crihfield explained that the root issues throughout the case had been Tolbert’s mental health, her participation in services, and her ability to demonstrate that she can be an adequate caregiver for MC. She said that MC came into care in part because her cord blood tested positive for cocaine and in part because Tolbert was homeless and had mental-health needs. Crihfield opined that Tolbert had not remedied those issues. She noted that Tolbert tested positive for cocaine in June and had not been participating in services for her mental health; as a result, DHS could not say that she could adequately take care of MC. She added, “[U]ntil her mental health’s addressed where we feel that she’s safe to be around, we can’t start family 9 time.” Crihfield testified that there were no other services DHS could provide and nothing they could do for her mental health, which was “the biggest concern at the moment.” DHS could recommend help from medical professionals, but it could not have her committed. Crihfield said DHS recommended that the goal of the case be adoption and that Tolbert’s parental rights be terminated. Tolbert’s parents both testified at the hearing as well. James Tolbert explained that Tolbert began demonstrating antisocial behaviors when she was a child and had first been hospitalized for depression at the age of fourteen. She had seen therapists and psychiatrists who prescribed medications and treatments, but she was noncompliant with those attempted remedies and had continued to decline over the last ten years. According to James, Tolbert had been diagnosed with schizophrenia, bipolar disorder, and manic episodes, and there had “been some conversations” about her having dissociative-identity disorder. He described how her condition had worsened as she became less compliant with taking her medication and how she now seemed to “stay more in that state of hallucinations, delusions.” He was concerned first and foremost with MC’s safety should she be returned to Tolbert. He added that MC needed the best chance at a productive life, and he did not “think she would have that opportunity if returned” to her mother. Whitney Tolbert testified that Tolbert had had problems from a very young age, and they had gotten much worse over the past ten years or so. Whitney explained that Tolbert had been diagnosed with anxiety, depression, various types of mood disorder, bipolar disorder, and possibly borderline personality disorder. Interactions with her daughter were 10 usually confrontational and rarely positive. The longest period of time Tolbert had been consistently stable was a stretch of about seven or eight months in 2019 to 2020, when Whitney made sure she was taking her antipsychotic medication. Since 2020, she had not been consistently compliant with any sort of treatment. Whitney expressed concern that Tolbert could not take care of herself, and if MC were returned to her, MC would not be taken care of at all. She was unsure if Tolbert would even know who MC was if she were returned to her. At the conclusion of the hearing, the court found that Tolbert had not remedied the conditions that caused removal; specifically, she had not maintained her mental-health treatment to an extent that would allow her to be stable enough to take custody of MC. The court concluded that it was unlikely that continuing services from DHS would help her, given that she refused mental-health treatment and medication and denied she had mental illness. In short, the court found that termination of Tolbert’s parental rights was in MC’s best interest. A written order terminating Tolbert’s parental rights was entered on January 5, 2026. The court found first that Tolbert was fit to proceed with the hearing, noting that she understood and answered the questions asked of her. Regarding grounds, the court found that DHS proved that MC had remained out of custody for more than twelve months and that Tolbert had not remedied the conditions that caused removal “because Mother has not maintained her mental health treatment and it is obvious that she still suffers from mental illness today.” The court also found that other subsequent factors existed, including Tolbert’s 11 involuntary commitment during the course of the case and her ongoing denial that she suffered from mental illness. Finally, the court found that DHS had proved the existence of aggravated circumstances, noting that DHS had offered appropriate family services throughout the case, but Tolbert’s inability to take her mental-health needs seriously clearly demonstrated that there was little likelihood that services to the family would result in successful reunification. As to MC’s best interest, the court cited the testimony that an adoptive home had already been identified for MC and found that MC is highly adoptable. Potential harm, the court wrote, was evidenced in Tolbert’s failure to maintain her mental-health treatment to the extent that she could safely care for MC. Accordingly, the court terminated Tolbert’s parental rights. Tolbert filed a timely notice of appeal on January 6, 2026. A circuit court’s order terminating parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9-35-325(b)(3). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep’t of Health & Hum. Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the circuit court’s ruling unless its findings are 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. In determining whether a 12 finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit court to judge the credibility of witnesses. Id. In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential 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. § 9-35- 325(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-35-325(b)(3)(B). However, only one ground must be proved to support termination. Reid v. Ark. Dep’t of Hum. Servs., 2011 Ark. 187, 380 S.W.3d 918. Tolbert does not challenge the statutory grounds for termination or the circuit court’s best-interest determination. As such, she has abandoned any challenge to the sufficiency of the evidence supporting termination on appeal. See Heath v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 255, 576 S.W.3d 86; Isbell v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 110, 573 S.W.3d 19. Instead, her first argument on appeal is that the circuit court erred in failing to ensure that she received reasonable accommodations under the Americans with Disabilities Act (ADA). Arkansas Code Annotated section 9-35-325(b)(3)(B)(vii)(b) requires DHS to “make reasonable accommodations in accordance with the Americans with Disabilities Act of 1990 . . . to parents with disabilities in order to allow them meaningful access to reunification and 13 family preservation services.” Tolbert contends that there was ample evidence throughout the case that demonstrated her disability, which is defined in the ADA as “[a] physical or mental impairment that substantially limits one or more major life activities of [an] individual.” 42 U.S.C. § 12102(a)(A). As such, she asserts that the court erred in failing to ensure that DHS provided her with the required “reasonable accommodations.” Tolbert’s argument, however, is not preserved for appeal because she never raised or established that she was entitled to ADA protection below, nor did the circuit court make any ruling on that argument. See Isbell, supra; Gilmore v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 614, at 9, 379 S.W.3d 501, 506. Tolbert nonetheless argues that because the matter touches on her due-process rights, the issue falls within the third exception to the contemporaneous-objection requirement set forth in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).2 This court, however, has consistently held that it will not apply the third Wicks exception to reach an unpreserved argument regarding reasonable accommodations under the ADA in a termination case. Pratt v. Ark. Dep’t of Hum. Servs., 2012 Ark. App. 399, at 13–14, 413 S.W.3d 261, 267–68; see also Copp v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 491, at 26–27, 679 S.W.3d 380, 397; Snider v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 502, at 7, 612 S.W.3d 199, 204; Weathers v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 142, at 11, 433 S.W.3d 271, 277. 2 The third Wicks exception relates to the circuit court’s duty to intervene, even without an objection, to correct a serious error. This exception is rarely applied. See Strickland v. State, 2010 Ark. App. 599, 378 S.W.3d 157. 14 In her second point on appeal, Tolbert asserts that in light of her significant mental- health issues, the circuit court had a duty to appoint a guardian ad litem for her early in the case so that her due-process rights would be adequately safeguarded.3 We find no merit to her argument. This court has held that there is no error in failing to appoint a guardian ad litem when a mentally ill parent is already represented by counsel. See Owen v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 413, at 7–8, 587 S.W.3d 586, 589–90; see also Hamm v. Off. of Child Support Enf’t, 336 Ark. 391, 395, 985 S.W.2d 742, 744 (1999) (noting that a court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action) (emphasis in original). As such, we cannot say that the circuit court erred in declining to appoint Tolbert a guardian ad litem. Affirmed. GLADWIN and MURPHY, JJ., agree. Lindsey D. Tosh, 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. 3 As noted above, Tolbert’s counsel did not ask for the appointment of a guardian ad litem until partway through the termination hearing. 15