Full Opinion

Cite as 2026 Ark. App. 534 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-26-120 Opinion Delivered November 4, 2026 TABATHA WILSON AND MATTHEW BURGESS APPEAL FROM THE FAULKNER APPELLANTS COUNTY CIRCUIT COURT [NO. 23JV-24-200] V. HONORABLE DAVID M. CLARK, JUDGE ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES AFFIRMED CASEY R. TUCKER, Judge Tabatha Wilson and Matthew Burgess appeal the Faulkner County Circuit Court’s order terminating their parental rights to MC (date of birth October 5, 2022). By separate briefs, they each argue that the Arkansas Department of Human Services (the Department) failed to prove a statutory ground for termination and failed to prove that termination was in the best interest of their child. We affirm. On June 18, 2024, the Department exercised a seventy-two-hour hold on MC.1 According to the affidavit in support of the emergency-custody petition, the Department received a report on May 28 that MC, who was one year old at the time, and an unknown 1 MC has an older half sibling who was removed from his parents in April 2013. Wilson’s parental rights to that child were involuntarily terminated in October 2014 due to her inability to remedy environmental neglect after twelve months. male infant were living in the house with a number of adults. The house was reported to be extremely filthy and in extreme disrepair. The children were reported to be unbathed on a regular basis, and Burgess had remarked that the unknown infant’s penis was swollen, and adhesion of the foreskin prevented retraction. The Department removed the children from the home and took them to Arkansas Children’s Hospital (ACH). The unknown infant belonged to Wilson’s sister, who left him in Wilson and Burgess’s care in December 2023, according to Wilson. He was underweight and had a sunken fontanel, tachycardia, and dry mucus membranes. He was admitted to ACH due to failure to thrive. At the time of the children’s removal, the caseworker found the house to be “nasty.” The children were dirty and smelled bad. Wilson’s nephew had red spots on various areas of his body. He was severely underweight to the extent that his ribs were visible. Wilson told the caseworker that she did not have food for her nephew, so she gave him protein shakes. MC did not appear to be underweight. The children were not wearing any clothes or shoes, possibly because the house was hot. The photographs taken by the family service worker support her sworn statement that the house was nasty and had dog feces, cigarette butts, trash, clothing, old food, and dirty diapers throughout the house. In fact, Wilson’s nephew was reported to have dog feces on his person when he was taken to ACH. A propane tank and a portable heater were in the bathroom, which was filthy. In one photograph, a baby is standing in a baby bed completely naked and holding a full diaper while watching TV. The photographs depict stacks and piles 2 of garbage and various discarded items in every room. Every visible surface is filthy. In some rooms, the floor is so coated in filth that it is impossible to tell what material the floor is. The court held the probable-cause hearing on June 25, 2024. The parties stipulated that probable cause existed when the Department exercised the seventy-two-hour hold and continued to exist based on the allegations in the petition. The court reserved the truth of the allegations for the adjudication hearing. The court held the adjudication and disposition hearing on July 24. It’s finding that MC was dependent-neglected and at substantial risk of serious harm was based on the parties’ stipulation that the allegations in the petition and affidavit were true—specifically, the allegations of environmental neglect and parental unfitness. The court noted that Wilson and Burgess had found new housing, which the caseworker found to be appropriate. The court set the goal as reunification with a concurrent goal of obtaining a permanent guardian. A review hearing took place on October 22, 2024. The court found that Wilson had complied with the case plan and court orders. She was not employed but had maintained the home in proper condition. She was attending visitation, which had been expanded to include weekend visits, and counseling. SafeCare was involved and working in the home. Wilson had “made much progress towards alleviating or mitigating the causes of [MC’s] removal from the home.” Likewise, Burgess was in compliance with the case plans and court orders. He remained employed; visits had been expanded to include weekends; and he was attending counseling. He too had “made much progress towards alleviating or mitigating the causes 3 for [MC’s] removal from the home.” The Department was in compliance with the case plan and court orders and had made reasonable efforts to provide family services to achieve the permanency plan of reunification. The court held another review hearing on January 21, 2025. 2 The court found that Wilson was in compliance with the case plan and court orders. She had appropriate housing, but the condition of the home had regressed “to a degree.” Wilson had been caring for MC’s needs during a trial home placement and had made much progress. Burgess also had made much progress. He was in compliance with the case plan, and he remained employed. The court noted again that the home’s condition had regressed to a degree but that Burgess was caring for MC’s needs during a trial home placement. The court ordered that visitation remain in the form of a trial home placement. The goal of the case was set at reunification with a concurrent goal of adoption. The Department was in compliance with the case plan and court orders. It had made reasonable efforts to provide the family services to achieve the goal of reunification. On April 22, the court held its third review hearing. 3 At that time Wilson and Burgess were in substantial compliance with the case plan and court orders. Wilson had 2 Wilson and Burgess had another baby on January 8, 2025. He is the subject of a separate case. The record in the present case was supplemented with the transcript of a review hearing in his case that occurred on the same day as the termination-of-parental- rights hearing in this case. 3 The trial home placement ended before this hearing because the condition of the home allegedly had declined, and the parents allegedly had not ensured that MC’s safety needs were met. 4 been referred for counseling and psychological evaluation. Burgess had been referred for psychological evaluation. The condition of the home had improved “dramatically,” “although certain dangerous items were still being left within the reach of a small child.” The court did not specify what the dangerous items were. Burgess remained employed, and Wilson planned to be a “stay-at-home parent.” The Department had complied with the case plan and orders and made reasonable efforts to provide family services to achieve the permanency plan of reunification. The goal of the case remained reunification with a concurrent goal of adoption. The court held the permanency-planning hearing on June 17, 2025. The court found that the goal of reunification was still appropriate, noting that “the parents have made significant and measurable progress that warrants continuing with that goal and reunification is likely to occur within the next 90 days.” Visitation remained the same. Wilson had complied with the case plan and court orders. She attended visitation and counseling, completed her psychological evaluation, attended parenting, and maintained the home in an appropriate condition. Burgess also had complied with the case plan and court orders. He had been in counseling, completed a psychological evaluation, had appropriate housing, and attended visitation. He had made “much progress towards alleviating or mitigating the causes of the juveniles’ removal from the home.” The Department was in compliance with the case plan and court orders and had made reasonable efforts to provide the family services to achieve reunification. 5 The fifteen-month review hearing was held on September 17, 2025, and the court found that reunification was no longer an appropriate goal. The court found that the concurrent goal of adoption was appropriate and ordered that it become the primary goal. The court ordered that visitation continue. Wilson and Burgess were compliant with the case plan and court orders. They continued to reside together in the home in Greenbrier, and that home was appropriate. Problems occurred during visitation: Wilson fell asleep and left the visitation room at times due to being overwhelmed. Wilson and Burgess brought inappropriate food to visitation and did not properly change the children’s diapers. Burgess did not know how to properly prepare the bottle for MC’s brother, which required the addition of a thickening agent due to the child’s swallowing problems. The court further found that Wilson and Burgess had made “some progress towards alleviating or mitigating the causes of the juveniles’ removal from the home.” The court found the Department to be in compliance with the case plan and court orders and to have made reasonable efforts to provide family services to achieve the permanency plan of reunification. The Department filed a petition to terminate Wilson’s and Burgess’s parental rights on September 29, 2026. It alleged three grounds for termination. The first ground was that MC had been adjudicated dependent-neglected and had continued out of the custody of the parent for twelve months, and despite meaningful efforts by the Department, Wilson and Burgess had failed to remedy the conditions that caused the removal. See Ark. Code Ann. § 9-35-325(b)(3)(B)(i)(a)(1) (Supp. 2025). The second ground was that other factors arose 6 subsequent to the filing of the original petition that demonstrate that placement of MC in the custody of his parents would be contrary to his health, safety, or welfare, and despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent factors. See Ark. Code Ann. § 9-35-325(b)(3)(B)(vii). Third, the Department alleged that the parents had subjected MC to aggravated circumstances in that a determination had been made by a judge that there is little likelihood that services to the family will result in successful reunification. See Ark. Code Ann. § 9-35- 325(b)(3)(B)(ix)(a)(3)(B)(i). The termination hearing was held on November 18, 2025. Caseworker Melinda Valentine testified that Wilson and Burgess did not benefit from the services the Department offered them. According to Valentine, the Department was still dealing with the same issues as when the case was opened. The trial home placement had failed due in part to Wilson’s admittedly forgetting to feed the children at times and the parents’ failing to properly clean the children and change their diapers. The children’s bottoms had skin missing due to severe diaper rash. In spite of Valentine’s instructing Wilson and Burgess to dispose of old food and drinks and to place medicine in a safe location unreachable by children, the parents continued to leave old food, drinks, and medicine readily accessible. Wilson and Burgess brought food to visitation that MC would not or could not eat. Wilson and Burgess fell asleep and played on their phones during visitation. They did not interact with MC. When MC threw tantrums, Burgess ignored him. Valentine testified that it was in MC’s best interest to terminate Wilson’s and Burgess’s parental rights because the Department had 7 been working with them for a long time, and they were “still having the same issues.” She did not think the problems would be fixed any time soon, and MC needed permanency. She testified that a potential harm of returning MC to his parents was that he would not be fed. She testified that although MC has autism, she did not foresee any barriers to MC’s being adopted. Rosland Davenport, who supervised visitations, testified at the hearing for MC’s brother that Wilson and Burgess did not interact with the children during their visitations. Wilson and Burgess brought food from Taco Bell and sandwiches for MC to eat during visitation, but MC would not eat these items. They ignored the list of foods that would be appropriate for MC to eat. Both Wilson and Burgess would sleep during visitation. Davenport testified that, in her opinion, if MC was returned to Wilson and Burgess, he would not be watched appropriately, he would eat old food and drink old drinks. There was a good chance he would get into the medications that his parents left within his reach. According to Davenport, the house was appropriate and livable. The problem was that the parents were leaving out items such as old food and medicine. The trial home placement ended because the children were not being fed or changed appropriately, and MC was eating old food off of the floor. Wilson and Burgess were not able to afford what they needed for the children. Davenport was required to take them food, diapers, and wipes. Even though she was taking Wilson and Burgess food and changing supplies, they failed to properly feed and change the children. Conditions in the home continued to worsen from November 2024 to January 30, 2025. 8 Wilson testified at both hearings. She testified that the trial home placement ended the same month she had MC’s younger brother. At that time, she was suffering from postpartum depression and was overwhelmed. Wilson’s doctor put her on medication for postpartum depression. Her counselor diagnosed her with anxiety and recommended an all- natural supplement, which Wilson was still taking at the time of the hearing. Wilson testified that after she had MC’s younger brother in January 2025, the doctor restricted her activities, and she had to rely on Burgess to clean the apartment. She admitted that Burgess left cups of drinks on his side table, which he eventually moved. Wilson testified that she is able to feed MC appropriately and had tried to feed him corn, carrots, beans, broccoli, and lettuce. According to Wilson, she and Burgess fell asleep during visitation when the children were napping. When MC was awake, they played with him. Wilson is unemployed and draws a disability check. She does not have a driver’s license. Burgess has maintained employment. The court terminated Wilson’s and Burgess’s parental rights to MC, finding all three bases alleged by the Department had been proved and that termination was in MC’s best interest. Wilson and Burgess timely appealed. A circuit court’s order terminating parental rights must be based on clear and convincing evidence of at least one statutory ground for termination listed in Arkansas Code Annotated section 9-35-325(b)(3)(B) and clear and convincing evidence that termination is in the best interest of the child. Ark. Code Ann. § 9-35-325(b)(3)(A) and (B). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm 9 conviction as to the allegation sought to be established. Hardy v. Ark. Dep’t of Hum. Servs., 2026 Ark. App. 343, 740 S.W.3d 265. This court reviews termination-of-parental-rights cases de novo but will not reverse the circuit court’s determination unless its findings are clearly erroneous. Barnes v. Ark. Dep’t of Hum. Servs., 2025 Ark. App. 559, 725 S.W.3d 848. “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. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses.” Id. at 10, 725 S.W.3d at 854. The circuit court found three statutory bases upon which to terminate Wilson’s and Burgess’s parental rights. However, since only one statutory ground is necessary to support the court’s decision, we focus on the subsequent-factor ground found at Arkansas Code Annotated section 9-35-325(b)(3)(B)(vii)(a), which provides for termination upon the court’s finding [t]hat 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. In the present case, the court consistently found that the Department provided appropriate family services aimed at achieving the goal of reunification.4 And the parents participated 4 Neither Wilson nor Burgess challenged this finding before the circuit court. 10 in the services offered them. However, even full completion of a case plan is not determinative of the outcome of a termination proceeding. Arnold v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 300, 578 S.W.3d 329. What matters is whether the parent has achieved the goal of being capable of caring for the child. Id. Despite the Department’s efforts and the parents’ participation in services, Wilson and Burgess both demonstrated an inability to appropriately and safely parent MC. The incapacity to apply what they should have learned from the Department’s services, classes, and redirection was a subsequent factor meeting the requirements of section 9-35- 325(b)(3)(B)(vii)(a). See Ealy v. Ark. Dep’t of Hum. Servs., 2024 Ark. App. 610, 701 S.W.3d 813. In addition to being unable to demonstrate appropriate parenting skills, Wilson and Burgess had a failed trial home placement, which also supports a finding of subsequent factors. See Cornier v. Ark. Dep’t of Hum. Servs., 2024 Ark. App. 631, 703 S.W.3d 536; McCormick v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 44, 594 S.W.3d 115. The court’s finding of subsequent factors is supported by clear and convincing evidence. We now turn to the circuit court’s determination that terminating parental rights was in MC’s best interest. In reaching this decision, the court was required to consider the likelihood that MC would be adopted if the petition to terminate was granted and that there was a potential for harm if he were returned to his parents. Ark. Code Ann. § 9-35- 325(b)(3)(A). “It is the overall evidence—not the proof of each factor—that must demonstrate that termination is in the child’s best interest.” Welsh v. Ark. Dep’t of Hum. Servs., 2026 Ark. App. 258, at 11, 738 S.W.3d 649, 657 (citation omitted). 11 While adoptability must be considered by the circuit court in a termination case, it is not an essential element of proof. Rogers v. Ark. Dep’t of Hum. Servs., 2025 Ark. App. 162, 708 S.W.3d 850; Sharks v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 435, 502 S.W.3d 569. The statute does not require magic words or a specific quantum of evidence, and a caseworker’s testimony that a child is adoptable is sufficient support of adoptability. Sharks, supra. In Gonzales v. Arkansas Department of Human Services, 2023 Ark. App. 69, at 6–7, 660 S.W.3d 380, 385, this court explicitly stated, “A caseworker’s testimony stating that there are no barriers to adoption is sufficient to support the adoptability factor.” In the present case, the caseworker testified that she did not foresee any barriers to adoptability. Both Wilson and Burgess argue that the circuit court erred in finding there was a strong likelihood that MC would be adopted because no evidence was introduced showing that MC’s autism diagnosis was considered. This was not raised before the circuit court, and we do not consider arguments raised for the first time on appeal. Alexander v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 536, 679 S.W.3d 450. Even if we were to consider this argument, we do not interpret Grant v. Arkansas Department of Human Services, 2010 Ark. App. 636, 378 S.W.3d 227, on which appellants rely, as they do. In Jones v. Arkansas Department of Human Services, this court explained the holding in Grant: [In Grant], we reversed the termination when the court failed to consider an autistic child’s disruptive behavior when determining whether he was adoptable. But in Grant the record also showed that it had been difficult for [the Department] to find foster parents who would care for the child due to his issues; the child was extremely attached to his mother; there was only one person who might be interested in adopting the autistic child, and the mother had never subjected the child to harm. 12 Each case turns on its own facts, and here the evidence supports the circuit court’s finding that terminating [the mother]’s parental rights was in the children’s best interest. 2021 Ark. App. 446, at 5–6, 636 S.W.3d 811, 815. The case at bar differs from Grant in that MC was doing well with a foster family who had agreed to foster him until adoptive parents were found. Moreover, there was no evidence that MC was attached to his parents or that only one family was interested in adopting him. The court did not err in finding a likelihood that MC would be adopted. The same is true for the circuit court’s finding of potential harm if MC were to return to his parents. Valentine testified at the termination hearing that Wilson and Burgess continued to have the same issues as when the case was opened. The environment presented dangers such as old food and medicine, and Valentine was concerned that MC would not be fed or changed as necessary. Davenport testified that, though the home was appropriate, there were old food and drinks within MC’s reach, and he had been eating old food off of the floor. Wilson and Burgess also left medicine within MC’s reach, even after they were advised to put it in a safe place. Wilson and Burgess never developed the ability or the practice of frequently and properly changing their babies’ diapers. Wilson fell asleep during visitation, and she and Burgess failed to properly interact with their children, opting to stay on their phones instead. At times, Wilson left the room because she was overwhelmed. Additionally, Davenport testified that Wilson and Burgess were unable to afford the 13 necessities to care for MC. This testimony supports the court’s finding of the likelihood of potential harm should MC be returned to his parents. Termination of parental rights is in derogation of a parent’s natural rights; however, we will not enforce parental rights to the detriment or destruction of the well-being of a child. Smith v. Ark. Dep’t of Hum. Servs., 2025 Ark. App. 325 714 S.W.3d 334. We cannot say that the circuit court clearly erred in finding statutory grounds for termination and that termination was in the best interest of MC. Thus, we affirm. Affirmed. VIRDEN and GLADWIN, JJ., agree. Elizabeth James, Arkansas Commission for Parent Counsel, for separate appellant Tabatha Wilson. Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant Matthew Burgess. Ellen K. Howard, Ark. Dep’t of Human Services Office of Chief Counsel, for appellee. Linda J. Hamilton, attorney ad litem for minor child. 14