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
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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-of3
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.
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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.
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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 bestinterest 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.
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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.
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