Datasets:

aidos-lab

/

arkansas-embeddings-int8-mixed-bread-large

like 0

ROBERT J. GLADWIN, Judge h The Arkansas Workers’ Compensation Commission' (Commission) denied appellant Cheri Stoker’s claim for additional medical testing and treatment, finding that they were not reasonably necessary for the compensable medical injuries Stoker sustained on December 5, 2014. In making its decision, the Commission relied on Dr. Steven Cathey’s report of the independent medical examination (IME) he performed. Stoker contends on appeal that the IME should not have been admitted into evidence and that the Commission erred by relying on it. We affirm. I. Facts Stoker worked as a driver and .trainer for appellee Thomas Randal Fowler, Inc., a trucking company in Texarkana., Arkansas, when she sustained compensable injuries to her neck, back, and right knee on December 5, 2014. Her injuries were the result of her truck being hit from behind after she had unbuckled her seat belt in preparation for delivering a package. Stoker was treated over the, course of- ¡a year, received an IME, and was. seen by |2Pr. Pierce Nunley after the Commission granted her change-of-physician request. When Dr. Nunley recommended additional testing and treatment on December 17, 2015, appellee controverted Stoker’s claim. At the June 2, 2016 hearing before the administrative law judge (ALJ), Stoker’s counsel objected to the admission of the IME report prepared by Dr. Cathey. Counsel argued that Stoker had not been informed that Dr. Cathey was to perform an IME and that Stoker went to the appointment under the assumption that she would be medically treated. Counsel argued that Dr. Cathey’s report should be excluded because Stoker did not give proper or informed consent. Counsel further argued that Stoker was not provided through discovery the introductory letter mentioned in Dr. Cathey’s report. At the close of the hearing, the ALJ posed more questions concerning the IME, including whether appellee’s counsel had seen the introductory letter mentioned in Dr. Cath-ey’s report. Counsel stated that he had tried to obtain the letter but that his “adjusters had changed up,” and he had never received it. Stoker’s counsel also stated that had he been given notice, he would have objected to his client’s seeing Dr. Cathey. The ALJ took under advisement the issue of the report’s admissibility. The ALJ also noted for the record that Respondent’s exhibit 2 was a surveillance video of Stoker that he would view following the hearing, Stoker testified about the circumstances of the automobile accident that resulted in her compensable injuries on December 5, 2014. She said that she had not been having any neck problems before the accident; but since the accident, she could not turn her head I «“right all the ,way to turn to look back” when driving. She also said that she gets “really bad headaches” three to four times a week and that she had to “sleep kind of cock-eyed” at night. She said that since the wreck, she had muscle spasms down her arms and legs, in the front of her legs, and in her back and neck. She complained that she did not “have a grip” in her left hand. Stoker said that after she went to the emergency room following the wreck, she was sent to a company doctor for follow-up care — Healthcare Express (HCE). She was prescribed medication and given some restrictions' for work, but no light-duty work was available. She said that HCE prescribed physical therapy along with medication, and an MRI was ordered, after which HCE “wanted [her] to see a neurosurgeon,” She said, however, that she was sent to an orthopedist, Dr. Dwayne Daniels. Stoker said that Dr. Daniels ordered a nerve-conduction study and that he also talked about “some injections.” She testified that Dr. Daniels’s progress note was incorrect in stating that she had previously had an MRI of her neck and back, and she stated that the MRI was done only on her neck. She stated that Dr. Daniels recommended that she see a neurosurgeon for her neck and that he had recommended many times that she receive epidural steroid injections. She said that she had never received any injections in her neck and claimed that as she received therapy and used the TENS unit, her symptoms where somewhat relieved but were not totally resolved. In spite of the therapy and the TENS unit, she said that she still had continuing headaches, pain, and spasms and was unable to use her left arm and hand. She explained that when she tried to use her left arm or hand, she dropped anything over ten pounds and her hand shook and spasmed. | ¿Stoker testified that after the functional capacity evaluation (FCE), she followed up with Dr. Daniels, and he “thought [she] still needed to see a neurosurgeon and to continue with additional therapy.” She said that there was an appointment scheduled with Dr. Cathey, and she believed that she would receive from him the epidural steroid injections that Dr. Daniels had suggested. She received a letter from Dr. Cathey “on Friday to be there on Monday morning at 8:00.” Along with the letter was a form for her to fill out that asked for her height, weight, address, and the like. When she arrived at Dr. Cathey’s office, she was not told she was' there for any reason other than for medical treatment. She said that Dr. Cathey 'examined her for eight to ten minutes, that his hand “was shaking just as bad as mine was,” and that he touched her left hand and put his hand on the back of her neck for a second. She said that he then showed her the MRI of her neck and talked about it. He told her that he was not recommending any treatment. She said that she had understood that the FCE gave her a ten-pound weight limit and no lifting above her head — sedentary restrictions. She .testified that when she was discharged by Dr. Cathey, she was given no restrictions or limitations and was told that she. could return to full-duty work. She said that she did not agree with that. She also said that she signed papers on her way out of Dr., Cathey’s office, but she did not read them first. She said that she had not been aware at that time that Dr. Cathey had performed an IME. She said that she understood she was to return to Dr. Daniels after seeing Dr. Cathey. While she was driving to Dr. Daniels’s office, his nurse called and canceled her appointment. She said that even though her. .physical therapy had not been completed, Dr. Daniels had placed her . at maximum medical improvement (MMI). She said that she continued to | ¿receive physical therapy after Dr. Cathey’s appointment and that she completed that therapy. However, she claimed that when she tried to go back to work, she failed the company physical. ■ Stoker said that after she learned that Dr. Daniels had placed her at MMI, she obtained a change of physician and saw Dr. Nunley one time. She said that he examined her and that she was there about forty-five minutes. She said that he performed tests-and took measurements. She stated that he recomménded a selective nerve-root injection at C6-7 for palliative and diagnostic value. He also wanted an MRI of her lumbar spine, more physical therapy, and a trial of cervical and lumbar traction. She had not received any of the recommended treatment and has been seen only in the emergency room for medical care since seeing Dr. Nunley. On cross-examination, Stoker said that when the December 5, 2014 accident occurred, she had an open workers’-compensation claim pending on her left knee, and that claim was settled in September 2015. She said that she has full use of both knees. She also said that she has a third-party lawsuit against the man who was driving the vehicle that hit her truck but denied that her third-party claim would benefit if she did “not get better.” She said that she wanted to get better and get back to work. She admitted that Dr. Nunley had been mistaken in his report that she had a hip injury and that she had not had any CTs or EMGs. In an opinion filed July 19, 2016, the ALJ held that Dr. Cathey’s IME report was admissible. The ALJ relied on Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 (2001), which held that the Commission is given a great deal of latitude in evidentiary ^matters and is not bound by technical or formal rules of procedure. The ALJ reasoned that both HCE and Dr. Daniels had requested that Stoker be evaluated by a neurosurgeon and that Dr. Cathey is a neurosurgeon. The ALJ found no evidence, authority, or rationale as to why Dr. Cathey’s letter discussing his evaluation and conclusions should not be admissible. The ALJ then found Dr. Cathey’s opinion that Stoker had reached MMI and was no longer in need of additional medical treatment to be credible. The ALJ accorded more weight to Dr. Cathey’s opinion than to Dr. Nunley’s opinion because Dr. Cathey’s opinion was consistent with Dr. Daniels’s opinion that Stoker had reached MMI. The ALJ also relied on the surveillance video of Stoker returning from grocery shopping on January 20, 2016, and carrying four sacks of groceries in her left hand, which was inconsistent with her testimony that she had lost the grip in her left hand. On January 27, 2017, the Commission affirmed and adopted the decision of the ALJ, and this appeal timely followed. II. Standard of Review Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion. Id. When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Parker v. Atl. Research Corp., 87 Ark. App. 145, 151, 189 S.W.3d 449, 452 (2004). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id., 189 S.W.3d at 453. The issue is not whether this court might have reached a different result from the Commission; the Commission’s decision should not be reversed unless fair-minded pei-sons could not 17have reached the same conclusions if presented with the same facts. Id., 189 S.W.3d at 453. When a claim is denied because a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Id., 189 S.W.3d at 453. The Commission determines credibility, weighs the evidence, and resolves conflicts in medical testimony and evidence. Godwin v. Garland Cty. Landfill, 2016 Ark. App. 498, at 4, 504 S.W.3d 660, 662. The Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Sandeford v. United Parcel Serv., Inc., 2014 Ark. App. 228, at 2, 2014 WL 1396660. It is not the role of the appellate court to weigh the evidence and judge the credibility of the witnesses. Id. Johnson v. PAM Transport, Inc., 2017 Ark. App. 514, at 5-6, 529 S.W.3d 678, 682. III. Evidentiary Ruling Stoker’s first argument is related to the Commission’s evidentiary ruling, which we consider under the following standards: The Workers’ Compensation Commission has broad discretion with reference to admission of evidence, and its decision will not be reversed absent a showing of abuse of discretion. Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998). The Commission is given a great deal of latitude in evidentiary matters; specifically, Arkansas Code Annotated section 11-9-705(a) (Repl. 1997) states that the Commission “shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure.” Additionally, the Commission is directed to “conduct the hearing in a manner as will best ascertain the rights of the parties.” Ark. Code Ann. § 11-9-705(a); Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). In our view, it is clear that the Commission should be more liberal with the admission of evidence, rather than more stringent. Coleman v. Pro Transp., Inc., 97 Ark. App. 338, 344-45, 249 S.W.3d 149, 154 (2007) (citing Bryant, 76 Ark. App. at 69, 61 S.W.3d at 859); see also Clement v. Johnson’s Warehouse Showroom, Inc., 2012 Ark. App. 17, 388 S.W.3d 469. IsStoker contends that the IME should not have been admitted into evidence and that the Commission erred in relying on the IME in denying her claim. She claims that the key issue is whether it is proper for the insurance company to schedule an IME but not tell the claimant or the claimant’s lawyer that it is an IME and not an appointment for follow-up treatment as recommended by the then existing treating physician. Stoker cites the statutory provision stating that an injured employee may be required to submit to a physical examination and treatment by another qualified doctor, designated or approved by the Commission. Ark. Code Ann. § ll-9-511(a) (Repl. 2012). She also points to Commission Rule 099.30, which defines an IME as an examination and evaluation conducted by a practitioner different from the practitioner providing care. See Ark. Admin. Code 099-00.1 — 099.30(1) (H)(1) — (3) (WL current through Sept. 2017). The Rule further provides what should be included in an IME and how it should be billed. Id. Stoker argues, therefore, that an IME is not designed to treat but to generate proof to support either the claimant or the respondent. Stoker also references standards published by the American Medical Association for an IME and argues that Dr. Cathey did not comply with those standards. Stoker relies on her own testimony regarding her belief that she was going to see Dr. Cathey for epidural steroid injections, the description she gave of the examination performed by Dr. Cathey, and the explanation she gave about the cancel-ation of her last appointment .with Dr. Daniels. She sets forth the ALJ’s questions to her counsel regarding whether he would have agreed to allow Stoker to see Dr. Cathey had she been given notice of the IM-E. She contends, 18In other words, but for the ‘trickery’ of the insurance1 company it is likely Dr. Cathey would have never had the opportunity to declare Ms. Stoker at. MMI based, essentially, on exactly the same medical information that Dr. Daniels had available when he referred her for injections — injections she never • received. Stoker complains that the letter from the adjuster arranging the appointment with Dr. Cathey is absent from the record and has never been disclosed to her. She argues that the ALJ should have applied a negative inference to appellee’s failure to produce the introductory letter sent to Dr. Cathey and should have refused to allow his report.to be admitted as evidence unless the letter was submitted. Appellee contends that the admission of Dr. Cathey’s report was proper and within the Commission?s authority as a finder of fact. -We agree. It was not an abuse of discretion to admit the. report, and Stoker offers no authority or convincing argument to the contrary. Because the Commission is not bound by technical or statutory rules of evidence or by technical or formal rules of procedure; the Commission is empowered to allow whatever evidence it sees fit into the record. Ark. Code Ann. ■§ 1Í-9-705(a)(1). Stoker’s conclusion — had she known that Dr. Cathey was going to perform an IME, she would have refused to participate — -is not a basis upon which this court can reverse the Commission. Appel-lee points out that the Commission could have given Dr. Cathey’s report little or no weight had it seen fit, The Commission examined the available medical evidence and testimony and found. Dr. Cathey’s report to be convincing because it more closely resembled the reports by Dr. Daniels. Accordingly, we affirm the decision to admit the IME. IV. Additional Medical Treatment Stoker argues that with the addition of Dr. Cathey’s report, the ALJ. had four differing medical opinions. She argues that Dr, Daniels thought Stoker needed further treatment |inuntil Dr. ■Cathey became involved. Dr. Nunley suggested injections, further diagnostic testing, physical therapy, and cervical and lumbar traction. The company doctor who gave Stoker a physical to determine her fitness for work did not pass her. Therefore, the only doctor who gave up on further treatment was Dr. Cathey, described by Stoker as a “hired gun.” Stoker argues that the Commissipn should be’ concerned about regulation of the IME process in Arkansas. She argues that there is too much reliance on an IME and that “Respondents across the state have their (favorite’ • physicians, as do Claimants, of course.” She contends that the Commission should have used her case to establish a precedent that no claimant can be referred for an IME unless (1) the claimant is told that the examination will be an IME and‘the purpose of an IME is explained to the claimant, and (2) the claimant is given:a reasonable time to object to the physician chosen by the respondent. She urges this court to adopt these guidelines. She argues that the Commission arbitrarily disregarded the medical evidence of her failing the medical exam for returning to work and Dr. Nunley’s detailed findings and report. Further, she claims that Dr. Cathey’s opinion should be ruled to be inadmissible and that, at the very least, it should be given the least weight of all the opinions. She relies on Commissioner Hood’s dissent, wherein he opined that Dr. Cathey’s opinion should be given little weight because it was designed to save the employer money and Dr. Nunley had given Stoker a more thorough examination. We hold that the Commission did not arbitrarily disregard evidence. The ALJ’s opinion stated, Inin the present case, I find credible the opinion of Dr, Cathey indicating that by July 27, 2015, Ms. Stoker had reached maximum medical improvement and did not need any additional medical treatment including but not limited to physical therapy and injections. I accord more weight to Dr. Cathey’s opinion on these matters than the weight I accord Dr. Nunley’s opinion regarding the need for additional testing and treatment. I conclude that Dr. Cathey’s opinion is consistent with Dr. Daniels’ opinion shortly thereafter that Ms. Stoker had reached maximum medical improvement. In reaching this conclusion, I am also relying significantly on surveillance video of Ms. Stoker returning from grocery shopping on the evening of January 20, 2016. Although Ms. Stoker testified at the hearing that she has lost the grip of her left hand, this examiner counted four sacks of groceries that Ms. Stoker picked up out of the trunk one at a time with her right hand. She immediately transferred each of the four sacks into her left hand, so that when she walked from the car to the-door at-5:03 p.m., she carried four bags of groceries in her left hand and only one bag of groceries in her right hand. I did not find this activity consistent with her hearing testimony that she has lost the.grip in her left hand. Dr. Nunley’s opinion was not disregarded, it was just 'not given as much weight- as Dr. Cathey’s opinion. The Commission has the duty to resolve conflicting medical evidence, including medical testimony. Johnson, supra. Further, the Commission’s reliance on the video surveillance of Stoker carrying grocery sacks in her left hand shows that the choice of Dr. Cathey’s opinion over that of Dr,' Nunley was also based on the -record as a whole and on a determination of Stoker’s credibility. Having determined that the Commission committed no error in admitting Dr. Cath-ey’s IME report, the report, coupled with the Commission’s détermination on Stoker’s credibility, constitutes substantial evidence to support the Commission’s decision to deny additional medical treatment and testing. Affirmed. Abramson and Whiteaker, JJ., agree. . Stoker failed to include.a copy of the.sur: veillance video in the addendum, in violation of Ark. Sup. Ct. R. 4-2(a)(8)(A)(i) (2016); Because the DVD is not essential to Stoker’s argument regarding admission of the IME, ■we do not require rebriefing.

RAYMOND R. ABRAMSON, Judge 11 Larry L. Harrison worked for Street & Performance, Inc. (Street & Performance), for eleven and a half years as a hemi technician. He fíled a claim with the Arkansas Workers’ Compensation Commission (hereinafter “the Commission”) asserting that his neck, right-arm, and right-shoulder injuries resulted from his employment with Street & Performance. Following a hearing before an administrative law judge (ALJ), the ALJ issued an opinion denying his claim on June 21, 2016 in its entirety. Harrison appealed to the Commission, and on its de novo review, the Commission issued a unanimous opinion dated January 11, 2017, affirming in part and reversing in part the decision of the ALJ. Specifically, the Commission found that Harrison proved that he had sustained a compensable gradual-onset neck injury but failed to prove that he had sustained a compensable gradual-onset right-arm or shoulder injury. Harrison filed a pro se notice of appeal on February 1, 2017, and Street | ¾& Performance filed a notice of cross-appeal on February 7, 2017. The record was lodged with this court on March 14, 2017. We affirm on direct appeal and on cross-appeal. As a hemi technician at Street & Performance, Harrison provided technical assistance to customers over the phone and worked in the shop installing and repairing car motors. Harrison worked about ten hours a day at Street & Performance, typically spending about three to five hours on the phone and three to seven hours working in the shop. Harrison’s shop work included the removal and installation of wheels and tires, radiators, disc brakes, transmissions, motors, batteries, and other car parts. Harrison testified that he never counted how many cars he worked on in a year because it would fluctuate but that he always had at least two cars he would work on at the same time. Harrison denied that he had been injured in a specific incident. As to potential rapid or repetitive work, Harrison testified regarding two different work activities: (1) closing the garage-bay door and (2) using a floor jack. Harrison stated that lifting the garage door was the most repetitive thing he did at work and indicated that he had to open and close the door as many as fifteen times during a ten-hour shift. Harrison noted that he did not have to use the floor jack every day and used it for only 20 to 30 minutes at a time. Harrison began to experience issues with his right arm, including tingling in his fingers and muscle atrophy, in October 2013. On May 27, 2014, Harrison went to Sparks Preferred Clinic complaining of right-arm tingling and loss of muscle mass in his right arm. An x-ray of Harrison’s cervical spine revealed narrowed disc spaces. An MRI performed a month later revealed multiple disc protrusions, chronic compression conformity, and degenerated discs throughout the cervical Rspine. Harrison was referred to neurosurgeon Dr. Shawn Moore. Dr. Moore’s note from Harrison’s first’ visit on July 25, 2014, states that Harrison reported a three-year history of neck pain and frequent heavy lifting. Dr. Moore recommended surgery, which was performed September 12, 2014, Before this surgery, Harrison was off work beginning on August 25, 2014, while recovering from hernia surgery. Harrison never returned to work at Street & Performance after August 2014. On July 81, 2015, Harrison went to Mercy Hospital in Fort Smith with complaints of “chronic right shoulder pain.” He reported during intake that he had a history of heavy labor for many years and that he used to lift car radiators for a living. An x-ray of Harrison’s right shoulder was taken and was normal. An MRI or physical therapy were discussed as treatment options at the appointment. On September 28, 2015, Harrison saw Dr. Bao Dang at Sparks Family Medicine South for shoulder pain and chronic neck pain. Dr. Dang ordered an orthopedic referral. On October 27, 2015, Harrison saw Dr, Trent Johnson at Mercy Clinic Orthopedic in Fort Smith. Dr. Johnson’s examination revealed a right-shoulder rotator-cuff sprain and a possible full- or partial-thickness tear of the rotator cuff. A follow-up MRI revealed a full-thickness tear in the intersection of the supraspinatus tendon, tendinopathy, degenerative changes, bursitis, and a mild cyst. Dr. Johnson performed a right-shoulder arthroscopy with arthroscopic rotator-cuff repair, an acromioclavicular joint resection, and a biceps tenotomy on Harrison’s right shoulder on November 11,2015. Harrison filed a claim with the Commission claiming his neck, right-arm, and right-shoulder injuries resulted from his empfyyment with Street & Performance. Following a prehearing conference, Harrison’s claim was set for a hearing on March 29, 2016, with the Rissues being whether he sustained a compensable gradual-onset injury to his neck, right arm, and right shoulder as a result of his' employment with Street & Performance and, if he did, whether he was entitled to medical benefits, temporary-total-disability benefits, and attorney’s fees. ■ Before the hearing, Harrison submitted for the record a July 2015 letter from Dr. Moore that noted, “I think it is probable Mr. Harrison experienced cervical degenerative disc disease with radiculopathy related to his significant work-related obligations.” Dr, Moore also wrote, “Although degenerative disc disease is often considered a chronic degenerative process, the significant work-related obligations that Mr. Harrison performed most likely contributed to this underlying condition and the development of his neck pain and radi-culopathy.” Dr. Moore was called to testify at the March 29, 2016 hearing before the ALJ. Dr. Moore explained that Harrison’s condition, degenerative disc disease, is typically a chronic degenerative process, but it could be exacerbated by certain work conditions or trauma. As to his letter, Dr. Moore specifically testified that the “purpose of the letter was just to indicate [that Harrison] has a chronic degenerative condition but it can be exacerbated with significant activities.” Dr. Moore noted that while he could say that Harrison’s reported work activities. were “a contributing factor” in the condition, he could not put a percentage on how much or how little Harrison’s reported activities contributed to the chronic ^degenerative condition because “that’s subjective.” Dr, Moore testified that the letter he dictated was correct. Following the hearing, the ALJ issued an opinion denying Harrison’s claim in its entirety. Harrison then appealed to the Commission. As noted above, the Commission affirmed in part and reversed in part the ALJ’s decision. The Commission found that Harrison proved he had sustained a compensable gradual-onset neck injury but failed to prove that he had' sustained a compensable gradual-onset right-arm or shoulder injury. It is from those proceedings that both parties appeal. In reviewing a decision from the Commission, our court reviews the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms if the decision is' supported by substantial evidence. Nichols v. Micro Plastics, Inc., 2015 Ark. App. 134. Substantial evidence-exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. Id. The issue is not whether the appellate court might have reached a different result from that of the Commission but whether reasonable minds could reach the result found by the Commission. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008). It is the Commission’s duty, not ours, to make credibility determinations, to weigh the evidence, and to resolve conflicts in the medical testimony. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 (2008). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions of the Commission. Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d 394 (2007). 6Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Neal v. Sparks Reg’l Med. Ctr., 104 Ark. App. 97, 289 S.W.3d 163 (2008). The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id. The Commission is the ultimate arbiter of weight and credibility. Towler v. Tyson Poultry, Inc., 2012 Ark. App. 546, at 2, 423 S.W.3d 664, 666. On appeal, Harrison’s challenge to the Commission’s finding that he did not suffer a compensable injury to his right arm or right shoulder is not preserved for our review. In his brief, he contends that this court should find that his right-arm and shoulder injury, a rotator-cuff tear, was a compensable consequence of his neck injury. However, he did not present this argument to the Commission. Before the Commission, his sole contention regarding his right-arm and shoulder injury was that it was a compensable gradual-onset injury arising out of the course of his employment with Street & Performance. We have routinely held that we will not consider arguments presented for the first time on appeal. Townley v. Ga. Pac. Corp., 2012 Ark. App. 48, 388 S.W.3d 475. Because Harrison is raising this matter for the first time on appeal and failed to get a ruling from the Commission, we are prevented from reviewing it. See Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Accordingly, |7we affirm the Commission’s opinion that Harrison’s right-arm and shoulder injury are not compensable. On cross-appeal, Street & Performance argues that the Commission’s decision that Harrison suffered a gradual-onset injury to his neck is not supported by substantial evidence in the record and therefore should be reversed. We disagree. This court must view the evidence and all reasonable inferences in the light most favorable to the Commission’s decision and must affirm that decision when it is supported by substantial evidence. Nichols, supra. Here, the Commission’s decision is supported by substantial evidence. On de novo review, the Commission found that Harrison had sustained a compensable gradual-onset neck injury arising out of the course of his employment with Street & Performance. On cross-appeal to this court, Street & Performance argues that the Commission’s decision was based primarily on a letter Dr. Shawn Moore had written on July 27, 2015, and that the Commission erred as a matter of law by considering and crediting Dr. Moore’s letter opinion specifically but not his hearing testimony. A claimant seeking benefits for a gradual-onset injury to the neck must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of his employment; (2) the injury caused internal or external harm to the body that required medical services or resulted in disability or death; and (3) the injury was the major cause of the disability or need for medical treatment. Smith v. Commercial Metals Co., 2011 Ark. App. 218, at 9, 382 S.W.3d 764, 769; Ark. Code Ann. § 11—9—102(4) (A)(ii) (b) & (E)(ii) (Repl. 2012). “Major cause” is defined as more than 50 percent of the cause. Ark. Code Ann. § 11-9-102(14)(A). | «Street & Performance contends that the Commission arbitrarily disregarded the full scope and substance of Dr. Moore’s opinion as clarified through his hearing testimony by considering only his letter. We are not persuaded by Street & Performance’s argument on cross-appeal. In its January 11, 2017 opinion, the unanimous Commission wrote, It is within the Commission’s province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1991). In the present matter, the Full Commission finds that Dr. Moore’s opinion as stated in his July 27, 2015 correspondence is supported by the record and is entitled to significant evidentiary weight. Dr. Moore credibly opined that claimant’s cervical condition was causally related to the claimant’s work for the respondents. Based on the evidence in the present matter, the Full Commission finds that the claimant proved he sustained a com-pensable injury to his neck in accordance with Ark. Code Ann. § 11 — 9— 102(4)(A)(ii)(b) (Repl. 2012). The claimant proved that he sustained an injury causing physical harm to his body which arose out of and in the course of employment and was not caused by a specific incident. The claimant established a compensable injury by medical evidence supported by objective findings, namely the compression fracture and bulging shown on the June 25, 2014 MRI of the claimant’s cervical spine. The claimant proved that these objective medical findings were causally related to the com-pensable injury. The claimant also proved by a preponderance of the evidence that the compensable injury was the major cause of his disability and need for treatment. We will defer to the Commission on credibility determinations and to resolve any conflicts in the medical testimony. Martin Charcoal, Inc., supra. Here, the Commission relied on Dr. Moore’s July 27, 2015 letter, which clearly states, “the significant work-related obligations that Mr. Harrison performed most likely contributed to this underlying condition and the development of his neck pain and radiculo-pathy.” We hold this satisfies that Harrison’s injury was a major cause of the disability or need for medical treatment. IflWith our standard of review in mind, we hold that fair-minded persons could have reached the Commission’s conclusion. Therefore, we affirm on cross-appeal. Affirmed on direct appeal and on cross-appeal. Murphy and Brown, JJ., agree. , Harrison was represented by counsel during at least part of the proceedings below. He appeared pro se on appeal to the Commission as well as on appeal to this court,

RAYMOND R. ABRAMSON, Judge On August 25, 2016, a Hot Spring County jury convicted appellant Darrell Sanders of two counts of rape. He was sentenced to a total of 42 years’ imprisonment in the Arkansas Department of Correction (ADC), On appeal, he challenges the sufficiency of the evidence and argues the circuit court erred in granting the State’s motion to admit evidence under Arkansas Rule of Evidence 404(b). For the following reasons, we affirm, Sanders’s victim was fourteen-year-old S.J., who lived with him on weekends in 2014. Sanders appeals his convictions and alleges that the evidence is insufficient to support his second conviction for rape because there was no evidence introduced at trial that he was the guardian of the victim. He also alleges that his now adult daughters’ testimony that he had sexually abused them when they were approximately SJ.’s age was improperly admitted under Rule 404(b) of the Arkansas Rules of Evidence. Although Sanders argues the sufficiency of the evidence in his -second point on appeal, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before the other issues on appeal. See Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). To preserve the sufficiency of the evidence for appellate review a defendant must move for directed verdict at the close of the State’s evidence and at the close of all the evidence. Ark. R. Crim. P. 33.1(a) (2016). The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsection (a) will constitute a waiver of any question pertaining to the sufficiency of the evidence to support. the verdict or judgment. Ark. R. Crim. P. 33.1(c). Sanders did not move for a directed verdict at the close of the State’s case, nor did he move for a directed verdict at the close of all evidence. No motion for directed verdict was ever made, which is in contravention of Rule 33.1 of the Arkansas Rules of Criminal Procedure. Thus, Sanders’s sufficiency challenge is now barred on appeal. Sanders also argues that the circuit court erred in granting the State’s motion to admit evidence under Rule 404(b) of the Arkansas Rules of Evidence. Before trial, the State filed a motion to admit evidence of prior uncharged incidents of deviate sexual activity or sexual intercourse by Sanders with his two daughters who are now adults. A hearing was held and the State presented the testimony of Sanders’s daughters, who made the allegations. Rulings on the admissibility of evidence are matters within a circuit court’s discretion, and those rulings are not disturbed on appeal absent a showing of an abuse of that discretion and prejudice. Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004). “Abuse of discretion is a high threshold that does not simply require error in the trial court’s ^decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration.” Id. Evidence of a person’s bad acts generally is not admissible to show action in conformity therewith. Ark. R. Evid. 404(b) (2016). Nevertheless, evidence of prior bad acts is admissible if they are independently relevant, that is, relevant to show a material fact other than that the accused is a criminal or bad person. Spencer v. State, 348 Ark. 230, 236, 72 S.W.3d 461, 464 (2002). “Evidence of other crimes, wrongs, or acts ... may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, ... or absence of mistake or accident.” Ark. R. Evid. 404(b). Our supreme court has recognized for over a century a “pedophile exception” under which evidence of an accused’s prior sexual conduct with children is admissible “not for the purpose of proving a substantive crime, but to show the relation and familiarity of the parties, their disposition, and antecedent conduct towards each another, and as corroborative of the testimony of the [victim].” Williams v. State, 103 Ark. 70, 78, 146 S.W. 471, 474 (1912). Such testimony is admissible “when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship.” Parish v. State, 357 Ark. 260, 268, 163 S.W.3d 843, 847 (2004). It is also admissible when it helps to show the depraved sexual instinct of the accused. Id. For the pedophile exception to apply, there must be a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct. Allen v. State, 374 Ark. 309, 316, 287 S.W.3d 579, 584 (2008) (citing Hamm v. State, 365 Ark. 647, 652, 232 S.W.3d 463, 468 (2006)). In Sanders’s case, the victim, S.J., and Sanders’s two daughters, all were | ¿approximately the same age when Sanders raped them. S.J. was fourteen. One daughter was thirteen, and the other daughter remembers being eleven or twelve when the sexual abuse started. Moreover, S.J. and the daughters were all raped by Sanders in similar locations: a car, a church, and in Sanders’s home. All were vaginally raped. The pedophile exception to Rule 404(b) is fully applicable here; we hold that the circuit court did not abuse its discretion in admitting the evidence. Accordingly, we affirm Sanders’s convictions and sentences. Affirmed. Gladwin and Whiteaker, JJ., agree.

N. MARK KLAPPENBACH, Judge | ¶ Appellant Wayne Travis Ray petitioned the Saline County Circuit Court to terminate his obligation to register as a sex offender pursuant to Arkansas Code Annotated section 12-12-919. He also filed a motion seeking to have that statute declared unconstitutional. The circuit court denied both requests. On appeal, Ray argues that section 12-12-919 is unconstitutional as applied to him under the equal protection clause and is an unconstitutional ex post facto law. Arkansas Code Annotated section 12-12 — 919(b)(l)(A)(i) (Repl. 2016) provides that fifteen years after having been released from incarceration, a sex offender may apply for an order to terminate the obligation to register. The court shall grant an order terminating the obligation to register upon proof by a preponderance of the evidence that the applicant has not been adjudicated guilty of a sex offense for fifteen years and is not likely to pose a threat to the safety of others. Ark. Code Ann. § 12-12-919(b)(2). However, this process does not Uapply to sex offenders who are required to make lifetime registration under Arkansas Code Annotated section 12-12-919(a), including a sex offender who “[h]as pleaded guilty or nolo contendere to or been found guilty of a second or subsequent sex offense under a separate case number, not multiple counts on the same charge.” The lifetime-registration requirement of section 12-12-919 was added to the statute by Act 1743 of 2001. Before that amendment, the statute provided a method by which all sex offenders could seek termination of the obligation to register. Ray’s obligation to register as a sex offender stemmed from his 1999 Saline County Circuit Court conviction for one count of sexual abuse in the first degree. Ray pleaded guilty in that case and was sentenced to five years’ imprisonment and five years’ suspended imposition of sentence. In April 2016, Ray filed a petition to terminate his obligation to register. He alleged that he had been released from the Department of Correction on November 1, 2000, had not been found guilty of a sex offense during the fifteen years since his release, and was not likely to pose a threat to the safety of others. However, Ray’s petition also noted that days after his 1999 conviction in Saline County Circuit Court, he was convicted in the Pulaski County Circuit Court of the same offense against the same |svictim. The sentences in those cases were ordered to run concurrently. The State responded that Ray’s petition should be denied because he was likely to pose a threat to others and that he should be reassessed with the Sex Offender Community Notification Assessment Program. Subsequently, Ray filed a motion to find section 12-12-919 unconstitutional. He alleged that he had been charged and convicted in two separate cases due to his move from one county to another but that the victim was the same in both cases, and the crimes had been committed over the course of several years. He claimed that the requirement in section 12-12-919 of lifetime registration for offenders found guilty of a subsequent sex offense under a separate case number was unconstitutional as applied to him under the equal protection clauses of the United States and Arkansas Constitutions. He also alleged that the statute was an unconstitutional ex post facto law under the United States and Arkansas Constitutions. The State responded that Ray was not eligible under the statute to apply for an order terminating his obligation to register. The Attorney General intervened and filed a response to Ray’s constitutional challenges. Following a hearing, the circuit court entered an order denying Ray’s petition to terminate his obligation to register because he had pleaded guilty to sex offenses in two separate cases. The court found that section 12-12-919 was not an unconstitutional ex post facto law because it was regulatory, not punitive, in nature and that the statute did not violate Ray’s equal protection rights because it was supported by at least one rational basis. |4The general rule in cases involving a question of the constitutionality of a statute is that the statute is presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5 S.W.3d 402 (1999). Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Id. Ray first argues that application of the provision of section 12-12-919 requiring lifetime registration in his case violates his rights to equal protection under the federal and state constitutions. Equal protection under the law is guaranteed by the Fourteenth Amendment to the United States Constitution and by article 2, sections 2, 3, and 18 of the Arkansas Constitution. In .deciding whether an equal-protection challenge is warranted, there must first be a determination that there is a state action which' differentiates among individuals. Arnold v. State, 2011 Ark. 395, 384 S.W.3d 488. Ray has established that section 12-12-919 differentiates among defendants who are convicted of sex offenses in more-than one case and those who are convicted in only á single case. Ray does not dispute that the rational-basis -test is the applicable constitutional standard of -review. Under the rational-basis test, we presume the statute to be constitutional and rationally related to achieving its objectives. Arnold,, supra. The party challenging the constitutionality of the statute must prove that the statute is not rationally related to achieving any legitimate governmental • objective under any reasonably conceivable fact situation. Id. | fiEquaI protection does not require that persons be dealt with identically; it only requires that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made; and that their treatment be not so disparate as to be arbitrary. Akers v. State, 2015 Ark. App. 352, 464 S.W.3d 483. When addressing an equal-protection challenge to a statute, it is not our role to discover'the áctuál basis for the legislátion. Id. We merely consider whether there is any rational basis that demonstrates the possibility of a deliberate nexus with state objectives so that legislation is not the product of arbitrary and capricious government purposes. Id. If we determine that any rational basis exists, the statute will withstand constitutional challenge. Id. Ray argues that the requirement of lifetime registration for defendants convicted in more than one case is intended to protect the public from individuals who pose a greater danger while allowing offenders who pose a lesser threat an opportunity to be removed from the registry. Ray contends that he was convicted in multiple case numbers merely “due to geography,” and the fact that he had only one victim demonstrates that he poses a lesser threat, líe argues that it is unfair that offenders with multiple victims and multiple offenses and who pose a higher threat than him can still seek termination of their obligation to register if they were convicted under only one case number, We agree with the State, however, that a rational basis exists for treating sex offenders convicted • under more thán one case number differently than those convicted under a single case number. The legislative intent behind the sex-offender registry is to protect the public |fifrom sex offenders, whom the legislature has found to pose a high risk of reoffending after having been released from custody. Ark. Code Ann. -§ 12-12-902. Individuals convicted of a subsequent sex offense under a second case number have committed more than one sex crime, and the General Assembly could have concluded that these individuals are more likely, to reoffend. The underinclusiveness of a particular provision does not make the provision unconstitutional. Landers v. Stone, 2016 Ark. 272, 496 S.W.3d 370. Thus, Ray’s argument concerning sex. offenders convicted of offenses against multiple victims under one case number does not render the legislature’s chosen classification unconstitution al. We hold that the lifetime-registration requirement for sex offenders convicted in a subsequent case meets the very deferential rational-basis standard, see Brown v. State, 2015 Ark. 16, 454 S.W.3d 226, and that Ray has failed to demonstrate that section 12-12-919 violates his right to equal protection. Ray next argues that because his convictions occulted before the amend-, ment of section 12-12-919 by Act 1743 of 2001, the requirement of lifetime registration violates the ex post facto prohibitions of the .United States and Arkansas Constitutions. A law is prohibited as ex post facto when it punishes as a crime an act previously committed, which was innocent when done; makes more burdensome the punishment for a crime after its commission; or deprives one charged with crime of any defense available according to law at the time when the act was committed. Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5 S.W.3d 402 (1999) (citing Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). If the law is regulatory or 7civil in nature, it cannot be an ex post facto law. Id. In Kellar, the appellant challenged the constitutionality of the original version of the Sex Offender Registration Act, Act 789 of 1997, codified as Arkansas Code Annotated sections 12-12-901 to -920. To determine whether the Act violated ex post facto clauses, the supreme court first determined that the intent of the legislature was nonpunitive and then examined the effects of the Act to see whether they transformed a civil remedy into a criminal penalty. To make its determination, the supreme court looked to the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), and concluded that [g]iven the overall balance of the Kennedy factors, we are left with the conclusion that, while there may be some punitive characteristics inherent in the registration and notification statute, the Act is essentially regulatory and therefore non-punitive in nature. Because it is not a form of punishment, it therefore cannot be considered a violation of the ex post facto clauses of the United • States and Arkansas Constitutions. In Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6, the appellant argued in part that certain amendments to the Sex Offender Registration Act after Kellar had been decided were criminal in nature. The supreme court compared- the cúrrent version of the statutes with those at issue in Kellar and held that the amendments did not transform what was already found to be civil in nature to be criminal or punitive. Ray acknowledges Kellar but argues that the effect of the Act is punitive, noting without citation several restrictions that apply to sex offenders. He notes that before the amendment regarding lifetime registration, he had an opportunity to be removed from the ^registry, although removal was never guaranteed. Ray does not explain, however, how this amendment, or any other changes in the law since Kellar or Parkman, should ■ change the Kellar analysis. He has failed to distinguish those cases or explain why what was previously found to be civil in nature should now be deemed criminal. Thus, we find no merit in Ray’s ex post facto claims. Affirmed. Virden and Brown, JJ., agree. . Three other categories of sex offenders are required to submit to lifetime registration under the current version of the statute: offenders found to have committed an aggravated sex offense; offenders determined by the court to be or assessed as a Level 4 sexually dangerous person; and offenders convicted of rape by forcible compulsion pursuant to section 5-14-103(a)(l) or other substantially similar offense in another jurisdiction. Ark. Code Ann. § 12 — 12—919(a).

ROBERT J. GLADWIN, Judge liThe Ouachita County Circuit Court granted permanent custody of the minor child, D.D., born June 23, 2014, to Bobby Delee, her father, and closed the dependency-neglect case that appellee Arkansas Department of Human Services (ADHS) had brought against D,D.’s mother, appellant Laura Meyers. Meyers argues on appeal -that the trial court erred because she did not receive notice that permanent custody and a no-reunification-of-services request would be considered at the scheduled adjudication hearing. She. also argues that the trial court’s order is void because the trial court .failed to find that the child had been adjudicated dependent-neglected and that the trial court erred because it failed to follow the required .provisions of the juvenile code. Appellees ADHS and the attorney ad litem contend that this court should affirm the trial court’s oral finding of dependency-neglect, enter the finding of dependency-neglect in writing, and affirm the child’s placement with her.father. Ap-pellees also argue that we should reverse and remand the trial court’s decision to close the case and not order reunification services because Meyers did not receive the |2required statutory notice before the case was closed. We reverse the trial court’s order granting permanent custody to Delee, closing the case, and ordering no reunification services because Meyers did not receive the required statutory notice. We remand for further proceedings consistent with this opinion. I. Facts and Procedural History ADHS filed a petition for emergency custody and dependency-neglect on February 13, 2017, and an ex parte order granting ADHS custody was filed on the same day. The petition alleged that D.D. was dependent-neglected based on parental unfitness. The attached affidavit of Bridgette Patterson, a family service worker (FSW) for ADHS, states that a report was received that D.D., who lived with Meyers, was covered from head to toe in roach bites. Patterson completed a health-and-safety assessment on January 31, 2017, and observed that the house was infested with roaches, two dogs were in the house and had left feces on the floor, the home was cluttered with clothes, and the sink was full of dirty dishes. Patterson also saw bites on the child’s legs, arms, stomach, and back, and Meyers had not sought medical care for the child. Meyers told Patterson that she had been diagnosed with schizophrenia, ADHD, bipolar disorder, and a “split personality,” but Meyers said that she did not take medication and had not been to a doctor or counselor for these issues. The affidavit described two prior agency involvements, one in Georgia, which was found to be unsubstantiated, and another in Arkansas on September 9, 2016, when Meyers took D.D. to Ouachita Valley Clinic where it was discovered that the two-year-old was behind on her vaccinations and was covered in a rash, thought to be scabies. Meyers told the clinic worker that D.D, had cockroach bites, and Meyers was covered in bites as well. Meyers told the Isdinic that she has three other children, two of whom were in their dad’s custody because she had tried to kill him. The other child, who was born with a birth defect, had been placed for adoption. Meyers was told about services for D.D., such as speech and physical therapy, but Meyers said that she did not trust doctors and did not want anyone to come into her home. These allegations were found to be true, a protective-services case was opened, and ADHS attempted to provide services from October 2016 until January 2017, when Patterson conducted the health-and-safety check. Following the entry of the emergency order, Meyers was appointed counsel, and on March 21, 2017, the trial court signed an order for compliance with Regulation 7 of the Interstate Compact on the Placement of Children (ICPC) to request a home-study assessment on Delee because he lived in Tennessee. On March 22, 2017, a probable-cause order was filed wherein the trial court found that the emergency conditions that caused removal continued and it was necessary that D.D. remain in ADHS custody. ADHS was ordered to develop an appropriate case plan for the child and family and to provide services as appropriate to achieve the goal of the case plan. The trial court found that Meyers had agreed to start counseling and complete her psychological evaluation before the adjudication hearing and ordered her to do so. An adjudication hearing was set for March 15, 2017; however, the healing was continued until April 19, 2017. Both parents attended the adjudication hearing with their counsel, and Patterson testified to the allegations set forth in the affidavit attached to ADHS’s original petition. Photographs of Meyers’s home taken during Patterson’s January 31, 2017 visit were admitted in evidence. On cross-exam ination, Meyers’s counsel asked Patterson what efforts |4were made to prevent having to remove the child from Meyers’s custody. The following colloquy occurred: ADHS Counsel: That’s not relevant to the finding of dependency-neglect. Meyers’s Counsel: Are you not asking for a finding of dependency-neglect today? ADHS Counsel: That’s a different finding. Meyers’s Counsel: Are we going to have another hearing on it? ADHS Counsel: That’s a part of the disposition finding. Meyers’s Counsel: But the court’s not going to make that finding today, so I’ll reserve those questions. That’s all I have, Your Honor. Patterson was then questioned by the attorney ad litem representing D.D. At the conclusion of Patterson’s testimony, the following colloquy occurred: Meyers’s Counsel: I just want to be clear on one issue. The Department today is not asking for a reasonable-efforts finding? The Court: I think that what they are doing is, they’re getting to this threshold and then we move into disposition. That’s the point where we talk about reasonable efforts. ADHS Counsel: Correct. Meyers’s Counsel: To prevent removal? ADHS Counsel: Right. Meyers’s Counsel: Okay. Meyers testified that she has children other than D.D. and that she had spent time in jail as a result of causing one child to have a broken tibia. She also said that she recalled [.^stating in her psychological evaluation that she had tried to kill the father of two of her children. She said that [ajfter many years of physical, verbal, psychological, and mental abuse, one day I just snapped on him. He kicked me in my back and the last thing I remember is the cops being at the house. From what they told me, they said I snatched him by the throat and that if he hadn’t hit me in my ribs, he would have been dead. So, I personally don’t have any recollection of it. I only have what I was told. I couldn’t even tell you where my children were at the time. When I blacked out, I had no clue where they were at. That doesn’t happen frequently for me. It took nine years to happen once. I’ve been diagnosed with schizophrenia for as long as I can remember. If I can remember that far back, yeah, since I was a child. I stopped taking my meds for that diagnosis nine years ago. I’ve been diagnosed with bipolar for the same amount of time. What happened in my childhood brought out a lot of unstable things and they had me on medications and I was taking the medications, but I was blacking out repeatedly. My body was not accepting the medications and I quit taking them. When I quit taking them, I stopped blacking out. The child’s fractured limb didn’t happen during a blackout. That happened because me and my child’s father had gotten into an argument and [the child] was crying and I laid him down on the bed and I didn’t realize his leg was trapped up underneath him and when I put him down, it fractured his tibia. On cross-examination by ADHS, Meyers admitted that the house had roaches and explained that she had tried to deal with them and had argued with her landlord about it for almost two years. She said that D.D.’s bites came from roaches, but she also said that they had gone camping and that D.D. had “mosquito bites and whatnot.” On cross-examination by the attorney ad litem, Meyers said that her first child had the broken tibia and now lives with his father. She said that this same man,-who is also the father of her next two children, was the man she had tried to kill. She said that their third child was placed for adoption “because she' was missing the right front part of her brain.” She said that the child had first been placed in foster care at her request because her son had|fia violent tendency and she did not want him to beat the child. She said that her other two children had been in foster care because of the bad relationship she had with their father. She said that .all of this had happened while she was living in New Jersey. Shé said that she then lived in. Georgia for a time when she was with DJD.’s father. She said that child-protective services (CPS) in Georgia had been told that she had been sleeping with a. huhting knife underneath her pillow. She said that it was not true and that CPS could not prove it. She also said that she had been told that she has five personalities. She stated, Lucky you’re just talking to me now. Just Laura Meyers.. Yesterday was the day that they just all came out and I was snappy and whatnot, but my mom ■ knows how to deal with it and she talks . me out of it, so. It’s not like I got violent or anything, I was. just real, how do you say, annoyed? The trial court questioned Meyers, and she said that she had lived in Arkansas for the last three years. When the trial court asked her the name of D.D.’s doctor,, she admitted that she had not taken her. child to see a doctor. Renee Yancy was called as a witness by the attorney ad litem, and she testified that she worked for ADHS and that she had photographed, D.D.’s bites with her cell phone on January 31, 2017, and the pictures were printed and -introduced as evidence. The trial court then announced that it was making a finding of dependency-neglect. The trial court asked, “Do you have anything concerning disposition?” The following colloquy occurred: Meyers’s Counsel: You Honor, I believe that would be more appropriate for the disposition hearing. The Court: That’s where we are. Meyers’s Counsel: I thought we were going to have the disposition in a couple of weeks. The Court: No. We’re having it right now. |7Meyers’s Counsel: It was my understanding that we would have that in a couple of weeks. The Court: Wait a second', because it’s ■rare that we have them on a different day than a finding. . • ADHS Counsel: Let me explain. I had talked to him, because of the father. We have done an ICPC on Mr. Delee. The Court: Okay. ADHS Counsel: Before he went to talk to his client for the hearing, I had told him that that was what I was going to ask to do, then while he was talking to Ms. Meyers, I found out that Mr. Laney and , Mr. Delee were. actually here, because I was under the impression that Mr. Delee wasn’t. coming. When they walked in the courtroom, I found out that they want to make a pitch to the court for custody today. The Court: All right. Do you need another recess,. [Meyers’s Counsel], which is not a problem? . Meyers’s Counsel: No. I believe we can proceed. ADHS offered Meyers’s psychological evaluation as an exhibit, and it was admitted without objection. ADHS then called Shanell Robbins, supervisor, for Ouachita County Department of Child and Family Services (DCFS), who testified that ADHS had a protective-services case open on Meyers in late October 2016. She said that a protective-services case generally comes from an investigation, and if the investigation is substantiated, DCFS would provide service? to the family to prevent removal and maintain the children in the home. She said that the services offered between October and January were worker visits, attempts to offer homemaker services, and a referral for an assessment for “Kids First, First Step for D.D. in an effort to prevent the removal of this child.” She said that the assessment was never done |sand that DCFS did not have a lot of contact with Meyers during that time period. Robbins said that in September 2016, the home was in the same condition as depicted in the pictures of the home on January 31, 2017. Robbins said that ADHS recommended that the goal be relative placement with the father. She said that ADHS was not recommending reunification due to recommendations in Meyers’s psychological evaluation, ■ Meyers’s statement that she would not take any type of medication to manage her mental disabilities, and the history of Meyers’s poor home environment. On cross-examination, Robbins testified that she had visited the home on September 9 and 11, 2016, and the home had been infested with insects, had feces in the front area, and was cluttered. Services were put in place with Meyers and her landlord that prevented the removal of the child at that time. The landlord agreed to have the home treated for insects. Meyers and her mother agreed to clean the home. Meyers also agreed to allow the child to stay with a friend while the home was cleaned and treated for inseets. During the investigation, Robbins visited the home several times.. She said that Meyers had taken things out of the home, had put the dogs outside in a kennel at one point, and had thrown away furniture and bags of clothes in an attempt to rectify the situation. Meyers and her mother were to split the cost of an exterminator' every month, but she did not follow through with that; Robbins said that the landlord .agreed to have the home sprayed one time, and he said he had .gone over with Meyers the need to keep the home clean and the animals out to prevent infestation. Robbins said that when the child was removed, ADHS did not try any pf.those, services again. ' InCounsel for ADHS asked the court for a finding that Delee had no role in the cause of dependency-neglect and stated that there was no evidence that he had been living in the home at any time since September 2016. Counsel stated that the ICPC had been done, and ADHS had received a letter from Tennessee reflecting that it would be approved. .However, ADHS asked the trial court to reserve the issue because the official approval had not been returned and to note that ADHS could not agree to custody and placement at that time. Meyers testified that she had cooperated with ADHS when they first became involved and that she cleaned the house and “bombed as much as we could.” She said that her mother lived on the other side of their duplex, and both sides were sprayed and baited. She said that she would take any assistance provided to obtain other housing. She said that she had cooperated ■with services because she went to counseling and had been making a lot of progress with her therapist. She said that she had not been to the psychiatrist because she had to go to a “regular doctor appointment” first. She said that she was willing to go to parenting classes and that she had asked ADHS about getting HUD or Section 8 housing, but she had not received any assistance. She said that the only concern she had about placing D.D. in Delee’s custody was that Delee told her four or five years ago that he had been accused of “messing with a minor.” She also complained that he did not pay child support. On cross-examination, Meyers said that she had told ADHS in September 2016 that she could not get into housing because she had a criminal record. She also said that she had a criminal record for “B. and E. and whatnot” and that she had charges for “when the child had a broken tibia.” She said that she was willing to take a mood stabilizer, that she had been on medications when she tried to kill her husband, and that she had been on | inmedication when she accidently broke her child’s tibia. She agreed that it was a lose-lose situation because there was no reason to think that if she went back on medications, her problems would be fixed. She said that violence is an issue with only one of her five personalities but not Laura Meyers’s, that’s for sure. I know that because I only black out when a certain one comes out. That’s number five. I don’t know what number five’s name is. As far as I’m concerned, they’re just numbers and I don’t let it get that far. When number five comes out, that’s when the violence happens, but it takes a lot to make that one to come out. It really does. It took nine years for my first kids’ father to push it that far. I had never seen that one until then. The other four are grumpy, cranky, and depressing. They’re not violent. They’re just negative. All of them are negative, pretty much. The attorney ad litem introduced an email from the Tennessee DCFS indicating that Delee’s home study had been completed, and his home had been recommended for placement. Delee testified that he lives in Tennessee and had for two years. He said that he works for a car manufacturer and had been employed there since January. Before that, he had worked as a truck driver but had lost his job because he had diabetes and was prescribed insulin. During the time he was off work, his girlfriend had supported him. He said that he lived with his girlfriend and her mother, son, and two daughters. He said that he was ordered to pay child support for D.D. by a Georgia court and that he had joint custody of her. The Georgia order granting joint custody was admitted in evidence along with photographs of Delee’s home in Tennessee. De-lee said that he had passed the drug test and the background check, that his home met all the qualifications, and that he was ready to take custody of his daughter. He said that he had checked into schools and that D.D. would be enrolling with Head Start, which begins at age three. He said that he planned to use the |nprimary-care physician that his girlfriend uses for her daughters and that he had checked with the Sweetwater primary school system about programs they offered to address D.D.’s speech and language impediments. He said that he did not object to Meyers’s visiting under supervised conditions, and he asked for custody to be placed with him that day. On cross-examination, he admitted that he was behind on his child support because he had previously been out of work for almost a year. After Delee’s testimony, ADHS asked the trial court for a finding of reasonable efforts. Also, ADHS asked that it be allowed to “come back on the home study and letter from Tennessee.” ADHS asked for a finding that Delee did not have a role in the finding of dependency-neglect, for the goal to be relative placement with De-lee, and that there be no reunifications services to Meyers based on her testimony and the information provided in the psychological evaluation. ADHS argued that there was no reason to believe that providing Meyers with counseling and medication services “would get us anywhere in this case.” The attorney ad litem agreed with ADHS’s request for a reasonable-efforts finding and for “no reunification services.” The ad litem argued that there were no services that could be provided, even medication, that would help. She asked that the child be placed with Delee that day because the letter from Tennessee said he was approved, and the home study, although it had not worked its way through the bureaucracy, was on its way and had been approved. She said that Delee was a joint custodian. The trial court asked ADHS counsel what he thought about the request for the child to go with Delee that day. ADHS stated that it could not agree because it had not received [ 12the approved home study, but if the trial court did make that finding, ADHS would ask that it be permanent custody and that the case be closed. ADHS said that “technically, it’s a violation of the ICPC if the court doesn’t have one.” Meyers’s counsel argued that Meyers had a constitutional right as a parent to services provided by ADHS. Counsel argued that there was a constitutional due-process right involved. He claimed that Meyers did not receive any notice, and there were no motions filed that stated ADHS was seeking to terminate reunification services. He claimed that oiice ADHS made the decision to remove the child, it had a duty to provide services. He argued that ADHS had a duty to try for reunification and that they had a case plan that was generic and not individualized for the serious issues here. He argued that Meyers could benefit from intensive counseling, as suggested by the psychological evaluation, and that she should not lose custody permanently until those services were provided. ADHS argued that there was no statutory or case law that required it to provide notice unless the goal of the case was changed from reunification. ADHS argued that the goal should be placement with the father after the expected approved ICPC home study. In its ruling from the bench, the trial court summarized the testimony and the conditions that led to the child’s removal from her mother. It noted the condition in the home, the pictures of the bites on the child, and the neglect by Meyers in not seeking treatment for her child. It noted that Meyers’s testimony was not consistent with her child’s broken leg and said that a broken leg cannot be caused by “simply placing the child on the | iabed.” The trial court also noted Meyers’s inconsistent testimony regarding the blackouts and what caused them. The trial court considered that Delee had been given joint custody by a court order. The trial court found that ADHS made reasonable efforts to avoid “this situation” by recommendations made in the fall of 2016, and it was Meyers’s failure to follow through that led to the removal of the child in January 2017. The trial court found that it was in the child’s best interest that custody be placed with Delee and that, regardless of potential services, and even if reunification was one of the concurrent goals, reunification could not have been accomplished within a year. “I’m not going to leave this child in foster care for six- months or a year, when there is an appropriate placement for her with a parent.” The trial court ordered supervised visitation at Delee’s discretion and stated that Meyers could file a petition for a change in visitation or-a change in custody if circumstances warranted it. The trial court’s order, filed April 24, 2017, did not contain the trial court’s adjudication of dependency-neglect. Meyers filed a timely notice of appeal, and this appeal followed. II. Standard of Review We review dependency-neglect cases under the following legal guidelines: Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Dependency-neglect allegations must be proven by a preponderance of the evidence. We will not reverse the circuit court’s findings unless they are clearly erroneous. In reviewing a dependency-neglect adjudication, we defer to the circuit court’s evaluation of the credibility of the witnesses. The focus of an adjudication hearing is on the child, not the parent; at this stage of. a proceeding, the juvenile code is concerned with whether the child is dependent-neglected. An adjudication of dependency-neglect occurs without reference to which parent committed the acts or omissions leading to the adjudication; the juvenile is simply dependent-neglected. The appellate court is not to act as a “super factfinder,” substituting its own judgment or second guessing the I ^credibility determinations of;the court; ■ we reverse only in those cases where a definite mistake-has occurred. Bean v. Ark. Dep’t of Human Servs., 2016 Ark. App. 350, at 4-5, 498 S.W.3d 315, 318 (citations omitted). III. Statutory Notice Arkansas Code Annotated section 9-27-365 (Repl. 2015) provides that a motion for no reunification services must be provided to all parties in wilting at least twenty days before a scheduled hearing. Ark. Code Ann. § 9 — 27—365(a)(1)(A)— (B). Meyers argues that it was error for the trial court to grant permanent custody to Delee and close the case. She claims that she did not get notice that ADHS was going to ask that it not be required to provide reunification services and instead request permanent placement of D.D. with her father, Delee, and she contends that the lack of notice violated her “basic constitutional rights.” She cites Tuck v. Arkansas Department of Human Services, 103 Ark. App. 263, 288 S.W.3d 665 (2008), for the proposition that the State must provide parents with fundamentally fair procedures when it “moves to destroy weakened familial bonds.” Tuck stated, We have said it so frequently that it is now axiomatic: few consequences of judicial action are so grave as the severance of natural family ties. See Osborne v. Ark. Dep’t of Human Servs., 98 Ark. App. 129, 252 S.W.3d 138 (2007). As long as there is reason to believe that positive, nurturing parent-child relationships exist, the law favors preservation, not severance, of natural familial bonds. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006). Once a child has been adjudicated dependent-neglected, there is a presumption that DHS will provide services to preserve and strengthen the family unit, Benedict, supra. A parent’s right to the care and control of his or her child is a fundamental liberty, and termination of parental rights is' an extreme remedy in derogation of those rights. See. Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 205 S.W.3d 778 (2005). This fundamental liberty interest does not evaporate simply because the mother and father have not been model parents. See Osborne, supra. Even when blood relationships are strained, parents retain a vital interest in preventing the | ^irretrievable destruction of their family life. Id. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than dp those resisting State intervention into ongoing family affairs. Id. Accordingly, when the State moves to destroy weakened familial bonds, it must provide parents with fundamentally fair procedures. See id. Tuck, 103 Ark. App. at 266-67, 288 S.W.3d at 667-68. Meyers cites Hardy v. Arkansas Department of Human Services, 2009 Ark. App. 751, 351 S.W.3d 182, where this court remanded for the parties to comply with the requirements for no-reunification-services hearings. See also Henson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 225, 434 S.W.3d 371 (motion for no reunification services filed prior to adjudication); Phillips v. Ark. Dep’t of Human Servs., 85 Ark. App. 450, 158 S.W.3d 691 (2004) (ADHS announced its intent to file a no-reunification-services motion). Appellees concede that it was reversible error for the trial court to close the' case without reunification services because Meyers did not receive the statutory notice required. Ark. Gode Ann. § 9 — 27—365(a)(l); Hardy, supra. Therefore, appellees request that this court reverse the trial court’s decision to close the case and nbt order reunification, services and remand the case for further proceedings, including the consideration of any motions to terminate reunifications services to Meyers under section 9-27-365. We agree with the appellants’ and appel-lees’ contention that reversible error occurred because Meyers did not receive the required statutory notice. Accordingly, we reverse the 11fitrial court’s order closing the case without reunification services and remand for proper notice under Arkansas law. IV. Adjudication Meyers argues that the trial court’s disposition order is void because- it does not reflect the trial court’s ruling that the child was dependent-neglected. Meyers contends that an oral finding does not satisfy the requirement under the code. that a disposition order may only be entered when a child is found to' be dependent-neglected. See Ark. Code Ann;' § ,9 — 27— 334(a). Further, Administrative Order No. 2 provides that an order announced from the bench is not effective until reduced to writing and filed of record. Ark. Sup. Ct. Admin. Order. No. 2(b)(2) (2016); see also Ark. R. Civ. P. 58 (2016). Therefore, Meyers argues that the trial court lacked the authority to grant permanent custody to Delee. Appellees argue that this court should go to the record and affirm the trial court’s dependency-neglect finding and enter that finding, which the trial court failed to include in its order. They argue that a preponderance of the evidence supported the trial court’s oral-finding of dependency-neglect and that the trial court intended to make the required dependency-neglect finding. They cite several cases for the proposition that this court can go to the record and enter the finding that the trial court should have entered. See Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 53, at 9, 431 S.W.3d 303, 308; Hanlin v. State, 356 Ark. 516, 529, 157 S.W.3d 181, 189 (2004); Haynes v. State, 314 Ark. 354, 358, 862 S.W.2d 275, 277 (1993); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979); Fye v. Tubbs, 240 Ark. 634, 401 S.W.2d 752 (1966); Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). 117Because we are reversing the trial court’s order closing the case without reunification services, the trial court may include in its future orders any findings necessary for compliance with the applicable statute. We decline to amend the trial court’s order and hold that the trial court may amend as its sees fit on remand. V. Custody Meyers argues that the trial court, acting under the auspices of the juvenile code, modified custody without giving her notice that such a result was a possibility. See Miller v. Ark. Dep’t of Human Servs., 86 Ark. App. 172, 167 S.W.3d 153 (2004) (holding that there is a distinction in custody cases between those filed under the juvenile code and those filed pursuant to a change-of-custody petition). She cites Clark v. Arkansas Department of Human Services, 2016 Ark. App. 286, 493 S.W.3d 782, in which this court held that when ADHS requested a change of custody, the statutory guidelines and framework for such set forth in the juvenile code should have been applied. She also contends that Nance v. Arkansas Department of Human Services, 316 Ark. 43, 870 S.W.2d 721 (1994), holds that the circuit court must follow the juvenile code when making custody decisions under the juvenile code. She argues that there was no child-custody case here but a dependency-neglect petition. Meyers also complains that the trial court failed to adhere to the statutory requirement that mandates a home study before placing custody of a child with a relative, citing Arkansas Code Annotated section 9-27-335(d). Appellees argue that Meyers did have notice that custody was going to be an issue because the dependency-neglect petition addressed custody and included a specific notice that the circuit court may not order reunification services and instead could proceed directly 11sto permanency for the juvenile. Further, appellees rely on the ICPC order for expedited consideration of Delee for custody and placement in Tennessee and the emergency-custody and probable-cause orders which continued D.D. out of Meyers’s custody. They argue that the entire framework of the code puts custody at issue at every stage of the proceeding. Appellees also claim that there was evidence of Delee’s fitness for custody, and placing custody with him should be affirmed. Under Arkansas law, trial courts have the authority to transfer custody in a dependency-neglect proceeding if it is determined that the transfer is in the best interest of the juvenile involved, and if custody is transferred to a relative or other individual, a written home study is presented to the court. Ark. Code Ann. § 9-27-334(a)(2). Trial courts are also required to consider whether a noncustodial parent contributed to a juvenile’s dependency-neglect and whether the parent is fit for custody or visitation. Ark. Code Ann. § 9- 27 — 327(a)(l)(B)(i). If a custodian lives out of state, Arkansas law requires written approval by the appropriate public authorities in the custodian’s home state in lieu of a written home study before a juvenile can be placed in the custodian’s home pursuant to a court order. Ark. Code Ann. § 9-29-201, art. III. Appellees argue that the trial court found that transfer of custody to Delee was in D.D.’s best interest. The trial court found that Delee had not contributed to D.D.’s dependency-neglect and that he is fit for custody. The trial court had written evidence that the authorities in Tennessee had approved placement of D.D. into De-lee’s home by virtue |19of the letter placed in evidence. Appellees argue that a home study was not required for a parent who lives out of state and has written approval. We reverse the trial court’s order placing permanent custody with Delee because the order is premised on the trial court’s premature closure of the dependency-neglect action. Without proper notification to Meyers, the trial court ordered that no reunification services were required and placed permanent custody with Delee against ADHS’s arguments that doing so would be a violation of the ICPC. We acknowledge the trial court’s inclination to shortcut the proceedings when circumstances seem extreme; however, awarding permanent custody to Delee based on the framework of a ehange-of-custody petition is in derogation of the dependency-neglect statutes that control in this case. Accordingly, we reverse the permanent-custody finding and remand for further proceedings in accordance with this opinion. Reversed and remanded. Glover and Hixson, JJ., agree. . The trial court noted that there was not a case plan, and Meyers’s counsel said he had seen a draft. . Hardy interpreted Ark. Code Ann. § 9-27-329 (Repl. 2008), which has since been amended, and the requirement of notice for no reunification services is now codified at Ark. Code Ann. § 9-27-365 (providing that any party may- file a motion for no reunification services at any time and the motion should be provided at least twenty days before a scheduled hearing). . This is a reference to the notice at the end of the petition, following the attorney’s signature on the pleading. It concludes, "In some cases, the Court will determine that the Arkansas Department of Human Services is not required to provide reunification services and permit Arkansas Department of Human Services to proceed directly to permanency for the juvenile, Ark. Code Ann. § 9-27-303 [definitions].”

KENNETH S. HIXSON, Judge | j Appellants Dorletha Brinkley Lambert and Timothy Brinkley appeal from the termination of their parental rights to their three children, T.M.l, T.M.2, and T.M.3, who are now ages nine, eight, and six. On appeal, Dorletha argues that there was insufficient evidence to support the termination of her parental rights because there was a failure of proof as to the statutory grounds found by the trial court. In his appeal, Timothy also challenges the sufficiency of the evidence, arguing that there was insufficient proof of the statutory ground found by the trial court pertaining to him. In addition, Timothy argues that the trial court erred in proceeding on the petition to terminate his parental rights because he was not appointed counsel until immediately before the termination hearing. Finally, Timothy contends that it was error to terminate his parental rights because he was not served with the case plan or relevant pleadings, and because his attendance or | ¿participation was not secured at any hearing before the termination hearing. We affirm the termination of Dorletha’s parental rights. However, based on our conclusion that the trial court clearly erred in finding sufficient proof of a statutory ground as to Timothy, we reverse the termination of his parental rights. We review termination of parental rights cases de novo. Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. 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 (Repl. 2015); M.T. v. Ark. Dep’t of Human 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 factfinder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 683, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of the three children on May 11, 2015. When the petition was filed, the children were living with Dorletha in Jonesboro, Arkansas, and Timothy was incarcerated in Texarkana, Texas. An affidavit of a family service worker stated that the three children had been left unsupervised and locked out of their house for |3more than two hours, and when Dorletha came home she told the worker that she had been at her aunt’s house across town. Dorletha was arrested and charged with three counts of first-degree endangering the welfare of a minor. On the same day the petition was filed, the trial court entered an ex parte order for emergency custody of the three children. The trial court entered a probable-cause order on May 12, 2015. In the probable-cause order, the trial court ordered the parents to cooperate with DHS, comply with the case plan, remain drug free, submit to a drug-and-alcohol assessment, and complete parenting classes. The parents were also ordered to maintain stable housing and employment, and to resolve all outstanding criminal matters. On June 30, 2015, the trial court entered an adjudication order adjudicating the children dependent-neglected. The goal of the case was reunification. A review order was entered on November 3, 2015, wherein the trial court found that Dorletha was in noncompliance with the case plan due to a positive drug screen and her failure to attend drug treatment. The order indicated that Timothy did not appear at the hearing, and the trial court found that Timothy had participated in none of the case plan. On April 28, 2016, the trial court entered a permanency-planning order finding that Dorletha was in compliance with the case plan but needed to resolve her criminal matters, including a DWI charge. The order again indicated that Timothy did not appear at the hearing, and the trial court found that Timothy had participated in none of the case plan. In the permanency-planning order, the goal of the case continued to be ■ reunification with Dorletha. However, in a fifteen-month-review order entered on July 21, 2016, the trial |4court authorized DHS to file a petition to terminate parental rights. In that order, it noted that Timothy again did not appear, and under section 8, “The court finds that the parents have participated in the case as follows,” the trial court noted that Dorle-tha was currently incarcerated and facing criminal charges for both DWI and aggravated assault; Timothy was not mentioned at all. DHS filed a petition to terminate both parents’ parental rights on September 14, 2016. The termination hearing was scheduled for October 18, 2016. However, on the day of the scheduled termination hearing, the trial court entered an order of continuance wherein it rescheduled the hearing for November 18, 2016, appointed counsel to represent Timothy at the hearing, and instructed counsel to arrange for Timo thy’s transportation from jail to the hearing. The termination hearing was held on November 18, 2016, with both Dorletha and Timothy present and represented by counsel. ■On March 2, 2017, the trial court entered an order terminating Dorletha’s and Timothy’s parental rights to the three children, The trial court found by clear and convincing evidence that termination of parental rights was in the children’s best interest,' and the trial court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section - 9-27-341(b)(3)(A)® & (ii) (Repl. 2015). The trial court also found, with respect to Dorletha, clear and convincing evidence of the following two statutory grounds under subsection (b)(3)(B): •; (i)(a) That 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 |fithe conditions that caused removal, those conditions have not been remedied by the parent. (yii)(a) That 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. The trial court found that Dorletha had been incarcerated seventeen times during the ease, had consistently minimized her arrests, and had a long and unresolved history of alcohol abuse. As to Timothy, the. trial court found under ■ subsection (b)(3)(B)(iv) that he had abandoned the juveniles. . DHS caseworker Tina Green testified at the-termination hearing. Ms. Green testified that Dorletha has had issues with alcohol abuse throughout the case, which was in large part the reason for Dorletha being arrested and incarcerated seventeen times for various offenses. According to Ms. Green, in the past several months Dorletha had been convicted of DWI, driving. on a suspended license, and two counts of aggravated assault. Dorletha was last arrested two weeks before the termination hearing, and she remained in jail awaiting transfer to. a court-ordered inpatient treatment facility. .Ms. Green indicated that Dorletha had completed a previous treatment program, but with unsuccessful results, and that Dorletha minimized, and made excuses for her criminal troubles. Ms. Green stated that, after the children were .removed, Dorletha remarried and now has stable housing. Ms. Green further acknowledged that Dorletha had been fairly compliant with the case plan as far as “checking the boxes,” but that she had not remained | «sober 0r resolved her criminal issues. Ms, Green stated that one of the assault charges against Dorletha arose from an incident where Dorletha had cut her husband with a razor. Ms. Green also believed that Dorletha has mental-health issues. Ms. Green was concerned that the children’s safety and welfare would be at risk if they were returned to their mother’s. custody, and she testified that the children are adoptable. Ms, Green testified that Timothy has been incarcerated from the outset of the case, and she was not aware of him ever asking for DHS services or asking to visit the children. The only contact Ms. Green had with Timothy was through a letter he sent after being served with the termination petition, wherein he asked to be present for the termination hearing. Ms. Green stated that the children could not be safely placed with either parent due to both parents’ incarceration, and she thought termination of both parents’ parental rights was in the best interest of the children. Dorletha testified and acknowledged being incarcerated, with her most recent charge being public intoxication. Dorletha testified that after her children were removed from her home she “started drinking real heavy and getting into trouble because it felt like [she] lost everything.” However, Dorletha stated that she-loves her children and that, were she not incarcerated, they could be returned to her. Timothy testified'that he was incarcerated in September 2014 for a battery conviction and that his earliest release date would be in September 2017, which was ten months after the termination hearing. Timothy stated that he was served with a copy of the original emergency petition in prison on May 21, 2015. However, Timothy testified that he Was never served with, nor did he ever receive, any order, notices, or any type of 17communication from DHS or the ■ court for the • next fifteen-plus months. Timothy testified that he was not provided a copy of the case plan or notice of any of the interim hearings, and that he was never offered any services by DHS. The first time he received any communication from DHS was when he was served with the petition for termination, of his parental rights on or about September 15, 2016. Timothy stated that, during that fifteen-month period, he was indigent and that nobody had asked him if he wanted a lawyer to represent him. After Timothy was 'served with the petition for termination, he wrote a letter requesting counsel and was appointed counsel. Timothy stated that he had not abandoned his children and did not want his parental rights terminated, . We first address Dorletha’s argument on appeal, which is that the trial court clearly erred in finding statutory grounds to terminate her parental rights. The first ground found by the trial court was that, under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), the children were adjudicated dependent-neglected and had been out of Dorletha’s custody for twelve months, and that despite meaningful DHS efforts to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied by the parent. Dorletha argues . that. this ground was not sufficiently proved because there was a lack of evidence that she failed to remedy- the conditions causing removal. Dorletha asserts that, the condition that caused removal was inadequate supervision of the children, while the proof supporting the trial court’s order was not inadequate supervision but rather Dorle-tha’s alcohol abuse and frequent incarcerations, which were problems unrelated to the condition that caused removal. ■. • IsThe remaining ground found by the trial court was that, under Arkansas Code Annotated " section 9-27-341(b)(3)(B)(vii)fqj, other factors or issues arose demonstrating that the return of the children to Dorletha was contrary to the children’s welfare, and that despite the offer of appropriate family services, the parent manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances which prevent the return of the juveniles to the parent’s custody. Dorletha contends- that the trial court erred in finding that this ground was satisfied because DHS failed to prove that it offered appropriate family services for Dorletha’s mental-health issues, which she claims contributed significantly to her persistent criminal troubles. For these reasons, Dorletha submits that the order terminating her parental rights should be reversed. Only one ground is necessary to terminate parental rights. Wafford v. Ark. Dep’t of Human Servs., 2016 Ark. App. 299, 495 S.W.3d 96. We uphold the termination of Dorletha’s parental rights based on our conclusion that the trial court did not clearly err in finding that DHS proved the “other factors” ground under subsection (b)(3)(B)(vii)(o) of the termination statute. In this case there can be no doubt that other factors arose after the children were removed from Dorletha’s custody, which included her persistent alcohol abuse, evén after completing alcohol rehabilitation, and her ongoing criminal troubles that resulted in seventeen incarcerations during the case. Dorletha’s incarcerations compromised her ability to visit the children, and she remained in jail at the time of the termination hearing. Dorletha does not appear to contest the sufficiency of the proof as to these other factors that showed the juveniles could not be safely returned to her custody, but instead claims that 19DHS failed to offer appropriate services. We cannot agree. The record demonstrates that Dorletha did receive DHS services throughout this case, including a rehabilitation program that was unsuccessful in remedying her problem with alcohol. The testimony of the caseworker demonstrated that Dorletha’s alcohol abuse and related criminal problems were the factors preventing the return of the children to her custody, and the trial court found that Dorletha manifested the incapacity or indifference to remedy these issues. Although there was some testimony suggesting that Dorletha also had mental-health issues, these issues were not the basis for the termination. We hold that the trial court did not clearly err in its finding that appropriate family services were offered to Dorletha, and we affirm the termination of her parental rights based on the “other factors” ground. We now turn to Timothy’s appeal of the termination of his parental rights. Timothy argues that the trial court clearly erred in finding that he had abandoned his children, which was the only statutory ground pled in support of DHS’s termination petition. Timothy also argues that his termination should be reversed because he was not appointed counsel until shortly before the termination hearing, and because DHS failed to serve him with the case plan or any pleadings (other than the initial dependency-neglect petition and termination petition) or secure his attendance or participation in any of the hearings before (10the termination hearing. We agree on this record that the trial court clearly erred in finding that Timothy had abandoned the children as defined by Arkansas Code Annotated section 9-27-303(2)(A), and therefore we reverse the termination of his parental rights on that basis. Arkansas Code Annotated section 9-27-303(2)(A) contains the definition of “abandonment,” and it provides: (2)(A) “Abandonment” means: (i) The failure of the parent to provide reasonable support for a juvenile and to maintain regular contact with a juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future; (ii) The failure of a parent to support or maintain regular contact with a child without just cause; or (iii) An articulated intent to forego parental responsibility. The evidence in this case showed that Timothy was in prison when the children were taken into DHS custody and remained in prison throughout the entirety of this proceeding. Timothy did receive notice of the emergency-custody petition while in prison. However, there is no evidence that Timothy was served with the emergency order of custody as required by Arkansas Code Annotated section 9-27-314(c)(1)(A). So the only Ininformation that the record reflects that Timothy had was that a 72-hour hold of the children had been taken, with no proof that there had been any court order of removal. Subsequent to that notice, Timothy received no assistance, guidance, or even minimal contact from DHS as to what he needed to do to comply with the case plan or contact his children for over fifteen months. In fact, it is undisputed that Timothy never even received the case plan, and that despite that omission, the trial court’s orders repeatedly found him to be in noncompliance with a case plan of which he had no knowledge. By the DHS caseworker’s own testimony, DHS had no contact with Timothy at all throughout the case and offered no services. Although appropriate services is not an element of the statutory abandonment ground, we conclude that the complete lack of services, communication, or guidance by DHS in this case is relevant in deciding whether Timothy abandoned his children. In Friend v. Arkansas Department of Human Services, 2009 Ark. App. 606, 344 S.W.3d 670, we wrote: Although imprisonment imposes an unusual impediment to a normal parental relationship, it is not conclusive on the issue of termination. Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Nevertheless, a parent’s imprisonment does not toll his responsibilities toward his child. Malone v. Ark. Dep’t of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Tolling a parent’s obligations to comply with reunification orders while he is in jail would be contrary to the goal .of the juvenile code to provide permanency for the child. Id.; see also Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976). The appropriate inquiry where a parent has been ordered to comply with a court’s reunification orders and is incarcerated is whether the parent utilized those resources available to maintain a close relationship with the child. Malone, supra. 2009 Ark. App. 606, at 12-13, 344 S.W.3d at 677 (emphasis added.) Although.Zglesz-ewski supra, cited above, involved the adoption of a child by a stepparent and was decided under |12prior law, the supreme court in that case characterized abandonment as an indication that the parent deserted, forsook entirely, or relinquished all connection with or concern in the child. In Bradbury v. Arkansas Department of Human Services, 2012 Ark. App. 680, 424 S.W.3d 896, the appellant’s parental- rights were terminated based on the trial, court’s finding that he had abandoned the child. Even though the appellant had been incarcerated during the majority of the case, we stated that whether his incarceration constituted abandonment under the statute was questionable. More importantly, however, we affirmed on the basis that DHS had also alleged the “other factors” statutory ground and that, although the trial court made no specific finding on this ground, it -was nonetheless proved. In holding in our de novo.review that the “other factors” ground was proved, we relied on evidence that the appellant had failed to comply -with the case plan or avail himself of DHS services, and .that he had an .explosive temper and was facing a possible prison sentence-of thirty years. That cannot be said in the present case. In stark contrast to the appellant in Bradbury, Timothy received no services from DHS, nor was he even provided with the case plan or any orders of the court,, so it cannot be said that he failed to avail himself of services or was in willful noncompliance. Furthermore, unlike Bradbury, in this case the only statutory ground alleged by DHS and found by the trial court was that Timothy had abandoned his children. The trial court’s findings in the termination order in support of abandonment were as follows: hsThe father has had no contact with the department during the pendency of this case, and he has not visited with the juveniles during that period. The father had no just cause. No evidence that he ever requested counsel prior to the TPR, or that he requested services at any time. Limiting our analysis to this single ground, as we must, we conclude that the trial court clearly erred in this regard. Timothy testified that, although he was incarcerated during the entire proceedings, he did not abandon his children, and during his incarceration he was not included as a participant in the case despite the fact that DHS had actual knowledge of his location and address. We hold that this does not rise to the level of abandonment under a clear-and-convincing standard as defined by Arkansas Code Annotated section 9-27-303(2)(A), and therefore we reverse the termination of Timothy’s parental rights. Having concluded that there was a sufficient statutory ground to support the termination of -Dorletha’s parental rights, we affirm the trial court’s termination order as to. her. Based on our holding that the trial court clearly erred in finding that the ground of abandonment alleged against Timothy was proved by clear and convincing evidence, we reverse the termination of Timothy’s parental rights. Affirmed in part; reversed and remanded in part. Abramson, Virden, Gladwin, Glover, and Murphy, JJ., agree. Klappenbach, Vaught, and Brown, JJ., dissent. . DHS did not allege in its petition the "imprisonment” ground under Arkansas Code Annotated section 9-27-341 (b)(3)(B)(viii), which allows for termination when the parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life. At the termination hearing, DHS moved to allow the pleadings to conform with the evidence to permit it to rely on the unalleged "imprisonment” ground to justify termination. However, the trial court denied the motion. Therefore, our review is limited to the only statutory ground alleged by DHS in the petition and found by the trial court, which was abandonment. . The dissenting opinion suggests that Timothy did receive the emergency-custody order. However, from our review of the record and the briefs, we conclude otherwise. The summons sent to Timothy at the beginning of the case states that “a lawsuit has been filed against you” with proof that he was served with the summons and complaint. The proof of service does not indicate that Timothy received the emergency order, which would typically appear at the "other” section of the document, which was left blank. At trial, Timothy testified that he received the petition. In appellant’s brief, he states that he only received a copy of the petition and not the order. And this does not appear to be disputed by DHS, who states in its brief that "Brinkley’s failure to visit the children occurred despite being on notice that the Department was requesting custody of his children. He was served with a summons and petition on June 2, 2015, which clearly explained that ‘the children were removed from the physical custody of Lambert.’ Brinldey’s own testimony further confirmed that he received the petition.” (emphasis ours). . See footnote 1, . Because we hold that there was insufficient evidence to support the termination, we need not specifically address Timothy’s remaining arguments.

ROBIN F. WYNNE, Associate Justice | , Appellant Thomas C. Ortega was convicted of rape and sentenced as, a habitual offender to life imprisonment. Ortega v. State, 2016 Ark. 372, 501 S.W.3d 824. Ortega timely filed a verified pro se postconviction petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016), alleging grounds of prosecutorial misconduct, trial-court error, and ineffective assistance of counsel. The trial court denied relief, and Ortega lodged an appeal in this court from the denial of relief and has now filed a motion for extension of time to file his brief. Because it is clear that Ortega cannot prevail on appeal, we dismiss thé appeal, and Ortega’s motion is moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is dear that the" appellant could not prevail. Justus v. State, 2012 Ark. 91, 2012 WL 664259. This court .will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 260 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. I. Prosecutorial Misconduct In his Rule 37.1 petition, Ortega merely used the term “prosecutorial misconduct” without any supporting facts or argument. This courthas held that a claim of- prosecutorial- misconduct is “an issue that could have been raised at trial.” Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 32 (2006). Therefore, an issue of alleged prosecutorial misconduct is an issue that should have been raised at trial and on direct appeal and is not cognizable in a Rule 37.1 petition. To the extent- Ortega attempted to raise a claim of prosecutorial misconduct in his Rule 37.1, it is not cognizable. II. Trial-Court Error Ortega’s argument that the trial court abused its discretion when it found sufficient evidence.for the case to be presented to the jury under one of two alternative theories for rape — that he engaged in sexual intercourse or deviate sexual activity with another person by forcible compulsion or that the victim was incapable of consent because she was physically helpless — is also not cognizable in. a Rule 37.1 proceeding. Assertions of trial-court error., even those of constitutional , dimension, must be raised at trial and on direct appeal. See Howard, 367 Ark. at 26, 238 S.W.3d at 32; see also Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000). Furthermore, to the extent Ortega’s challenge here can be construed as a challenge to the sufficiency of the evidence or á claim of actual innocence, |ssuch a challenge is a direct attack on the judgment and is not cognizable in a Rule 37.1 proceeding. Scott v. State, 2012 Ark. 199, at 6, 406 S.W.3d 1, 4. The trial court properly denied relief, finding that any allegation of an abuse of discretion or trial-court error should have been raised before and was not the basis for Rule 87.1 relief. III. Ineffective Assistance of Counsel Ortega also argued that his trial counsel was .ineffective for failing to prepare or present the affirmative defense of “consen-tual sexes[,]” for failing to argue a specific basis on which the motion for directed verdict “could be so had as a matter of law[,]” and for failing to develop evidence that would have allowed the jury to weigh the reasonable hypothesis consistent with his innocence. These allegations do not support an ineffective-assistance-of-counsel claim. When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Howard, 367 Ark. at 31-32, 238 S.W.3d at 35-36. Under the two-prong standard outlined in Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Id. The reviewing court must indulge in a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming | ineffective assistance of counsel has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. The second prong requires a petitioner to show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial. Id. Consequently, the petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been, different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Although Ortega contends that his trial counsel did not present a defense for consensual sex, his argument fails. Consent may be a defense to a rape by forcible compulsion but cannot be a defense to a rape of a person who is physically helpless because he or she is, by definition, incapable of consent. See State v. Parker, 2010 Ark. 173, 2010 WL 1507232. However, raising the defense of consent is a factual issue in a rape prosecution and should | fibe addressed at trial and on direct appeal. Id. at 5-6 (victim was physically helpless at the time of sexual intercourse making factual issue of consent irrelevant in rape prosecution). During Ortega’s direct appeal, he asked this court to make credibility determinations and argued that “substantial evidenced supported] an act of consensual sexual intercourse.” Ortega, 2016 Ark. 372, at 4, 501 S.W.3d at 827. Specifically, he argued that there was evidence that contraindicated forcible compulsion and that the evidence was insufficient to show that the “victim was too intoxicated to consent to sexual intercourse.” Id. at 4-5, 501 S.W.3d at 827. Trial counsel raised a consensual-sex defense, and the claim was addressed on direct appeal and failed. Although Ortega claims counsel should have argued a specific basis in his motions for directed verdict so as to have them granted as a matter of law, this court noted that “defense counsel made a specific motion for directed verdict at the close of the State’s case, and renewed the motion at the close of all the evidence.” Ortega, 2016 Ark. 372, at 4, 501 S.W.3d at 826-27. Counsel cannot be found to be ineffective for failing to make an argument that is without merit. See Camargo v. State, 346 Ark. 118, 128, 55 S.W.3d 255, 262-63 (2001); see also Noel v. State, 342 Ark. 35, 44, 26 S.W.3d 123, 129 (2000). Trial counsel made the motions for directed verdict, and Ortega has failed to state any additional grounds for the motion that counsel should have or could have advanced to the trial court that would have resulted in a directed verdict for the defense. Trial counsel’s failure to present evidence that would allow the jury to weigh a reasonable hypothesis consistent with his innocence was not ineffective assistance. A | ficonclusory claim without factual substantiation will not support a basis for postconviction relief. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Nevertheless, to the extent Ortega’s challenge here can be construed as a challenge to the sufficiency of the evidence or a claim of actual innocence, such a challenge is a direct attack on the judgment and is not cognizable in a Rule 37.1 proceeding. Scott, 2012 Ark. 199, at 6, 406 S.W.3d at 4; see Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). Regarding Ortega’s generalized claims that trial counsel was ineffective because the consensual-sex defense, directed-verdict motions, and failure-to-establish-evidence-of-actual-innocenee claim did not result in a different outcome at trial, Ortega fails to establish that counsel was ineffective. Where it is asserted that counsel was ineffective for failure to make an argument, the petitioner must show that the argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. Ortega failed to state the nature or scope of any argument that trial counsel should have made or any prejudice suffered. The trial court properly denied relief, and Ortega fails to demonstrate that he was entitled to postconviction relief. Appeal dismissed; motion moot. Wood, J., concurs. Hart, J., dissents. . Ortega was charged and tried under alternate theories of rape. A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5 — 14— 103(a)(1) (Repl. 2013). A person also commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he or she is physically helpless. Ark. Code Ann. § 5 — 14—103(a)(2)(A).

COURTNEY HUDSON GOODSON, Associate Justice | Appellant, Willie Hutcherson, appeals 'the dismissal of a pro se civil complaint and amended complaint, which alleged that the appellees, acting under color of state law, had engaged in discrimination in violation of the Arkansas Civil Rights Act of 1993 (ACRA), codified as Arkansas Code Annotated sections 16-123-101 to -108 (Repl. 2016), had also engaged in a civil conspiracy, and committed the tort of outrage. Appellees filed a motion to dismiss-the appeal based on, among other things, the fact that the claims were barred by | gthe statute of limitations. The circuit court granted the motion and dismissed the complaint without prejudice based on the grounds set forth in appel-lees’ motion to dismiss. We review a circuit court’s decision on a motion to dismiss a complaint by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). In order to prevail on a motion to dismiss a complaint on the basis of a statute-of-limitations defense, it. must be barred on its face. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). Viewing the facts alleged in Hutcherson’s complaint as true, it is clear from the face of the complaint that his claims were barred by the statute of limitations. Therefore, we affirm without reaching the other grounds on which Hutcherson’s complaint was dismissed. In 2000, Hutcherson was found guilty by a jury of four counts of aggravated robbery, three counts of misdemeanor theft of property, and one count of felony theft of property. Hutcherson was sentenced as a habitual offender to an aggregate term of 2880 months’ imprisonment. Hutcherson’s convictions and sentences were affirmed by the Arkansas Court of Appeals. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). In support of the claims set forth in the civil complaint, Hutcherson alleged that the statements of two investigating officers had been disclosed to the defense by the prosecution |3during discovery;' that his original public defender, Steven Abed, had not read those statements until Hutcher-son gave him copies of those statements during the course of a pretrial hearing; that Abed ■ disregarded Hutcherson’s request to turn the statements over to the trial judge; and that Hutcherson subsequently observed Abed hand over the two statements to the prosecutor, Terry Bell, outside the courtroom. Hutcherson alleged that this conduct showed that Abed and Bell engaged in a civil conspiracy and 'Committed the tort of outrage by covering up the ethical violations, committed by Abed and by obtaining a conviction despite apparent, flaws in the investigation of the crimes. Although Abed withdrew as Hutcherson’s counsel prior to trial, Hutch-erson further alleged that prosecutor Bell wrongfully influenced his second public defender such that mistakes were made that led to his conviction and the waiver of issues that should have been preserved on direct appeal. Finally, Hutcherson asserted that the appellees had acted under color of state law when they violated his civil 'rights and engaged in tortious conduct. For the reasons explained below, Hutcher-son’s tort claims and civil rights claims are barred by the statute of limitations. Once a defendant. has affirmatively raised a statute-of-limitations defense, and it is clear from the face of the complaint that the action is barred by the applicable limitations | ¿period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 258 (1996). The statute of limitations begins to run when the injury occurs, not when it is discovered. Dye v. Diamante, 2017 Ark. 42, 510 S.W.3d 759. Affirmative actions of concealment of a cause of action will toll the statute of limitations. Chalmers, 326 Ark. 895, 935 S.W.2d 258. Ignorance of a right to pursue a cause of action, however, does not prevent the operation of the statute of limitations. First Pyramid Life Ins. Co. of Am. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992). The statute is tolled only when the ignorance is produced by affirmative and fraudulent acts of concealment. Id. Therefore, to rebut a limitations defense, a plaintiff must describe specific fraudulent acts committed for the purpose of concealing a cause of action. See id. (holding that mere allegations of fraud are not enough to create an issue of material fact that would avoid summary judgment on a limitations defense). We have traditionally applied a three-year statute of limitations to actions arising under a liability that is imposed by statute. Douglas v. First Student, Inc., 2011 Ark. 463, 385 S.W.3d 225. Moreover, Arkansas Code Annotated section 16-123-105(c) states in pertinent part that, in construing the ACRA, courts must look for guidance to state and federal decisions pertaining to actions filed pursuant to the federal civil rights act, 42 U.S.C. § 1983. Federal courts have typically applied the three-year statute of limitations to § 1983 actions. Jones v. Frost, 770 F.3d 1183 (8th Cir. 2014); Miller v. Norris, 247 F.3d 736 (8th Cir. 2001). [ fiIt has long been the law in this state that a three-year statute of limitations applies to all tort actions hot otherwise limited by law. O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997). A civil conspiracy is an intentional tort. Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002). We have held that the tort of outrage is governed by the three-year statute of limitations. McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998). Based on the above, all of Hutcherson’s claims are subject to the three-year statute of limitations found in Arkansas Code Annotated section 16-56-105(3). Treating the facts alleged in the complaint and amended complaint as true, Hutcherson alleged that the actions that gave rise to the claims set forth in his complaint took place in 1999, before and during the timeframe of his trial and conviction. Hutcherson’s allegations further demonstrated that he was aware of the alleged discriminatory and tortious conduct at the time it occurred. Hutcherson filed his civil action in 2016 — over ten years after the three-year statute of limitations had expired. In view of the above, it is clear from the face of Hutcherson’s complaint that his claims were barred by the statute of limitations, and Hutcherson failed to rebut this defense by providing sufficient non-conclusory allegations of fraudulent concealment. Chalmers, 326 Ark. 895, 936 S.W.2d 258. Affirmed. . Appellees also moved to dismiss the complaint as barred by res judicata, sovereign immunity, qualified immunity, and absolute prosecutorial immunity, and because Hutch-erson had failed to . state claims against the named defendants and was otherwise barred from collaterally attacking criminal proceedings through a separate civil action. . Hutcherson asserted in his complaint that these two statements identified three individuals other than Hutcherson as the perpetrators of two of the robberies, .Hutcherson contended that Abed had violated the rules of professional conduct by turning these statements over to the deputy prosecutor and that the prosecutor failed to report the violation and instead used the conduct to influence the public defender’s actions in defending the case. . The United States Supreme Court held that § 1983 claims accruing within a particular state should be governed by that state’s statute of limitations governing personal-injury claims. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), superseded on other grounds by 28 U.S.C. § 1658(a), as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). In Arkansas, the statute of limitations for personal-injury claims is three years. Ark. Code Ann. § 16-56-105(3) (Repl. 2005).

MIKE MURPHY, Judge | ¶ This medical-malpractice case stems from the death of John D. Peters, Jr. (“Mr. Peters”), who was admitted to appellant Turning Point Behavioral Health (“Turning Point”), a unit located at Saint Mary’s Regional Medical Center (“St. Mary’s”), and upon his release, hanged himself ten days later. Appellee James Robertson Peters, as personal representative of the estate, initiated suit. We affirm. |¾1. Facts and Procedural History Mr. Peters was admitted to Turning Point following the death of his wife of 37 years and two resulting suicide attempts. Mr. Peters had long suffered from bipolar disorder with periods of severe anxiety. His second suicide attempt occurred on December 10, 2013, and resulted in an emergency-room visit to St. Mary’s. The inquiry and assessment form that was filled out in the emergency room recognized that Mr. Peters’s son, John D. Peters III (“Jay”), was Mr. Peters’s legal guardian. Notably, both Mr. Peters and Jay signed the consent for voluntary admission on December 10, 2013. On December 13, 2013, a social worker from Turning Point filed a petition to involuntarily admit a person with mental illness, which the Pope County Circuit Court granted on December 16, 2013. Nothing in the petition acknowledged that Mr. Peters had a legal guardian. On December 26, 2013, Mr. Peters was discharged from Turning Point on his own recognizance. The discharge summary revealed that Mr. Peters denied further suicidal ideations; he had engaged in no self-destructive behavior since admission and seemed ready for discharge; he was future oriented and had interacted very positively with staff and peers; and it was felt that he had reached maximal benefit of hospitalization. On January 6, 2014, Mr. Peters hanged himself. Four days after the death of Mr. Peters, appellees’ (Mr. Peters’s estate and heirs) attorney sent a seven-page letter to appellant with the heading “Important Notice Regarding Document and Data Preservation.” This broad letter gave appellant notice that the heirs and estate of Mr. Peters had retained legal counsel tp investigate a potential |3claim, and appellant was noti fied “not to destroy, conceal or alter any paper or electronic files....” At that time, medical records of discharged patients were, kept in two places: (1) copies of the paper portion of the records were scanned to Laserfiche by a third-party vendor and then shredded and (2) the electronic portion of the medical records was maintained 'on a computer program known as Medi-.Tech, . After receipt of the letter, Tim Copeland,'chief'quality officer of Russellville Holdings, LLC (another name for appellant) told the director of the health-information-management department, Paula Page, to sequester the paper portion of Mr. Peters’s records. Subsequently, Turn-, ing Point retained legal counsel. Turning Point responded to the letter on February 7, 2014, requesting a meet-and-confer conference to discuss the breadth and scope of the document-preservation letter. Turning Point sent a follow-up request on February 14, 2014, because counsel had not responded. A few. days later, the. attorneys conducted a telephone conference, and appel-lees’ attorney sent a follow-up one-page letter narrowing down the preservation request. Around the same time* but before the telephone conference occurred, Annette Smith replaced Paula Page as health-information-management director. In an affidavit, Smith explained that she had not been provided a copy of the letter that the hospital received regarding document and data preservation. She said at some point between late January but before February 10, 2014, she discovered, in a drawer of a desk previously used by Paula Page, Mr. Peters’s paper medical records. She explained, as in the ordinary course of business, that she took the complete paper portion to EDCO Health Information Solutions, the third-party vendor that scans medical records into Laserfiche, Uto be scanned. Smith received the paper medical records back once they had been scanned. At some point between February 10, 2014, and February 9, 2015, the paper portion of the'records was shredded in the usual and ordinary course of business; she explained that this was not done maliciously or to destroy evidence. From her point of view, “a superior copy of the paper records existed on Laserfiche at the time the paper portion was shredded.” Appellees eventually filed suit on May 6, 2015. Prior to, and during the course of, litigation, four different'sets of the medical records were produced, for various reasons that were set out in the affidavit by Smith. In February 2015, after the contents of the medical records had changed four times, counsel for appellees made a demand for a physical inspection of Mr. Peters’s original medical■' chart. Of particular importance, appellees sought to document the actual content of the original physical chart as it was on the day of Mr. Peters’s discharge and whether the original chart contained guardianship orders that appellees claimed they had provided to Turning Point, but Turning Point claimed the contrary. It was then that the hospital and the appellees discovered that the original paper medical chart had likely been destroyed by Saint Mary’s. As a result, appellees filed a motion to compel their access to Mr. Peters’s original chart or, in the alternative, to force Saint Mary’s to . admit on the record-that they had intentionally destroyed the original chart. In response, appellant stated that it could not permit inspection of. the original chart because it had been destroyed. Appellees filed a motion to. strike appellant’s answer, arguing that their ability to obtain a full and fair trial had been irretrievably compromised as a result of the evidentiary destruction of the | ¿medical records. After a hearing on the motion, the circuit court found that, after careful consideration, the original medical file in question was so important to the case that its preservation was essential to a just adjudication. In its order, the court recognized that striking an answer is very serious, but it found appellant’s conduct to be most egregious. Appellant filed a motion to reconsider, but the circuit court denied appellant’s motion after a hearing. Appellant timely appealed, and we have jurisdiction per Ark. R. App. P. — Civ. 2(a)(4), which states that an appeal .may be taken from an order that strikes an answer. In Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 319, 820 S.W.2d 444, 445 (1991), the supreme court explained that the general purpose of Ark. R. App. P. — Civ. 2(a)(1) (an appeal may' be taken from a final judgment or decree) is to prevent piecemeal appeals while portions of the litigation remain unresolved but that, quite differently, Ark. R. App. P. — Civ. 2(a)(4) allows a piecemeal approach. On appeal, appellant argues three points: (1) the court erred as a matter of law in finding that spoliation of evidence occurred; (2) the court erred as a matter of law in finding , that appellees’ letters, sent long before any suit was filed, unilaterally imposed a duty to preserve the paper copy of the paper portion of the record; and (3) the court erred in imposing the extraordinary sanction of striking the answer. II. Spoliation of Evidence On appeal from a circuit court’s determination of a purely legal issue, we must decide only if its interpretation of the law was correct, as we give no deference to the circuit court’s conclusion on a question of law. Kraft v. Limestone Partners, LLC, 2017 Ark. App. 315, at 5, 522 S.W.3d 150, 153. When a case is tried by a circuit court sitting | (¡without a jury, the inquiry on appeal is whether the circuit court’s fact-findings are clearly erroneous, or clearly against the preponderance of the evidence. Rial v. Boykin, 95 Ark. App. 404, 408, 237 S.W.3d 489, 492 (2006). Recognition must be given to the circuit court’s superior opportunity to determine credibility of witnesses and the weight to be given to their testimony. Id. Our supreme court has defined “spoliation” as “the intentional destruction of evidence and when it is established, [the] fact finder may draw [an] inference that [the] evidence destroyed was unfavorable to [the] party responsible for its spoliation.” Goff v. Harold Ives Trucking Co., 342 Ark. 143, 146, 27 S.W.3d 387, 388 (2000). However, we must begin our analysis by acknowledging that Arkansas case law on spoliation is sparse. For ■ example, this court has not previously addressed whether spoliation of medical documents occurs when the documents are scanned and converted to another format. The spoliation cases in Arkansas involve tangible evidence, such as a halogen lamp and a water-pipe clamp and bolt. See Bunn Builders, Inc. v. Womack, 2011 Ark. 231, 2011 WL 2062393; see also Rodgers v. CWR Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2000). Our supreme court held thát a circuit court is not required to make a specific finding of bad faith on the part of the spoliator. Bunn Builders, supra. Unlike the case at hand, the plaintiffs in Bunn Builders sought to implement jury instructions on spoliation rather than striking the answer. Bunn Builders, 2011 Ark. 231, at 2. Regardless, it serves as guidance in our analysis on whether spoliation actually occurred. In Bunn Builders, the circuit court found that the parties had a duty and an agreement to preserve the evidence in the case but that the motive behind the destruction of evidence was unclear and granted |7that the jury be instructed on spoliation. Id. The appellants appealed, arguing that the circuit court erred in instructing the jury on spoliation because there was no initial finding by the court that the destruction was done in bad faith. Id. The supreme court explained that Arkansas courts have never specifically held that a circuit court must find intentional destruction indicating a desire to suppress the truth before a spoliation instruction can be given. Id. at 10. Therefore, the supreme court concluded that a finding of bad faith on behalf of the spoliator is not necessary. Id. at 11. The court in Bunn Builders relied on Rodgers for guidance. Rodgers was injured in a construction-site accident when a section of water pipe that was suspended from the ceiling fell and struck him as he was pulling feeder wires out of an electrical panel in the basement of the Pulaski County Courthouse. Rodgers, swpra. The parties stipulated that the appellee, the contractor, had lost the clamp and bolt that held the water pipe to the ceiling before the accident occurred, and the appellants requested a spoliation instruction. Rodgers, 343 Ark. at 129, 33 S.W.3d at 508. The circuit court rejected a non-AMI jury instruction propounded by the appellants, noting that the clamp and bolt were available at the time the appellants’ lawsuit was initiated and that the appellants had presented no proof that the contractor willfully lost or intentionally destroyed the evidence. Id. On appeal in Rodgers, the appellants argued that the record reflected that the contractor had been in physical possession and control of the pipe, clamp, and bolt involved in the accident. Rodgers, 343 Ark. at 130, 33 S.W.3d at 510-11. The supreme court affirmed the circuit court’s decision to reject, appellants’ spoliation instructions because (1) the circuit court specifically found that the evidence had not been | ^intentionally lost or destroyed; (2) the circuit court had permitted counsel to argue the same points even though the instructions were not submitted to the jury; and (3) the evidence was available shortly after the accident, but no meaningful discovery was commenced until five years following the accident. Id. The supreme court held that “[i]n absence of any intentional misconduct, we cannot say that the circuit court abused its discretion by failing to give the jury an instruction on spoliation of evidence.” Id. One notable difference in Rodgers is that the case had been initiated, yet discovery was not conducted until five years later. Here, the case had not yet been initiated when the evidence was considered destroyed. Appellant first argues that spoliation of the medical records did not occur because the paper portion of Mr. Peters’s medical records was not shredded until after the entire paper portion of the record had been scanned to Laserfiche. However, it is important to appellees that they should have had an opportunity to inspect the physical paper chart as it existed when Mr. Peters was discharged, as appellees contend that Mr. Peters was not adequately assessed by the treating physician, Dr. Stinnett. Additionally, it is important to appellees to know whether copies of the guardianship orders were in the paper file to show that appellant wrongfully discharged Mr. Peters without consulting his guardian. Appellant explained that it is its policy to recognize guardianship orders only if they are located in the patient’s medical chart. Appellant further contends that the electronic version of the record did not contain a guardianship order, so it must not have been in the record because the electronic copy is an exact replica. On the contrary, appellees argue that having the opportunity to inspect the actual chart, as it existed at the time of |fldischarge, could reflect otherwise. Appellees assert that a genuine dispute as. to the actual content of the medical record on the day of discharge exists and that the only way to resolve this issue is to examine the original. We agree and decline to accept appellant’s logic that a duplicate of the evidence was made before it was destroyed. It is appellees’ burden to prove that Mr. Peters was wrongfully discharged, and to do so appellees need to know what the discharge notes revealed the day of Mr. Peters’s release and whether. Dr. Stinnett wrongfully released his patient on his own recognizance, because a guardianship order existed in the file. It is well established that we require the fact-finder to base its decision on proof, and not mere speculation or conjecture. Rodgers, 343 Ark. at 131, 33 S.W.3d at 509-10. Here, the parties and the fact-flnder would be required to speculate as to what was in the stack of documents and what was actually in front of the caregivers when the decision to discharge Mr. Peters was made. Moreover, for our analysis, the manner in which appellant destroyed the records is irrelevant because, as determined in Bunn Builders, a finding of bad faith is not necessary. We distinguish the situation at hand from one in which the letter to preserve the records came after the flies had been converted to an electronic format. Here, we find it notable that appellees sent a letter to preserve the documents before they were destroyed and converted into an electronic format. As in Rodgers, the evidence was available following the death of Mr. Peters, but unlike Rodgers, meaningful discovery had commenced, yet destruction of the evidence still occurred. For these reasons, we must affirm on this point. | mill. Duty to Preserve Other courts have held that whether a duty to preserve evidence exists is a question of law for the court. Cockerline v. Menendez, 411 N.J.Super. 596, 988 A.2d 575, 589 (App. Div. 2010). This court does not defer to the circuit court on a question of law. Clark v. Caughron, 2017 Ark. App. 409, at 2, 526 S.W.3d 867. We review the issue de novo, as on review of any question of law, and simply apply the applicable law. Muhammad v. State, 67 Ark. App. 262, 998 S.W.2d 763 (1999). Under Ark. R. Civ. P. 37(b)(2), a party risks sanctions if he or she destroys documents or other evidence after the court has issued an order compelling discovery or a protective order, for destruction constitutes an obvious failure to comply with the order. However, the rule does not expressly address the destruction of relevant documents before litigation has commenced or after a complaint has been filed but before the documents are sought via discovery. 2 David Newbern, John J. Watkins, D.P. Marshall Jr, & Brandon J. Harrison, Arkansas Civil Practice & Procedure § 21:16 (5th ed. 2017). In Arkansas, the standard is very clear in criminal cases that the State’s duty to preserve evidence is limited to that which “might be expected to play a significant role in the suspect’s defense” and that the “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Lee v. State, 327 Ark. 692, 700, 942 S.W.2d 231, 235 (1997). However, the duty is not so clear in civil cases. Courts in other jurisdictions have held that a party has an obligation to preserve relevant evidence upon receiving notice of being sued and when he or she should know Inthat it may be relevant to future litigation. Newbern' et a!., supra. Further, § 21:16 explains, The scope of the duty to preserve evidence “is not boundless;” and á potential litigant “need do only what is reasonable under the circumstances.” Likewise, the duty to preserve evidence does not extend to every document in one’s possession, for such a responsibility would “cripple large corporations .., that are almost always involved in litigation.” As one U.S. • District Judge has observed, “to hold that a corporation is under a duty, to preserve all e-mail potentially relevant to any future. litigation would be tantamount to holding that the corporation must preserve all e-mail,” a result that would be “especially burdensome where the e-mail system [is] used primarily for routine communication. (Citations omitted.) However, the Eighth Circuit has acknowledged it is less willing to let corporations hide behind their retention policies. The Eighth Circuit in Lewy v. Remington Aims Co. concluded that “a corporation cannot blindly destroy documents and expect to be shielded by a'seemingly innocuous document retention policy.” 836 F.2d 1104, 1112 (8th Cir. 1988). The Lewy court admonished the defendant for negligently failing to preserve the evidence requested and suggested that a court should consider whether the record retention policy is “reasonable considering the facts and circumstances surrounding the relevant documents.” Id. The Eighth Circuit elaborated in Morris v. Union Pacific Railroad, 373 F.3d 896 (8th Cir. 2004), to also look at the intention of the company destroying evidence. Here, appellees argue that a similar standard in criminal eases should apply in civil cases; they argue that appellant was under a duty to preserve all items that “might be material” to a potential claim. Appellees assert that it was reasonably foreseeable that the original paper chart might be material to that potential claim, We agree. ' | i„We rely on Bum Builders, supra, for insight into our policy. There, painters were painting a building late at night, and after they had left, a fire destroyed the building. Days later, the owners of the building and the insurance company (the plaintiffs) retained certain items for preservation and' testing, including a halogen lamp that had been left by the painters; Before filing suit, the painters’ insurance company (the defendant) sent a'letter requesting that it be informed prior to, and present for, any examination or inspection of those items. The plaintiffs sent a letter to defendant claiming that the investigation was a result of the painters’ negligence. Thereafter, the lamp was authorized to be destroyed without inspection or testing by the defendant. The supreme court affirmed the circuit court’s finding that the parties had a duty and an agreement to preserve the evidence in the case; the court therefore granted their request for a spoliation instruction. Similarly, it is undeniable that appellant was on notice of a potential suit. Appellant was put on notice long before litigation commenced that it was to preserve “original dictation related to the intake, discharge, or care of Mr. Peters, whether maintained in digital, cassette tape format or otherwise.” Moreover, appellant acknowledged the request and originally sequestered the paper records. On appeal, appellant asserts that it was in compliance with the obligations under Arkansas law regarding the retention and preservation of medical records. However, that is not sufficient because not only was it reasonably foreseeable that th'e original medical records would be material to a potential claim, but also because the paper records existed at the time the letter was sent, and appellant agreed to retain them. It was not unduly burdensome for appellant to maintain 113the paper records. Unlike the example of the burdensome requirement that a corporation to preserve all e-mail correspondence, appellant was not required to keep all the.patients’ paper records, just Mr. Peters’s. For the foregoing reasons, we find that a duty attached. IV. Sanction of Striking an Answer The imposition of sanctions rests in the circuit court’s discretion. Ramsey v. Dodd, 2015 Ark. App. 122, 456 S.W.3d 790. It is crucial to our judicial system that circuit courts retain the discretion to control their dockets and imposition of discover sanctions. Lake Village Health Care Ctr., LLC v. Hatchett, 2012 Ark. 223, 407 S.W.3d 521. The circuit court is in a superior position to judge the actions and motives of the litigants, and the circuit court’s rulings should not be second-guessed. Id. Accordingly, we review the imposition of sanctions, even severe ones, under an abuse-of-discretion standard. Ramsey, 2015 Ark. App. 122, at 4-5, 456 S.W.3d at 793. A court commits an abuse of discretion when it acts thoughtlessly, improvidently, or without due consideration. Ocwen Loan Servicing, LLC v. Mickna, 2017 Ark. App. 430, at 4, 2017 WL 3882338. Arkansas Rule of Civil - Procedure 37(b)(2)(C) provides that if a party fails' to obey an order to provide or permit discovery, the court in which the action is pending‘may make such orders in regard to the failure as are just, including an order striking out pleadings or rendering a judgment by default against the disobedient party. The Arkansas Supreme Court noted in Goff that the same- sanctions available under the discovery rules are allowed as a spoliation sanction, which includes striking an answer of an offending party. 342 Ark. at 150, 27 S.W.3d at 391. . 114A review-of the record reveals that the circuit court did not reach its decision without due consideration. .The court conducted two hearings' and directed thoughtful questions to both parties.' In 'fact, the court admonished appellees’ counsel for cutting off the court’s questions and input. The circuit court chose to reject appellant’s argument that the electronic copy was an exact replica and therefore considered an “original.” In granting the motion to strike, the court acknowledged that striking the answer of a party is very serious but that the conduct was most egregious as evidenced by the fact that appellant was “clearly placed on notice not to destroy these critical documents,” yet it proceeded to destroy the original file anyway. The circuit court further considered the alternative to instruct the jury on spoliation of evidence, but found that it would be insufficient given the importance of the factual dispute surrounding which documents were in the original file. We recognize that we have never addressed a case in which the sanction was to strike the entire answer, but the option to do so does exist. Because the circuit court clearly found that appellant willfully destroyed the paper medical records and that a curative instruction, would be insufficient, we cannot say that the court abused its discretion by striking the answer. Affirmed. Virden, J., agrees. Glover, J., concurs. . The discharge summary report was dictated six days after Mr. Peters’s death.

KAREN R. BAKER, Associate Justice | íAppellant Myron Newjean Anderson, Jr., filed a pro se motion for appointment of counsel in connection with an appeal from orders entered by the circuit court denying Anderson’s pro se “Motion for Leave to File an Amended Declaratory Judgment” and a petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2016). Anderson sought a declaratory judgment on the basis that the elements of a terrorist act as set forth in Arkansas Code Annotated section 5-13-310 (Repl, 2006) are internally inconsistent, which Anderson contends renders the statute unconstitutional. In his petition to correct an illegal sentence, Anderson asserted that his sentence is illegal because it was imposed pursuant to an allegedly unconstitutional statute. On appeal, [¡¡Anderson advances the same arguments and allegations contained in the pleadings filed below. For the reasons set forth' below, it is clear from a review of the record that Anderson has failed to allege sufficient facts or to provide authority establishing that the challenged statute is unconstitutional on its face or in its application' and has likewise failed to demonstrate that his sentences are facially illegal. We therefore affirm, which renders his motion for appointment of counsel moot. In 2007, a jury found Anderson guilty of five counts of committing a terroristic act and one count of being a felon in posses: sion of a firearm, which arose out of the shooting of seven persons in a nightclub. The jury imposed an aggregate sentence of 1320 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Anderson v. State, CR-08-458, 2009 WL 196315 (Ark. App. Jan. 28, 2009) (unpublished) (original docket no. CACR 08-458). Anderson contended below and contends on appeal that .the statute under which he was charged and convicted is unconstitutional because there are inconsistencies with respect to the definition of the elements; of the offense. Anderson’s arguments are difficult to discern, but he appears to contend that the statute is inconsistent in that one subsection defines the offense to include shooting with the purpose of causing injury to another person; while another subsection of the act defines the offense narrowly to include shooting with the purpose of causing injury to another person at an • occupiable structure. Anderson asserts-1 ¡¡that he was denied due process because the information failed to provide notice that’ a terror-istic act must be committed against the occupant of, an occupiable structure. Anderson fails to explain or to provide any authority for the proposition that the alleged inconsistency in Arkansas Code Annotated section 5-13-310(a)(l)(A) and section 5-13-310(a)(2) renders the statute unconstitutional on its face or to establish how the alleged inconsistency amounted to a denial of due process. It is well settled that there is a presumption of validity attending every consideration of a statute’s constitutionality that requires the incompatibility between it and the constitution to be clear before we will hold it unconstitutional. Miller v. Ark. Dep’t of Fin. & Admin., 2012 Ark. 165, at 7, 401 S.W.3d 466, 470. Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality, and the heavy burden of demonstrating the unconstitutionality is on the one attacking it. Id. If possible, this court will construe a statute so that it is constitutional. Id. (citing McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006)). Invalidating a statute on its face is, manifestly, strong medicine that has been employed sparingly and only as a last resort. Nat’l Endowment for the 4Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). Furthermore, we will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case in the lower court. Drummond v. State, 320 Ark. 385, 389, 897 S.W.2d 553, 555 (1995). In order to sufficiently challenge a statute as unconstitutional on its face, an appellant is required to develop allegations before the circuit court that are supported by sufficient authority that the statute is either void for vagueness or overbroad. See Raymond v. State, 354 Ark. 157, 167, 118 S.W.3d 567, 574 (2003). The facial-overbreadth doctrine is restricted in its application and is not recognized outside the limited context of the First Amendment. Musser v. Mapes, 718 F.3d 996, 1001 (8th Cir. 2013) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); see also Bailey v. State, 334 Ark. 43, 54, 972 S.W.2d 239, 245 (1998). The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see also Cambiano v. Neal, 342 Ark. 691, 704, 35 S.W.3d 792, 799-800 (2000). A person whose actions are clearly proscribed by a- statute cannot assert its potential vagueness as applied to other persons or circumstances unless the law restricts constitutionally protected conduct. Garner v. White, 726 F.2d 1274, 1278 (8th Cir. 1984). We have held that, as a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the facts at issue. Bowker v. State, 363 Ark. 345, 355-56, 214 S.W.3d 243, 249 (2005). When challenging the constitutionality of a statute on grounds of | ^vagueness, the individual challenging • the statute must be one of the “entrapped innocent” who has not received fair warning that certain conduct has been proscribed. Id. However, if, by his or her action, that individual clearly falls within the conduct proscribed by the statute, he or she cannot be heard to complain. Id. Here, Anderson did not argue that the challenged statute was either overbroad or void for vagueness, and there is no authority that would have supported such arguments. Arkansas Code Annotated section 6-13-310 does not. implicate First Amendment rights, and Anderson can hardly be considered an- “entrapped innocent” as his conduct of firing shots inside a crowded nightclub clearly fell within the conduct proscribed by the statute. Bowker, 363 Ark. at 355-56, 214 S.W.3d at 249. Nor does Anderson provide authority or argument demonstrating that he was denied due process in the application of the statute under circumstances that led to his convictions and sentences. This court has said on numerous occasions that it will not consider arguments, even constitutional ones, that are not supported by legal authority or convincing argument and will not address arguments, when it is not apparent -without further research that the argument is well taken. Williams v. State, 371 Ark. 550, 558, 268 S.W.3d 868, 874 (2007). In sum, Anderson does not meet the heavy burden necessary to mount a constitutional challenge to section 5-13-310. Miller, 2012 Ark. 165, at 7, 401 S.W.3d at 470. The allegations set forth in Anderson’s petition to correct an illegal sentence are equally unavailing. Under Arkansas Code Annotated section 16-90-111 (Repl. 2016), a sentence is illegal when it is illegal on its face, and we have explained that a sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant |fiwas convicted. Bell v. State, 2017 Ark. 231, at 3-4, 522 S.W.3d 788, 790 (citing Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999)). Anderson does not contend that the sentences imposed on him exceeded the statutory maximum. Rather, he argues that his sentences are illegal based on his allegation that section 5-13-310 is unconstitutional. A review of the record clearly shows that Anderson’s sentences did not exceed the statutory maximum. The judgment-and-eommitment order reflects that Anderson was convicted of five counts of committing a terroristic act, of which three counts were designated as Class Y felonies, and two counts were designated as Class B felonies under section 5-13-310(b)(1) and (b)(2). Anderson was also convicted of being a felon in possession of a firearm, which is a Class B felony. See Ark. Code Ann. § 5-73-103(c)(1) (Repl. 2006). Moreover, Anderson’s habitual-offender status subjected him to enhanced sentences for Class Y felonies of not less than ten years nor more than sixty years or life, as well as enhanced sentences for Class B felonies of not less than five years nor more than thirty years. Ark. Code Ann. § 5-4-501(a)(2)(A) & (2)(C) (Repl. 2006). Anderson was sentenced to two terms of 240 months’ imprisonment and one term of 480 months’ imprisonment for his convictions for three counts of a Class Y terrorist act; and was sentenced to two terms of 120 months’ imprisonment for his convictions for two counts of a Class B terroristic act; finally, he was sentenced to 360 months’ imprisonment for his conviction for one count of being a felon in possession of a firearm. As stated above, the sentences were imposed consecutively for an aggregate term of 1320 months’ imprisonment for all six convictions. In view of the |7above, Anderson’s sentences do not exceed the statutory maximum and are therefore not illegal sentences pursuant to section 16-90-111. Affirmed; motion moot. . Because both orders denying relief and both notices of appeal from those orders were in-' eluded in one record lodged in this court, the appeal of both orders has been consolidated. . Arkansas' Code Annotated section 5-13-310(a)(1)(A) (Repl, 2006) states in-pertinent part, that a person commits a terroristic act if, while not in the commission of a lawful act, the person shoots at ... an object -with the purpose to cause injury to another person. Arkansas Code Annotated section -5 — 13— 310(a)(2) states in pertinent part that a person commits a terroristic act if ... the person shoots with the purpose to cause injury to a person or damage to property at an occupia-ble structure. . A similar argument was advanced by Anderson’s Codefendant, Michael Anderson, which was rejected by this court in Anderson v. State, 2013 Ark. 332, at 4-5 (per curiam). Anderson also advanced a similar argument in a prior petition to reinvest jurisdiction in ■ the trial court to consider a petition for writ of error coram nobis, which was likewise rejected by this court, in Anderson v. State, 2017 Ark. 44, at 5-6, 510 S.W.3d 755, 759 (per curiam).