Ward v. Ark. Dep't of Human Servs. , 2014 Ark. App. 491 ( 2014 )

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    2014 Ark. App. 491
                    ARKANSAS COURT OF APPEALS
                                          DIVISION IV
                                          No. CV-14-319
    AMBER WARD and CHRISTIAN                         Opinion Delivered   September 24, 2014
                      APPELLANTS                     APPEAL FROM THE CRITTENDEN
                                                     COUNTY CIRCUIT COURT
    V.                                               [NO. JV-2013-142]
                                                     HONORABLE RALPH WILSON, JR.,
    ARKANSAS DEPARTMENT OF                           JUDGE
    CHILDREN                                         AFFIRMED
                                  ROBIN F. WYNNE, Judge
           Amber Ward and Christian Ward appeal from an adjudication order in which the
    Crittenden County Circuit Court found their children, T.W. and H.W., dependent-
    neglected. They argue on appeal that the findings in the adjudication order and the evidence
    presented at the adjudication hearing do not satisfy the statutory requirements for a
    determination of dependency-neglect. We disagree and affirm.
           The Arkansas Department of Human Services (DHS or the Department) exercised a
    seventy-two-hour hold on T.W. and H.W. after a hotline report was received on August 12,
    2013, indicating that on August 10, 2013, three-month-old T.W. received a skull fracture.
    According to an affidavit submitted in support of DHS’s petition for emergency custody of
    the children, both appellants reported that T.W. had been dropped onto carpet by his paternal
    grandmother and hit in the head by a softball, thrown by another child, that had bounced off
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    of a vehicle, hit T.W.’s carseat, then struck T.W. Amber reported that she did not believe
    that either incident caused the fracture, but indicated that she had no other explanation for
    the injury.
           The circuit court granted DHS’s petition for emergency custody on August 19, 2013.
    The circuit court also found probable cause that the children were dependent-neglected in
    an order entered on September 3, 2013.
           The adjudication hearing was held on November 5, 2013. At the hearing, Dr. Karen
    Lakin, Medical Director of the Le Bonheur Cares team at Le Bonheur Children’s Hospital
    in Memphis, Tennessee, testified that T.W. was found to have a left parietal skull fracture after
    appellants noticed that he had unusual eye movements. Appellants reported at the hospital
    that T.W. had been hit by a ball that had bounced off a car. Dr. Lakin testified that T.W.’s
    injury was more significant than what would be expected following that event. She also
    testified that T.W. did not have any obvious external injuries, such as soft tissue swelling or
    significant bruising. Appellants also reported a fall onto a carpeted surface, which Dr. Lakin
    stated would not be likely to have caused the injury sustained by T.W. Dr. Lakin testified
    that if a three-month-old child were involved in an incident significant enough to cause a
    skull fracture, the caregivers would be able to tell medical personnel what caused the injury.
    According to Dr. Lakin, the history given by appellants did not explain the degree of injury
    sustained by T.W.
           Amber Ward testified that the only incidents she was aware of involving T.W. were
    him being dropped by his grandmother and struck by the ball. She stated that she felt as
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    though those were the only two incidents in which the fracture could have occurred. She
    denied that T.W. had any injuries prior to those incidents. Christian Ward testified that he
    did not have any additional information to give regarding T.W.’s injury. Lesley Faulkner
    with the Crimes Against Children Division (CACD) of the Arkansas State Police testified that
    Amber reported the two incidents during her interview but also stated that she did not think
    that those incidents caused the injury. Amber was unable to give another explanation as to
    how the injury occurred. CACD’s investigation resulted in a true finding of abuse for the
    fracture due to the medical records indicating that the child’s injuries could not have occurred
    in the manner reported by appellants.
           At the conclusion of the hearing, the circuit court stated from the bench that it was
    finding the children dependent-neglected on two grounds: (1) physical abuse by an unknown
    offender due to T.W. sustaining an injury at variance with the history given by appellants and
    (2) inadequate supervision for allowing serious physical injury to T.W. A written order
    finding the children dependent-neglected due to physical abuse to T.W. and inadequate
    supervision was entered on January 21, 2014. This appeal followed.
           A dependent-neglected juvenile includes any juvenile who is at substantial risk of
    serious harm as a result of abuse or neglect. Ark. Code Ann. § 9-27-303(18)(A)(ii) and (v)
    (Supp. 2013). In adjudication hearings, DHS must prove by a preponderance of the evidence
    that the children were dependent-neglected. Ark. Code Ann. § 9-27-325(h)(1) & (2)(B)
    (Supp. 2013). We review dependency-neglect findings de novo, but we will not reverse the
    circuit court’s findings unless they are clearly erroneous or clearly against the preponderance
    of the evidence. Clary v. Ark. Dep’t of Human Servs., 
    2014 Ark. App. 338
    . A finding is clearly
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    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 was made. Id.
           Appellants first argue that the findings in the adjudication order do not meet the
    statutory requirements for a finding of dependency-neglect. The circuit court found that the
    children were dependent-neglected due to abuse. Abuse includes any injury to a child that
    is at variance with the history given. Ark. Code Ann. § 9-27-303(3)(A)(iv) (Supp. 2013).
    Appellants contend, for reasons that are not entirely clear, that because the written order does
    not state that the abuse was due to an injury at variance with the history given, the issue is not
    preserved for appeal. In support, appellants cite Schultz v. Butterball, 
    2012 Ark. 163
    402 S.W.3d 61
    , in which our supreme court held that the lack of a written ruling on an issue
    precluded consideration of the issue on appeal. In this case, the circuit court issued a written
    order finding the children dependent-neglected due to abuse. Thus, the finding of abuse is
    included in the written order and is preserved for appeal. The lack of a reference in the order
    to an injury at variance with the history given is of no consequence, as this court may utilize
    a circuit court’s oral pronouncements to determine the intent behind its written orders. Porter
    v. Ark. Dep’t of Human Servs., 
    2010 Ark. App. 680
    378 S.W.3d 246
    . The circuit court clearly
    indicated at the hearing that its finding of abuse was based on an injury at variance with the
    history given. Furthermore, that finding is supported by the testimony at the adjudication
    hearing. Appellants’ argument lacks merit.
           Appellants also appear to argue that, because the offender who caused the injury to
    T.W. is unknown, there was no evidence that any act by the unknown individual constituted
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    abuse, as that term is defined in the applicable statute. The statutory definition of abuse
    includes any listed act or omission by “a parent, guardian, custodian, foster parent, person
    eighteen (18) years of age or older living in the home with a child, whether related or
    unrelated to the child, or any person who is entrusted with the juvenile’s care by a parent,
    guardian, custodian, or foster parent, including, but not limited to, an agent or employee of
    a public or private residential home, child care facility, public or private school, or any person
    legally responsible for the juvenile’s welfare.” Ark. Code Ann. § 9-27-303(3)(A). Appellants
    seem to be arguing that because the offender is unknown, it cannot be known whether the
    person who caused the injury is included in this group. As there was no indication that T.W.
    was not in appellants’ legal custody at the time of his injury, it necessarily follows that the
    injury was caused either by appellants or by someone they entrusted with the child’s care.
    This argument also lacks merit.
           Finally, appellants argue in their brief that abuse or neglect requires fault, culpability,
    knowledge, or intent.1 Appellants cite to no authority to support their claim. We do not
    consider arguments without convincing argument or citation to authority where it is not
    apparent without further research that the arguments are well-taken. Perryman v. Hackler, 
    323 Ark. 500
    916 S.W.2d 105
           HARRISON and GLOVER, JJ., agree.
           Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellants.
           Chrestman Group, PLLC, by: Keith L. Chrestman, for appellees.
            Because we hold that the finding of abuse by the circuit court was not in error, we
    decline to address the arguments on appeal regarding the circuit court’s finding of neglect
    due to inadequate supervision.

Document Info

DocketNumber: CV-14-319

Citation Numbers: 2014 Ark. App. 491

Judges: Robin F. Wynne

Filed Date: 9/24/2014

Precedential Status: Precedential

Modified Date: 4/14/2017