Harris v. Ark. Dep't of Human Servs. , 2015 Ark. App. 508 ( 2015 )


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  •                                  Cite as 
    2015 Ark. App. 508
    
                     ARKANSAS COURT OF APPEALS
                                            DIVISION II
                                           No. CV-15-258
    
    
    MARY HARRIS                                       Opinion Delivered   September 23, 2015
                                   APPELLANT
                                                      APPEAL FROM THE SEBASTIAN
                                                      COUNTY CIRCUIT COURT, FORT
    V.                                                SMITH DISTRICT
                                                      [NO. JV-2014-502]
    
    ARKANSAS DEPARTMENT OF                            HONORABLE ANNIE HENDRICKS,
    HUMAN SERVICES AND MINOR                          JUDGE
    CHILD
                        APPELLEES                     AFFIRMED
    
    
    
                               PHILLIP T. WHITEAKER, Judge
    
           Appellant Mary Harris was the custodian of her granddaughter, L.M. The Sebastian
    
    County Circuit Court adjudicated L.M. dependent-neglected based on Harris’s inability to
    
    adequately supervise the child.1 Harris appeals, arguing that the evidence before the court was
    
    insufficient to support the adjudication. We disagree and affirm.
    
           Adjudication hearings are held to determine whether the allegations in a dependency-
    
    neglect petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1) (Supp.
    
    2013). The Arkansas Department of Human Services (DHS) has the burden of proving that
    
    the children are dependent-neglected by a preponderance of the evidence. Ark. Code Ann.
    
    § 9-27-325(h)(1) & (2)(B) (Supp. 2013). The focus of an adjudication hearing is on the child,
    
    
           1
              S.L. and A.B., siblings of L.M., were also adjudicated dependent-neglected;
    however, Harris did not have custody of those children, and their adjudication is not an issue
    in this appeal.
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    not the parent; at this stage of a proceeding, the juvenile code is concerned with whether the
    
    child is dependent-neglected. Billingsley v. Ark. Dep’t of Human Servs., 
    2015 Ark. App. 348
    ;
    
    Worrell v. Ark. Dep’t of Human Servs., 
    2010 Ark. App. 671
    , at 10, 
    378 S.W.3d 258
    , 263.
    
           A “dependent-neglected juvenile” includes any juvenile who is at substantial risk of
    
    serious harm as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or
    
    parental unfitness. Ark. Code Ann. § 9-2-303(18)(A) (Supp. 2013). Neglect means an act or
    
    omission of a parent or custodian that constitutes a failure to take reasonable action to protect
    
    a juvenile from abandonment, abuse, neglect, or parental unfitness when the existence of this
    
    condition was known or should have been known. Ark. Code Ann. § 9-27-303(36)(A)(iii)
    
    (Supp. 2013). The statutory definition of a neglected child does not require proof of actual
    
    harm or impairment having been experienced by the child. Maynard v. Ark. Dep’t of Human
    
    Servs., 
    2011 Ark. App. 82
    , 
    389 S.W.3d 627
    . The term “substantial risk” speaks in terms of
    
    future harm. Id. Under our standard of review, we review a trial court’s findings of fact de
    
    novo, but we will not reverse those findings unless they are clearly erroneous, giving due
    
    regard to the trial court’s opportunity to judge the credibility of the witnesses. Billingsley,
    
    supra; Brewer v. Ark. Dep’t of Human Servs., 
    71 Ark. App. 364
    , 364, 
    43 S.W.3d 196
    , 199
    
    (2001). With these standards in mind, we turn to the facts considered by the circuit court in
    
    deciding whether L.M. was dependent-neglected.
    
           Harris is the mother of Sylnonia Lawrence. Lawrence, in turn, is the mother of three
    
    children: L.M., born on June 17, 2007; A.B., born on June 25, 2009; and S.L., born on
    
    
    
    
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    August 14, 2014. When S.L. was born with methamphetamine and THC in his system, DHS
    
    filed a petition for emergency custody of S.L., which the circuit court granted.2
    
           Approximately a week and a half after taking emergency custody of S.L., DHS filed
    
    a petition for emergency custody and dependency-neglect with respect to all three of
    
    Lawrence’s children, including L.M. DHS asserted that the children were dependent-
    
    neglected due to abandonment, abuse, neglect, or parental unfitness. Because Harris had been
    
    granted legal custody of L.M. in 2008, she was also named as a defendant on this petition.
    
    DHS alleged several grounds as to why L.M. was dependent-neglected: (1) a previous hold
    
    had been taken on a sibling, S.L., due to substance abuse by the mother and the presence of
    
    methamphetamine and THC in S.L.’s system at the time of his birth; (2) Lawrence, L.M.’s
    
    mother, had attempted suicide several times in the preceding month; and (3) Harris had left
    
    L.M. unsupervised with Lawrence, despite being aware of Lawrence’s drug use and untreated
    
    mental disorders.
    
           The court granted the ex parte order for emergency custody the same day it was filed,
    
    and the children were removed from Lawrence’s and Harris’s custody. The court
    
    subsequently entered a probable-cause order, finding that there was probable cause that the
    
    emergency conditions that necessitated removal of L.M. from Harris’s custody continued.
    
    The court also scheduled an adjudication hearing.
    
    
    
    
           2
            Although S.L. was born on August 14, DHS did not place its seventy-two-hour hold
    on him until August 25 because he was immediately placed in the NICU after his birth due
    to withdrawal symptoms.
    
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           At the adjudication hearing, the court heard testimony on the issue of whether Harris
    
    could offer adequate supervision for L.M. and was fit to do so. The court heard testimony
    
    that Lawrence was a long-term methamphetamine user, including during her pregnancy with
    
    S.L. In addition, the court heard that Lawrence, while pregnant with S.L., had attempted
    
    suicide in front of L.M. More importantly, the court heard that, despite Lawrence’s history
    
    of drug usage and mental issues, Harris would sometimes leave L.M. and A.B. with Lawrence
    
    overnight; on one occasion, Harris left the children with Lawrence for four or five days while
    
    Harris went out of town with her boyfriend.
    
           Harris testified in response to this evidence against her. She began by listing the
    
    medications she was taking: Depakote, Wellbutrin, Zyprexa, which had been prescribed for
    
    her bipolar disorder; Klonopin and Norco, which were for pain relief and muscle spasms
    
    following back surgeries she had undergone in 2008; Valium; and Zolpidem. Harris then
    
    acknowledged Lawrence’s methamphetamine use and agreed that Lawrence was not in any
    
    condition to be a primary caretaker for any of her children. Harris also acknowledged
    
    Lawrence’s mental-health issues, explaining how she had tried to convince Lawrence to take
    
    her medications for her bipolar disorder, but Lawrence refused to do so. Harris agreed that
    
    L.M. had been removed from her custody because she had left the child alone with
    
    Lawrence. In her defense, Harris asserted that no one from DHS had ever told her that
    
    Lawrence could not see her children unsupervised. Immediately after that statement,
    
    however, she said that she knew that Lawrence “couldn’t be around the kids.” At the
    
    
    
    
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    conclusion of the hearing, the court adjudicated L.M. dependent-neglected. Harris timely
    
    appealed.
    
           On appeal, Harris raises three main points. First, she contends that “no emergency
    
    existed at the time DHS placed a 72-hour hold on L.M.” Second, she complains that, at the
    
    adjudication hearing, the circuit court found reasonable efforts on DHS’s part “without one
    
    iota of evidence, testimonial or tangible, offered by the agency that is burdened with
    
    providing the proof.” Finally, she contends that the allegations in the affidavits supporting
    
    the petition were not addressed or proved at trial.
    
           With respect to Harris’s first contention—that no emergency existed at the time of
    
    removal3—an ex parte emergency order directing removal of a juvenile is not an appealable
    
    order under Arkansas Supreme Court Rule 6-9(a). That rule allows appeals from adjudication
    
    orders; disposition, review, no-reunification, and permanency-planning orders when a Rule
    
    54(b) certificate has been issued; orders terminating parental rights; denials of the right to
    
    counsel; and denials of motions to intervene. Moreover, Harris provides no authority for the
    
    proposition that the facts and circumstances of the actual removal have any bearing on the
    
    circuit court’s ultimate decision regarding a dependency-neglect adjudication. See Ward v.
    
    Ark. Dep’t of Human Servs., 
    2014 Ark. App. 491
    , at 5 (“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.”).
    
    
           3
             At the adjudication hearing, Harris testified that she received a phone call from the
    caseworker at 10:30 p.m. advising that DHS was coming to remove the children from
    Harris’s home.
    
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           Harris’s second contention is that there was no proof that DHS provided reasonable
    
    efforts to prevent removal of the children. Under Arkansas Code Annotated section 9-27-
    
    303(48)(B) (Supp. 2013), however, the circuit court may deem that reasonable efforts have
    
    been made when the court finds that the first contact by the department occurred during an
    
    emergency in which the child could not safely remain at home, even with reasonable services
    
    being provided. The court made such a finding here in its ex parte order, which, again, is not
    
    an appealable order.
    
           The main thrust of Harris’s appeal, however, is that there were not sufficient facts
    
    introduced at the adjudication hearing to prove the allegations contained in the dependency-
    
    neglect petition. She notes that DHS’s dependency-neglect petition alleged that L.M. was
    
    dependent-neglected because she had been left unsupervised with Lawrence and that Harris
    
    therefore failed to provide adequate supervision for L.M. Harris contends that there was “no
    
    evidence provided to substantiate the allegations.”
    
           We disagree. The allegations were that Harris left L.M. unsupervised with Lawrence
    
    and that Harris knew of Lawrence’s drug use and mental-health issues. These allegations were
    
    well substantiated, in part by Harris’s own testimony that she knew of Lawrence’s drug
    
    addiction and bipolar disorder. In addition, with respect to the allegation that Harris left L.M.
    
    unsupervised with Lawrence, both L.M.’s aunt and A.B.’s father testified that Harris had left
    
    the child with her mother. Thus, there was clearly evidence in the record from which the
    
    circuit court could find that the allegations in the petition were true.
    
    
    
    
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           Moreover, it is clear from the record before us that the circuit court was extremely
    
    concerned with Harris’s fitness and ability to adequately supervise L.M. After hearing Harris
    
    testify, the court stated as follows:
    
           I know Ms. Harris has had this child for a long period of time . . . . But the court is
           extremely concerned with her demeanor, her inability to enunciate, the different
           narcotics that she takes, Depakote, Wellbutrin, Zyprexa, Klonopin, Valium, Norco,
           and Zolpidem, that she read into the record, which are for bipolar, for seizures, panic
           disorder, anxiety, muscle relaxer, pain, and insomnia, and just having watched her
           testify and listen to her attempts to enunciate, her demeanor in the courtroom while
           not testifying, the court is convinced that this child—I’m going to find this child to
           be adjudicated dependent-neglected based upon parental unfitness and substance
           abuse, although prescribed.
    
    The circuit court had the opportunity to observe Harris’s demeanor and difficulty in
    
    communicating during the hearing, and the court was clearly concerned with the amount
    
    of medications Harris was taking and how those medications impaired her ability to
    
    adequately supervise and care for L.M.
    
           This court is not to act as a “super factfinder,” substituting its own judgment or
    
    second guessing the credibility determinations of the court; we reverse only in those cases
    
    where a definite mistake has occurred. Johnson v. Ark. Dep’t of Human Servs., 
    2012 Ark. App. 244
    , at 5, 
    413 S.W.3d 549
    , 552; K.C. v. Ark. Dep’t of Human Servs., 
    2010 Ark. App. 353
    , 
    374 S.W.3d 884
    . In this case, we are unable to conclude that a mistake occurred.
    
           Affirmed.
    
           GLADWIN , C.J., and HOOFMAN , J., agree.
    
           Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.
    
           Tabitha B. McNulty, Office of Policy & Legal Services, for appellee.
    
           Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
    
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Document Info

DocketNumber: CV-15-258

Citation Numbers: 2015 Ark. App. 508

Judges: Phillip T. Whiteaker

Filed Date: 9/23/2015

Precedential Status: Precedential

Modified Date: 4/5/2017