Charles Gabel v. Arkansas Department of Human Services and Minor Children , 2022 Ark. App. 489 ( 2022 )

Cite as 2022 Ark. App. 489ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-22-282
Opinion Delivered November 30, 2022
CHARLES GABEL
APPELLANT APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. 26JV-21-320]
HONORABLE LYNN WILLIAMS,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILDREN
APPELLEES AFFIRMED
KENNETH S. HIXSON, Judge
There are four children involved in this dependency-neglect case: Minor Child 1
(MC1) (DOB 01-19-18), Minor Child 2 (MC2) (DOB 02-13-09), Minor Child 3 (MC3) (DOB
11-03-04), and Minor Child 4 (MC4) (DOB 03-17-10). However, MC2, MC3, and MC4
have a different father. This appeal concerns only MC 1 and putative father appellant
Charles Gabel. Gabel appeals after the Garland County Circuit Court filed an adjudication
order finding MC1 and the other involved children dependent-neglected. Appellant was
found to be MC1’s putative parent in the adjudication order. On appeal, appellant generally
argues that we must reverse and remand the adjudication of dependency-neglect because the
circuit court failed to make the requisite findings concerning him as the noncustodial parent,
failed to order a DNA test, and failed to award him visitation with MC1.1 We affirm.
I. Relevant Facts
The Arkansas Department of Human Services (DHS) has a history with this family.
The instant dependency-neglect case arose after Kim Tarkinton, the children’s mother,
appeared in circuit court on November 18, 2021, in a separate juvenile-court case involving
MC3. MC1 accompanied her mother to court. Ms. Tarkinton was actively under the
influence during the court proceedings and subsequently tested positive for
methamphetamine and cocaine at that time. As such, Division II Circuit Judge, Cecilia Dyer
ordered DHS “to take a 72 hour hold on the juvenile [MC1].” Thereafter, DHS filed a
petition for dependency-neglect on November 22, 2021.
In its petition, DHS explained that it had exercised a seventy-two-hour hold on MC1
on November 18, 2021, pursuant to the order issued by Judge Dyer. DHS explained that
Ms. Tarkinton is the biological mother of all four children and that James Emerson is the
father of MC2, MC3, and MC4 because he was married to Ms. Tarkinton at the time of
their birth. DHS alleged that appellant is the putative father of MC1 “because he was not
married to the mother at the time of birth and paternity has not been established.” MC2,
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In the adjudication order, Kim Tarkinton is named as the mother and parent of all
four minor children, and James Emerson is named as the other parent and father of MC2,
MC3, and MC4. Because neither Ms. Tarkinton nor Mr. Emerson filed a notice of appeal
from the adjudication order, neither is a party to this appeal. Further, because appellant is
listed as the putative parent of only MC1, the findings related to the other three minor
children are not at issue in this appeal.
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MC3, and MC4 were living with their father, Mr. Emerson. MC1 was living with Ms.
Tarkinton at the time of the removal by DHS. In the attached affidavit, DHS alleged that
after it had received Judge Dyer’s order, a DHS family-service worker (FSW) met with Ms.
Tarkinton. Appellant took MC1 to the FSW. The affidavit further alleged that MC1 was
“removed from the physical custody of Kimberly Tarkinton and Charles Gabel and the legal
custody of Kimberly Tarkinton on 11/18/2021 at approximately 4:30 pm because
circumstance or conditions of Kimberly Tarkinton present an immediate danger to the
health or physical well-being of the juveniles.” DHS concluded that the other children,
MC2, MC3, and MC4, should remain in the physical and legal custody of Mr. Emerson and
that Ms. Tarkinton should be restricted from removing those children from Mr. Emerson’s
care. The circuit court granted the petition and filed an ex parte order granting the petition
for emergency custody and an order for protection of juveniles from immediate danger. In
the order, the circuit court found that probable cause existed for removing MC1 from the
legal custody of Ms. Tarkinton and from the physical custody of both Ms. Tarkinton and
appellant. It further found probable cause existed to restrict Ms. Tarkinton from removing
the other children from Mr. Emerson and from having any unsupervised contact with the
children.
After a probable-cause hearing in which appellant attended with counsel, the circuit
court filed a probable-cause order on December 22, 2021. In relevant part, it found that
there was probable cause that the emergency conditions necessitating MC1’s removal from
Ms. Tarkinton’s custody continued. However, it found that MC1 could be returned home
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in appellant’s care on a trial basis pending adjudication. It further ordered that Ms.
Tarkinton’s visitation with the children “be suspended until at least the adjudication
hearing.”
An adjudication hearing was held on February 2, 2022. At the hearing, Brock Baker
testified that he is currently the FSW assigned to the case. Mr. Baker explained that in the
beginning of the case, there was another FSW assigned, but it was quickly reassigned to him.
Mr. Baker testified regarding the case history as already outlined above. He also testified that
since the probable-cause hearing, Ms. Tarkinton had refused to undergo a hair-follicle
screening or drug-and-alcohol assessment despite DHS’s efforts to set up appointments.
Moreover, Ms. Tarkinton had tested positive for amphetamines, methamphetamine, and
marijuana on January 20, 2022, in the other separate juvenile-court case.
Regarding appellant, Mr. Baker testified that DHS had attempted trial-home
placement with him; however, DHS had to terminate that trial-home placement on January
8, 2022, because there was no electricity in appellant’s trailer, and the temperature was
supposed to drop to an unsafe level that evening. Mr. Baker noted that, other than
appellant’s residence not having electricity and only one propane heat source at the time of
the trial-home placement, the rest of the home was clean and appropriate. Mr. Baker
explained that he did receive notice that the electricity had been restored two days later.
However, DHS did not set up any further trial-home placement because, in addition to the
electricity being an issue, appellant had allowed Ms. Tarkinton to return to his home despite
the fact that that the court had ordered no visitation between MC1 and Ms. Tarkinton.
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Additionally, although DHS staff had attempted to visit the home on multiple subsequent
occasions, including the day before the hearing, staff was not allowed in the home. It was
reported that staff would “hear things in inside the home, but no one would come to the
door.” Mr. Baker testified that “[t]he porch light on the home was on yesterday, so I believe
that means there’s probably power in the house now, but we did not get in the home to
confirm that.” Further, Mr. Baker testified that appellant had refused to provide a drug
screen, despite having been asked on three occasions, but he did admit that appellant had
denied any current drug use.
Appellant testified that Ms. Tarkinton is his wife and that MC1 is his child. Appellant
admitted that he did not have electricity at the home the day the trial-home placement ended,
but he explained that he had paid the bill that day to have electricity restored the next day.
Appellant claimed that he had asked for MC1 to be returned to his home after the electricity
was restored, but he stated he received no response from DHS. Appellant denied that he
refused to provide drug screens and stated that he had submitted every time he was asked to
do so. He admitted that, although he has had drug issues in the past, he was not currently
using drugs. He admitted that he knew Ms. Tarkinton had tested positive for illegal
substances. Appellant asked that MC1 be allowed to return home “where [MC1] belongs”
and explained that he had electricity with central heat and air at the time of the hearing.
On cross-examination, appellant admitted that he allowed Ms. Tarkinton back into
his home even though the court had ordered no visitation between Ms. Tarkinton and MC1.
He additionally explained that he previously had been addicted to methamphetamine but
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stated that he had been sober for years. Appellant additionally claimed that, despite knowing
that Ms. Tarkinton was using methamphetamine, she did not ever use drugs around him or
MC1. Appellant further admitted that he had been at home the day before the hearing but
claimed that he never heard DHS knocking at his door. Appellant testified that Ms.
Tarkinton’s job as a spiritual adviser supported their family and that he did not work full
time but instead worked “side jobs.” Appellant additionally admitted that he had not
developed a plan with Ms. Tarkinton should MC1 be returned to the home if Ms. Tarkinton
was not permitted to live in the home with him. He, however, stated that “if she feels like
she’s ordered to go, then she will definitely go.”
Ms. Tarkinton testified that she had married appellant after MC1’s birth. She
admitted that she had previously tested positive for drugs. She further admitted that she had
not moved out of the home and that she was still living in the home at the time of appellant’s
trial placement. At first, she claimed that she had assumed that she just “wasn’t supposed to
be left [unsupervised] with [MC1]” and not that she was not permitted to be in the home.
However, later in the hearing, she admitted that she had received a copy of the probable-
cause order stating that she was not allowed to be in the home. She stated that she did not
move out because she did not have anywhere to go. Ms. Tarkinton agreed that she would
go to rehabilitation or stay with neighbors or friends if she needed to do so. That said, Ms.
Tarkinton admitted that she has had difficulty following court orders in the past. In fact,
she explained that Judge Dyer in the other separate juvenile-court case had her handcuffed
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and placed “in the back room for about two hours” because she had “refused to take a drug
screen.”
At the conclusion of the hearing, the circuit court orally announced that it was
finding the children dependent-neglected. The circuit court specifically addressed appellant
and explained that Ms. Tarkinton was required to be out of the home before MC1 could be
placed back in the home. The circuit court further stated that appellant would have to certify
to DHS that Ms. Tarkinton had moved out of the home and that if DHS should discover
that Ms. Tarkinton is in the home at the same time MC1 is in the home, MC1 would be
removed. Thereafter, appellant specifically asked the circuit court to clarify whether Ms.
Tarkinton was able to communicate or have any visitation with her children. The circuit
court explained that Ms. Tarkinton’s visitation was suspended and that she was to have “[n]o
contact” until DHS was able to certify that she was clean and sober. Thereafter, the hearing
concluded.
The circuit court subsequently filed a written adjudication order on February 4, 2022,
finding the children dependent-neglected and making the following relevant findings:
5. Charles Gabel is a defendant because he is a putative parent for the
purposes of the Arkansas Juvenile Code as he has presented evidence of significant
contact [MC1]. Specifically, [MC1] has resided in his home with the juvenile’s
mother for some time. His rights as a putative parent have attached. However, he
has not provided evidence to the Court to establish paternity pursuant to ARK.
CODE ANN. § 9-27-325.
....
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11. The Court notes the lack of candor by Ms. Tarkinton and Mr. Gabel
regarding the circumstances surrounding their lack of working utilities and Ms.
Tarkinton’s remaining in the home since the probable cause hearing. . . .
12. The Court finds that [MC1] could safely return to the home with Mr.
Gabel on a trial home placement on the condition that Ms. Tarkinton and Mr. Gabel
convince the Department that Ms. Tarkinton is out of the home and residing
elsewhere. If the Department discovers that Ms. Tarkinton remains in or has
returned to the home while [MC1] is on a trial home placement, the Department is
certainly free to end that placement. If Ms. Tarkinton admits to an inpatient drug
treatment facility where [MC1] could be placed with her, the Court
defers to the professional judgment of the Department on whether it would be in the
best interest of the juvenile.
13. Visitation shall be at the reasonable discretion of the Department;
visitation and contact of the mother with her children with Mr. Emerson remains
suspended and shall not resume unless and until Ms. Tarkinton proves to the
Department that she is clean and sober.
14. The goal shall be reunification; the case plan developed by the Department
is approved.
15. The parents are ordered to participate and attend all visitation scheduled
with the juveniles; to schedule and keep all appointments; to obtain and maintain a
safe, suitable, and appropriate home for self and the juveniles; to maintain an
environment free from illegal substances and other health/safety hazards; to obtain
and maintain adequate income to support self and the juveniles; to request assistance
for transportation from the Department forty-eight (48) hours in advance; to
cooperate with the Department; to permit the Department to inspect the home; to
participate in any service as may be requested by the Department; to demonstrate
stability and the ability to provide for the health, safety, and welfare of the juveniles;
to maintain consistent contact with the Department and with the juveniles; and to
keep the Department informed of a current address.
....
17. Mr. Gabel testified today that he is clean and sober and has not used
methamphetamine in years; the Court will not order Mr. Gabel to participate in urine
or hair strand drug screens unless the Department has evidence that he has relapsed.
This appeal followed.
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II. Standard of Review
Adjudication hearings are held to determine whether the allegations in a petition are
substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1)(A) (Repl. 2020). A dependent-
neglected juvenile is one at substantial risk of serious harm as the result of, among other
things, abandonment, abuse, neglect, or parental unfitness committed against the juvenile,
a sibling, or another juvenile. Ark. Code Ann. § 9-27-303(17)(A) (Supp. 2021). Dependency-
neglect allegations must be proved by a preponderance of the evidence. Ark. Code Ann. §
9-27-325(h)(2) (Supp. 2021). In dependency-neglect cases, the standard of review on appeal
is de novo, but we do not reverse the circuit court’s findings unless they are clearly erroneous
or clearly against the preponderance of the evidence. Walker v. Ark. Dep’t of Hum. Servs., 2017
Ark. App. 627, 534 S.W.3d 184. 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. Id. In reviewing a dependency-neglect
adjudication, we defer to the circuit court’s evaluation of the credibility of the witnesses. Id.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.
Id. Further, only one allegation is necessary to support a dependency-neglect finding. See
Raynor v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 263, 646 S.W.3d 406.
III. Analysis
Appellant generally argues that we must reverse and remand the adjudication of
dependency-neglect because the circuit court failed to make the requisite findings concerning
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him as the noncustodial parent, failed to order a DNA test, and failed to award him visitation
with MC1. We disagree and address each of these arguments individually.
A. Requisite Noncustodial-Parent Findings
First, appellant argues that he was entitled to have the circuit court make all the
requisite findings to which a noncustodial parent is entitled to under Arkansas Code
Annotated section 9-27-327(a)(1)(B), including that he is a fit parent and that he did not
contribute to the dependency-neglect. Although he acknowledges that he failed to request
these findings at the adjudication hearing, he nevertheless argues that his failure to do so
does not waive his right to challenge the sufficiency of the evidence on appeal, citing our
opinion in Burks v. Arkansas Department of Human Services, 2021 Ark. App. 309, 645 S.W.3d
527. However, appellant’s argument is without merit because appellant was not a
“noncustodial parent” as defined under the code at the time of the adjudication hearing.
Arkansas Code Annotated section 9-27-327(a)(1)(B) provides the following:
(B)(i) If the court finds that the juvenile is dependent-neglected, the court shall
determine whether a noncustodial parent contributed to the dependency-neglect and
whether the noncustodial parent is a fit parent for purposes of custody or visitation.
(ii) A noncustodial parent in subdivision (a)(1)(B)(i) of this section is presumed to
be a fit parent.
(iii)(a) If no prior court order has been entered into evidence concerning custody
or visitation with the noncustodial parent of the juvenile subject to the dependency-
neglect petition, the petitioner shall, and any party may, provide evidence to the court
whether the noncustodial parent is unfit for purposes of custody or visitation.
(b) The petitioner shall provide evidence as to whether the noncustodial parent
contributed to the dependency-neglect.
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(iv)(a) The court may transfer temporary custody or permanent custody to the
noncustodial parent after a review of evidence and a finding that it is in the best
interest of the juvenile to transfer custody, or the court may order visitation with the
noncustodial parent.
(b) An order of transfer of custody to the noncustodial parent does not relieve the
Department of Human Services of the responsibility to provide services to the parent
from whom custody was removed, unless the court enters an order to relieve the
department of the responsibility.
(v) If the court determines that the child cannot safely be placed in the custody of
the noncustodial parent, the court shall make specific findings of fact regarding the
safety factors that need to be corrected by the noncustodial parent before placement
or visitation with the juvenile.
(Emphasis added.)
A “parent” is defined as a biological mother; adoptive parent; or a man to whom the
biological mother was married at the time of conception or birth, who has signed an
acknowledgment of paternity, who has been found by a court to be the biological father or
otherwise established paternity, or who is listed as the parent on the birth certificate of the
child. Ark. Code Ann. § 9-27-303(41). Additionally, a “putative father” is defined as “any
man not deemed or adjudicated under the laws of the jurisdiction of the United States to be
the biological father of a juvenile who claims to be or is alleged to be the biological father of
the juvenile.” Ark. Code Ann. § 9-27-303(48).
Here, DHS alleged in its petition that appellant is MC1’s putative father because he
was not married to Ms. Tarkinton at the time of MC1’s birth and had not established
paternity. Ms. Tarkinton confirmed those facts in her testimony at the adjudication hearing.
Therefore, the circuit court properly found that appellant was only a “putative parent for the
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purposes of the Arkansas Juvenile Code as he has presented evidence of significant contact
with the juvenile [MC1].” Given these sufficient findings that appellant was not a “parent”
as defined under the Code, Arkansas Code Annotated section 9-27-327(a)(1)(B) is
inapplicable, and appellant’s argument that he was entitled to the noncustodial-parent
findings under section 9-27-327(a)(1)(B) is without merit. As such, we affirm on this point.
B. DNA Testing
Appellant’s next argument consists of only one sentence and one statutory citation:
“Additionally, since the trial court did not adjudicate Charles to be the father, the trial court
failed to order DNA test results as required under the Arkansas Juvenile Code. Ark. Code
Ann. § 9-27-325(n)(3)(C).” However, appellant again misreads the statute he cites.
Arkansas Code Annotated § 9-27-325(n) provides the following in relevant part:
(n)(1)(A) The department shall make diligent efforts to identify putative parents in a
dependency-neglect proceeding.
....
(2)(A)(i) If the petitioner has named and served a putative parent under this section
and § 9-27-311, the court shall resolve the party status of a putative parent and the
rights of the putative parent as a putative father.
....
(B) The court shall provide a putative parent the opportunity to be heard
regarding his or her efforts in establishing paternity and his or her significant contacts
with regard to the juvenile involved in the dependency-neglect proceedings.
(C)(i) The court may order deoxyribonucleic acid (DNA) testing at any time.
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(ii) A court may establish paternity or determine whether a putative parent is a
parent as defined in § 9-27-303 without a deoxyribonucleic acid (DNA) test being
ordered by the court or performed.
(D) If there is more than one (1) putative parent of the juvenile, the court shall
order a deoxyribonucleic acid (DNA) test of each identified putative parent to
determine the biological parent of the juvenile.
(E) A deoxyribonucleic acid (DNA) test establishing a putative parent as the
biological parent of a juvenile is sufficient evidence on which the court may adjudicate
paternity, establish that the putative parent is a parent for the purposes of this
subchapter, and enter a decree of paternity.
(3) A putative parent has the burden to prove paternity and significant contacts with the
juvenile.
(4)(A) Except as provided under § 9-27-311, a putative parent shall be named as a
party if the circuit court determines that the putative parent:
(i) Has established paternity and the circuit court enters an order establishing the
putative parent as the parent for the purposes of this subchapter and directs that the
parent be added to the case as a party defendant; or
(ii) Has established significant contacts with the juvenile and the circuit court
enters an order that putative parent rights have attached and the putative parent shall
be added to the case as a party defendant.
(B)(i) If the petitioner has named and served a putative parent under this section
and § 9-27-311 and the circuit court finds that the putative parent has established
paternity, the court shall:
(a) Enter an order establishing the putative parent as a parent for the purposes of
this subchapter; and
(b) Maintain the parent as a party defendant.
(ii) If the petitioner has named and served a putative parent under this section
and § 9-27-311 and the circuit court finds that the putative parent has established
significant contacts with the juvenile, the court shall:
(a) Enter an order stating that the rights of the putative parent have attached; and
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(b) Maintain the putative parent as a party defendant.
(Emphasis added.)
Therefore, contrary to appellant’s assertion, the circuit court was not “required” to
order DNA testing under the circumstances presented here. Appellant was identified as the
only putative father to MC1. Although the statute permits the circuit court discretion to
order DNA testing in instances where there is not more than one putative parent identified,
the court was not required to do so as appellant alleges, and it is appellant’s burden to
establish paternity. In this case, appellant did not request or produce any DNA testing at
the adjudication hearing. Instead, the circuit court found that he produced evidence that
he is MC1’s putative father and that he had established “significant contacts” with MC1 in
that MC1 had resided in his home with Ms. Tarkinton for some time. Thus, under these
circumstances, we cannot find that the circuit court’s failure to exercise its discretion to order
DNA testing constituted reversible error under the statute cited by appellant and affirm on
this point.
C. Visitation
Finally, appellant argues that the circuit court erred in failing to award him visitation
with MC1. He cites our holding in Donham v. Arkansas Department of Human Services, 2017
Ark. App. 698, 536 S.W.3d 675, in which we held that the circuit court did not abuse its
discretion by declining to award a mother unsupervised visitation with her child or to set a
visitation schedule. Again, appellant’s argument lacks merit.
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In Donham, the mother had appealed from a permanent-custody order. However,
unlike here, the mother had first raised the visitation issue she argued on appeal at the
permanency-planning hearing. Addressing the merits of her arguments on appeal, we
explained that fixing of visitation rights is a matter that lies within the discretion of the
circuit court, with the primary consideration being the best interest of the child. Id. After
reviewing the evidence presented at the permanency-planning hearing, we held that the
circuit court’s visitation arrangement set forth in the permanent-custody order was not an
abuse of discretion.
Appellant’s citation to Donham is confusing and unavailing under the facts of this
case. Here, appellant failed to even ask the circuit court to grant him visitation with MC1.
Instead, he asked that MC1 be placed with him, which the circuit court granted on a trial
basis once he could “convince” DHS that Ms. Tarkinton was no longer living in the home
and resided elsewhere. He did not request at the hearing that he also be granted any
visitation in the meantime or in the event MC1 could not be placed with him, despite being
given the opportunity to do so. Indeed, after the circuit court announced its oral findings,
appellant was permitted to specifically address the court at his request. At that time, he
requested clarification on Ms. Tarkinton’s visitation—not his own. As such, because
appellant did not request specific findings of fact regarding his visitation, and because he
cites nothing for the proposition that the circuit court was otherwise obligated to expressly
make such a finding, we must affirm on this point. See Chaffin v. Ark. Dep’t of Hum. Servs.,
2015 Ark. App. 522, 471 S.W.3d 251.
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Affirmed.
VIRDEN and BARRETT, JJ., agree.
Dusti Standridge, for appellant.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor children.
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