Harris v. Arkansas Department of Human Services , 2015 Ark. App. LEXIS 587 ( 2015 )

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,
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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.
Cite as 2015 Ark. App. 508
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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