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In Brewer v. Arkansas Department of Human Services, 71 Ark.App. 364, 43 S.W.3d 196 (2001), we upheld the trial court's finding of parental unfitness based on evidence that, even if the mother did not herself cause the child's noticeable injuries, the parent had failed to notice the obvious signs of abuse.
Summary of this case from Raynor v. Ark. Dep't of Human Servs. & Minor ChildOpinion
[71 Ark.App. 365] James G. Petty, Jr., Searcy, for appellant Cheryl Brewer.
J. Leon Johnson, Little Rock, for appellant Marvin Brewer.
Kathy L. Hall, Little Rock, for appellee.
OLLY NEAL, Judge.
Appellants, Cheryl Paslay Brewer and Marvin Brewer, the natural mother and father of Logan Brewer, appeal the order of the Chancery Court of White County finding that Logan is a dependent-neglected child and failing to order reunification services or place Logan in the home of his paternal grandmother, Obera Norman. We affirm in part and reverse in part and remand.
Logan was born to Cheryl and Marvin Brewer on August 26, 1999. On August 27, 1999, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody of the child alleging that he is dependent-neglected as defined by Arkansas Code Annotated § 9-27-303(15) (Supp.1999). DHS based its [71 Ark.App. 366] request for emergency custody on the fact that Cheryl's other child had been previously adjudicated dependent-neglected and no reunification services were ordered. The chancellor granted DHS's petition, and on September 2, 1999, the chancellor found that there was probable cause for emergency custody to continue until the adjudication hearing scheduled for October 7, 1999.
The adjudication hearing recounted the numerous injuries suffered by Logan's nineteen-month-old sibling Makila. Makila was airlifted from Searcy to Arkansas Children's Hospital in Little Rock. When she arrived, she had been placed on a ventilator but remained in danger of death. Makila presented with a low blood count resulting from a large hematoma on her back that was the likely result of a direct blow to the back. A pediatrician at the hospital noted Makila had multiple bruises of different ages and stages covering her body. The pediatrician testified that the child had bruises on the tops of her ears, around her eyes, and along her abdomen, legs, and arms. The child also exhibited two black eyes, tiny rectal tears consistent with sexual abuse, and bruising on her labia majora, the external surface that covers the vaginal opening. Makila also suffered from retinal hemorrhages in both eyes, had liver enzymes three to four times normal levels, and required a blood transfusion and intravenous fluids. Based on these observations, the pediatrician ordered that x-rays, bone scans, and a CT scan be performed on the child.
A radiologist testified that the CT scan revealed bleeding around Makila's brain in the subdural space. The scan revealed fresh bleeding on the left side of the brain and evidence of older bleeding on the right side of the brain indicating repeated trauma. The doctor testified that injuries of the type suffered by Makila were usually only seen in high-speed vehicle accidents and in instances where a child has been shaken. A skeletal survey revealed an old left femur fracture. A later bone scan revealed that both of the child's ulnas had been fractured. The radiologist testified that the fractures were consistent with fractures a child receives from defending herself from direct blows. The child also suffered a fracture of the left scapula and injuries to her rib cage. The radiologist testified that the injuries to the rib cage were consistent to a child being squeezed while being shaken. The injuries to the rib cage were likely suffered within three to five days of the child being admitted into the hospital.
[71 Ark.App. 367] Dr. Melinda Markham testified that Cheryl stated that she was not at home when Makila was picked up by the ambulance, but thought the ambulance was called because Makila might have suffered a seizure. According to Dr. Markham, Cheryl stated that she was aware that Marvin had been spanking the child and hitting her about the head. Dr. Markham also stated that Cheryl indicated that she had spanked Makila. Dr. Markham further testified that Cheryl admitted that Marvin had to restrain her from going after the child on one occasion and that Cheryl told Marvin, "We have to stop," on the way to the hospital.
Based on this testimony and photographs showing Makila's condition when she was admitted into the hospital, the court concluded that Cheryl and Marvin were unfit parents and that Logan was a dependent-neglected child. The court also refused to order reunification services. Appellants argue on appeal that the trial court erred in finding that Logan is a dependent-neglected child based solely on alleged abuse to his sibling. Appellants contend that a finding that a child is dependent-neglected must be based on the treatment of the child at issue. For a second point, appellants argue that the trial court erred in refusing to order reunification services.
The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark.Code Ann. § 9-27-325(h)(2)(B) (Supp.1999). We review a chancellor's findings of fact de novo, and will not set them aside unless they are clearly erroneous, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. Ark. R. Civ. P. 52(a). See also Johnston v. Arkansas Dep't of Human Services, 55 Ark.App. 392, 935 S.W.2d 589 (1996). A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).
A dependent-neglected juvenile is defined as "any juvenile who as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness is at substantial risk of serious harm." Ark.Code Ann. § 9-27-303(15)(A). Arkansas Code Annotated § 9-27-302(2)(B) provides that one of the purposes of [71 Ark.App. 368] the Juvenile Code is "[t]o protect a juvenile by considering the juvenile's health and safety as the paramount concerns in determining whether or not to remove the juvenile from the custody of his parents or custodian...."
Here we have overwhelming evidence that Logan's sister, Makila, was abused by Cheryl or Marvin or both. Even if one of the parents could successfully deflect blame for the actual injuries Makila suffered to the other parent, the uncontroverted testimony establishes that Makila's injuries were noticeable and inflicted over a long period of time. Clearly a parent who does not notice such obvious signs of abuse on a child living within his or her home is unfit.
We do not reach appellant's argument that DHS failed to establish any abuse to Logan. Section 9-27-325(h)(2)(B) explicitly states that a dependent-neglected child is one at risk of serious harm from an unfit parent. Parental unfitness is not necessarily predicated upon the parent causing some direct injury to the child in question. Such a construction of the law would fly in the face of the General Assembly's expressed purpose of protecting dependent-neglected children and making those children's health and safety the juvenile code's paramount concern. To require Logan to suffer the same fate as his older sister before obtaining the protection of the state would be tragic and cruel.
For her second point on appeal Cheryl contends that the court erred in refusing to order reunification services. Marvin does not appeal this portion of the order. Arkansas Code Annotated § 9-27-303(35)(C) (Supp.1999) provides:
Reasonable efforts to reunite a child with his parent or parents shall not be required in all cases. Specifically, reunification shall not be required if a court of competent jurisdiction has determined the parent has:
(i) Subjected the child to aggravated circumstances;
(ii) Committed murder of any child;
(iii) Committed voluntary manslaughter of any child;
(iv) Aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter;
(v) [71 Ark.App. 369] Committed a felony assault that results in serious bodily injury to any child; or (vi) Had the parental rights involuntarily terminated as to a sibling of a child.
Despite the fact that evidence was introduced establishing that the State had begun proceedings to have Cheryl's parental rights terminated with respect to Makila, the lower court concluded it could refuse to order reunification services pursuant to section (v). The court ruled that the statute does not require a circuit court to find Cheryl guilty of felony assault before it could refuse to order reunification services. The trial court concluded that it qualifies as a court of competent jurisdiction and that it could determine that Cheryl Brewer committed felony assault. The trial court erred in this regard.
The Arkansas Constitution grants the circuit courts exclusive jurisdiction over felony charges. Ark. Const. art. 7, § 11. See also State v. Pulaski County Circuit Court, 326 Ark. 886, 934 S.W.2d 915 (1996). When the statute at issue states that a court of competent jurisdiction has determined that a parent has committed a felony assault, it contemplates a circuit court making such a determination.
This conclusion is supported by an analogous situation faced by our supreme court in In the Matter of Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995). In that case, the mother of a child filed a petition with the probate court for appointment of an administrator and a petition for paternity, claiming her child was the illegitimate daughter of the deceased. The mother filed the petitions for the sole purpose of entitling the child to whatever military and other government benefits she would be entitled to as a result of the deceased being her natural father. In Arkansas, probate courts have jurisdiction over the administration, settlement, and distribution of estates of decedents and the determination of heirship. Ark.Code Ann. § 28-1-204 (1987). Chancery courts, however, have concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity. Ark.Code Ann. § 9-10-101 (Repl.1998); Ark.Code Ann. § 16-13-304(b)(9) (Repl.1999); Ark. Const. amend. 67. The code further provides that an illegitimate child may inherit property form her father in certain circumstances. Ark.Code Ann. § 28-9-209 (1987). One of those circumstances is that a court of competent jurisdiction has established the paternity of the child. Id. In In the Matter of Estate of F.C., supra, the supreme court determined that Ark.Code Ann. § 28-9-209 clearly contemplates that even where the illegitimate child is attempting to inherit property from her father, the probate court cannot establish paternity-a court of competent jurisdiction must do so. (Emphasis supplied.)
The single area of the law that provides some support for the trial court's ruling that it could determine Cheryl committed felony assault are holdings where the courts have refused to allow a beneficiary of a life insurance policy to recover benefits where the beneficiary wrongfully caused the death of the insured. In the seminal case, Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 138, 135 S.W. 836, 839 (1911), our supreme court stated, "The willful, unlawful, and felonious killing of the assured by the person named as beneficiary in a life policy forfeits all rights of such person therein." In Horn v. Cole, Administrator, 203 Ark. 361, 156 S.W.2d 787 (1941), our supreme court ruled that a circuit court's judgment acquitting a beneficiary of murder is not a bar to a chancery court determining the beneficiary wrongfully or unlawfully killed the deceased.
Although Horn appears to stand for the proposition that a chancery court can determine whether a beneficiary to an insurance policy has murdered the insured, the present situation is distinguishable. Specifically, there is a difference in what the trial court must determine under the respective laws. With respect to the insurance cases the trial court must determine whether the beneficiary wrongfully or unlawfully killed the deceases--a finding that is akin to a civil wrongful death action. With respect to the instant case, however, a court of competent jurisdiction must determine that the parent committed felony assault and caused injury to any child. The inclusion of the word "felony" implies that a court of competent jurisdiction must determine that a crime has been committed, and such determinations are reserved to the circuit court. Therefore, we reverse and remand to the chancery court for further findings not inconsistent with Arkansas Code Annotated § 9-27-303(35)(C) and this opinion.
For their final point on appeal, Cheryl and Marvin argue that the lower court erred in failing to place Logan in the home of his paternal grandmother, Obera Norman. At the hearing, appellants [71 Ark.App. 371] requested that Logan be placed with his paternal grandmother based on a DHS home study concluding that Norman's home would be the most stable environment for Logan. A DHS representative, however, indicated that she had concerns about placing Logan in Norman's home. Specifically, the representative was concerned that Norman did not believe Cheryl and Marvin had abused Makila. The DHS representative did not think Norman would properly protect Logan from his parents.
At the hearing Norman testified that if she were ordered to do so, she would not allow her son and Cheryl to visit with Logan. Norman further indicated, however, that she was of the opinion that Marvin and Cheryl would not hurt their children. She testified that she believed Makila got her injuries while Marvin was attempting to perform CPR.
Giving due regard to the trial court's ability to determine the credibility, we cannot conclude that the trial court erred in determining that Logan would not be safe with his paternal grandmother. In the face of overwhelming medical testimony listing Makila's injuries, that Norman would think those injuries were suffered during a session of CPR is sufficient reason to think Norman would not protect Logan from Cheryl and Marvin.
Affirmed in part and reversed in part and remanded.
ROBBINS, C.J., and BIRD, J., agree.