Olivares
v.
Ark. Dep't of Human Servs.

Not overruled or negatively treated on appealinfoCoverage
ARKANSAS COURT OF APPEALS DIVISION IIIFeb 13, 2013
No. CA12-817 (Ark. Ct. App. 2013)
No. CA12-8172013 Ark. App. 94

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No. CA12-817

02-13-2013

APRIL OLIVARES APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN APPELLEES

Deborah R. Sallings, Arkansas Public Defender Commission, for appellant. Tabitha Baertels McNulty, County Legal Operations, for appellee.


APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [No. JV-09-528]


HONORABLE JIM D. SPEARS, JUDGE


AFFIRMED


LARRY D. VAUGHT
, Judge

Appellant April Olivares brings this appeal from the order of the Sebastian County Circuit Court terminating her parental rights to her children. On appeal she argues that the circuit court erred by admitting three court reports that were not proper evidence. Appellee Department of Human Services (DHS) responds that the error was harmless because there was separate, independent evidence to support the circuit court's findings, and as such, Olivares cannot demonstrate prejudice. We affirm the termination.

Although we agree that the circuit court erred when it admitted into evidence hearsay-based reports by DHS, the Court Appointed Special Advocate, and Arkansas Baptist Children's Home, we will not reverse a circuit court's ruling on admissibility of evidence absent a manifest abuse of discretion. Hopkins v. Ark. Dep't of Human Servs., 79 Ark. App. 1, 7, 83 S.W.3d 418, 422 (2002). Further, a mere showing that the trial court erroneously admitted evidence will not support a reversal, absent a showing of prejudice. Dodson v. Allstate

Ins. Co., 345 Ark. 430, 447, 47 S.W.3d 866, 877 (2001). Without any showing of prejudice, any judicial error as to the admissibility of evidence is harmless error and cannot be grounds for disturbing a circuit court's order. Ark. R. Civ. P. 61 (2012); Campbell v. Entergy Ark., Inc., 363 Ark. 132, 137, 211 S.W.3d 500, 504-05 (2005).

Olivares argues that she was prejudiced by the hearsay evidence contained in these reports. Specifically, she claims that the trial court's determination that termination was in the juveniles' best interest was based solely on information contained in these erroneously admitted reports, including information relating to her relationship with a "controlling and abusive husband," her association with known drug users, her inappropriate behavior around her children, and her decision to discontinue taking her prescription medication without approval from her doctor. She claims that each of these pieces of information "had to weigh in the court's best[-]interest determination." While this may be true, the record shows that there was ample additional evidence to support the trial court's finding that termination was proper. The court found that

[Appellant] did complete parenting classes, domestic violence classes, submitted to a psychological evaluation, attended NA meetings and visited the juveniles. She submitted to a drug and alcohol assessment, but did not comply with its recommendations. Although she does have employ[ment], her income is not sufficient. Her housing is not appropriate. She continues to be in a relationship with an abusive partner. She has not completed anger management or counseling. Many of the items that the mother completed on her case plan were not done until December 2011 and January 2012, which was well after the Permanency Planning Hearing. She has regressed from the part of this hearing held on January 23, 2012 to the part held on April 23, 2012.

Independent evidence—her psychological evaluation that was admitted without objection—showed that Olivares was in a relationship with an abusive and controlling husband. In that evaluation, she admitted that her husband was in the country illegally and was arrested for domestic battery. She further stated that he was in jail, with an immigration hold, while an immigration petition was pending. She also testified that her husband was arrested and convicted of physically abusing her and that he was "controlling." During her testimony, she also admitted that—despite his domestic-abuse conviction and failure to attend court-ordered, domestic-violence classes—she did not believe her husband to have violent tendencies.

Olivares also testified at trial that she had not completed the requsite anger-management classes prior to the termination hearing; that she did associate with inappropriate people; that she began using drugs in November 2010 with her client, Davie Hanshaw, and continued to work in Hanshaw's home as a health aid; and that she realized doing so was "risky." Olivares also admitted that she missed counseling for approximately a month and a half during the time the termination decision was held in abeyance.

Where evidence is improperly admitted but the same evidence is admitted through another source, there is no reversible error. See Suggs v. State, 322 Ark. 40, 44, 907 S.W.2d 124, 126 (1995). Here, there is independent evidence (largely gained through Olivares's own testimony) that supports the trial court's finding that termination was in the juveniles' best interest. Without any showing of prejudice, the judicial error as to the admissibility of the hearsay evidence is harmless. Campbell, 363 Ark. at 137, 211 S.W.3d at 504-05.

In its termination order, the court found that Olivares continued to associate with an abusive and controlling husband, failed to complete anger-management classes, and that she failed to complete her case plan prior to the "eleventh hour." The court noted that these were major impediments to reunification, and Olivares's own testimony provided an independent basis for these findings. Therefore, because the circuit court's evidentiary error did not result in prejudice to Olivares, we affirm the court's order terminating Olivares's parental rights to her minor children.

Affirmed.

GLOVER and WHITEAKER, JJ., agree.

Deborah R. Sallings, Arkansas Public Defender Commission, for appellant.

Tabitha Baertels McNulty, County Legal Operations, for appellee.