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Matthews v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

June 3, 2015



Leah Lanford, Arkansas Public Defender Commission, for appellant.

Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.


Becky Matthews appeals the Madison County Circuit Court order adjudicating her infant daughter, A.M., dependent-neglected under the Indian Child Welfare Act ("ICWA"). On appeal, Matthews argues that there is insufficient evidence to support the circuit court's finding. We affirm.

On September 14, 2014, Matthews gave birth to A.M. in Bentonville, Arkansas. At birth, A.M. weighed 5 pounds 6 ounces. On September 18, 2014, Matthews took A.M. to see Dr. Jeffrey Savage for a routine check-up at Harvey Pediatrics Clinic. Dr. Savage noted that since her birth, A.M.'s weight had dropped to 4 pounds 13 ounces. Matthews reported to Dr. Savage that A.M. was having difficulty feeding and that she thought she may be "tongue tied." Dr. Savage observed that A.M. had a short lingual frenulum, so he cut approximately two millimeters of her lingual frenulum. After the procedure, A.M.'s tongue protrusion improved. He scheduled a weight check for September 22, 2014.

On that date, Dr. Savage observed that A.M.'s weight remained unchanged. Matthews reported to Dr. Savage that A.M. was refusing her breast and that A.M. would fall asleep after feeding for five minutes. She further reported that her first child, R.H., was also very small for her age and had difficulty feeding.[1] A nurse counseled Matthews on ways to stimulate A.M. during feeding and gave her a syringe to "finger feed."

On September 25, 2014, Matthews returned to the clinic. She did not see Dr. Savage but informed the medical professional that she continued to experience breast-feeding problems and also noticed white spots on A.M.'s lips and inside her mouth. She also reported that she tried to mix formula with breast milk to help A.M. gain weight. A.M. was diagnosed with thrush and was prescribed Nystatin.

On September 26, 2014, Matthews returned to the clinic with A.M. for a weight check with Dr. Savage. Dr. Savage noted that A.M.'s weight had increased to 4 pounds 14 ounces. He noted that A.M. was still thin but was otherwise active. Matthews reported to Dr. Savage that she continued to have difficulty breast feeding A.M. and that A.M. had begun spitting up after feeding.

On October 1, 2014, Dr. Savage saw A.M. again. He observed that her weight had decreased to 4 pounds 13 ounces. Because A.M. continued to lose weight, Dr. Savage diagnosed A.M. with failure to thrive and admitted her into the intensive care unit ("ICU"). He implemented a feeding schedule, which required Matthews to feed A.M. every three hours, and asked the nursing staff to monitor A.M.'s calorie intake and to observe Matthews's interactions with A.M. Dr. Savage shared his plan with Dr. Bryan Harvey, the on-call physician.

On October 3, 2014, after Dr. Harvey and a medical team had observed A.M. and Matthews for nearly three days, Dr. Harvey determined that A.M. suffered from nutritional neglect due to Matthews's inability to properly feed A.M. He contacted the Arkansas Department of Human Services ("DHS"), and DHS petitioned for emergency custody of A.M. The circuit court held a probable-cause hearing, where it was determined that Matthews and A.M. were members of the Cherokee Nation. Thus, the court found the proceedings were governed by the ICWA. The court also found that probable cause existed for the emergency custody and set an adjudication hearing for November 7, 2014.

At the hearing, Dr. Harvey testified over the telephone that he supervised A.M.'s hospitalization. He stated that A.M. was significantly malnourished when she was admitted to the ICU. He testified that in the ICU, a medical team observed Matthews and A.M. during feedings and documented A.M.'s calorie intake. He testified that A.M. experienced no medical illnesses, but she suffered from calorie deficiency as a result of Matthews not properly feeding her. He stated that he made this diagnosis based on the hospital staff's observations of Matthews's inattentiveness to A.M.'s needs. Specifically, Dr. Harvey testified that they had to wake Matthews to feed A.M. and that Matthews gave A.M. the wrong volume of milk. He also testified that Matthews appeared very lethargic. He stated that he and the medical team tried to work with Matthews, but she did not respond to the help. He testified that the nursing staff eventually assumed care for A.M., and once the nursing staff took over, A.M. began to gain weight. Dr. Harvey testified that once A.M. received the appropriate nutrition, her head circumference increased from the tenth percentile to the twenty-sixth percentile. He explained that malnutrition affects a baby's brain growth, and if an infant suffers six weeks of malnutrition, her brain growth will stop. He testified that he called DHS after diagnosing A.M. with calorie neglect because he believed that A.M.'s development would be hindered if she was returned to Matthews's custody. He noted that Matthews had a genuine attachment to A.M., but he did not believe Matthews was capable of providing the round-the-clock care an infant needed.

Antoinette Johnson, the DHS family-service worker assigned to A.M.'s case, testified that a medical official at Northwest Medical Hospital in Bentonville reported to DHS that A.M. had been diagnosed with failure to thrive and that the hospital had concerns about the infant returning to her mother's custody. She stated that after receiving the call, she went to the hospital and met with Matthews. She testified that she believed Matthews needed psychological services and that A.M. should not return to ...

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