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Newman v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

April 13, 2016

BROOKE NEWMAN AND BRENT NEWMAN, APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD, APPELLEES

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT. NO. JV-13-312. HONORABLE ANNIE HENDRICKS, JUDGE.

         For Appellant: Robert L. Depper III.

         For Appellee: Mischa Kay Martin, Robert D. Kelly.

         Keith L. Chrestman, Attorney Ad Litem.

         LARRY D. VAUGHT, Judge. ABRAMSON and GRUBER, JJ., agree.

          OPINION

          LARRY D. VAUGHT, Judge

         Appellants Brooke and Brent Newman appeal from the orders entered by the Circuit Court of Sebastian County terminating their parental rights to their son C.N. (a member of the Cherokee Nation[1] who was born on July 7, 2012) and denying their posthearing motion to set aside the termination decision or for new trial. The Newmans raise three issues on appeal. They first argue that the trial court abused its discretion in denying their motion to dismiss the termination petition because appellee, the Arkansas Department of Human Services (DHS), filed the petition outside the fifteen-month timeline required by Arkansas Code Annotated section 9-27-359(c) (Repl. 2015). Second, they argue the trial court clearly erred in finding that clear and convincing evidence supported the termination decision. And finally, they argue that the trial court abused its discretion in denying their motion to set aside the termination decision or for new trial based on the trial court's failure to enter a timely termination order as required by Arkansas Code Annotated section 9-27-341(e). We affirm.

         On May 19, 2013, DHS obtained a 72-hour hold on C.N. after medical professionals reported to police that he had a one-week-old broken arm and that the Newmans failed to provide a sufficient account as to how the injury was caused or why they delayed in seeking medical treatment. DHS filed a petition for emergency custody on May 28, 2013, which was granted that same day. Following an adjudication hearing, an order finding C.N. dependent-neglected was entered on September 10, 2013. In the adjudication order, the court credited the testimony of Dr. Chris Bell and registered nurse Jeanne Losurdo, who testified that the Newmans allowed C.N. to suffer through significant pain for several days before seeking medical attention for him and that C.N. would not have been pain free and using his broken arm in the manner described by the Newmans. The trial court also noted evidence of domestic violence, much of which occurred in the presence of C.N.; violation of no-contact orders and orders of protection; lying to police officers; the Newmans' volatile relationship; and Brent's criminal history involving assault and battery of household members. The court set the goal for the case as reunification and ordered the Newmans to visit C.N.; attend marriage counseling; obtain and maintain stable housing, employment, and transportation; remain drug and alcohol free; submit to random drug testing; undergo drug-and-alcohol assessments; and submit to psychological evaluations. Brent was ordered to complete a domestic-violence course.

         A permanency-planning hearing was held on April 30, 2014, wherein the court found that it was not in C.N.'s best interest to return to the custody of his parents because it would place him at risk of harm. The trial court also found that concurrent goals of reunification and adoption were appropriate.

         A fifteen-month review hearing was held August 24, 2014. While the trial court found that the Newmans had completed many of the requirements of their case plan, it further found that C.N. was in need of DHS services and that returning him to the custody of his parents was contrary to his welfare. The trial court noted that the representative of the Cherokee Nation and C.N.'s attorney ad litem agreed that C.N. should not be returned to the Newmans at that time. The court also pointed out that DHS had expressed an intent to file a petition to terminate the Newmans' parental rights to C.N. The trial court continued the concurrent goals of reunification and adoption.

         On January 12, 2015, DHS filed a petition to terminate the Newmans' parental rights, alleging three grounds: (1) the failure-to-remedy ground pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)( a ); (2) the subsequent-factors ground pursuant to section 9-27-341(b)(3)(B)(vii)( a ); and (3) the aggravated-circumstances ground pursuant to section 9-27-341(b)(3)(B)(ix)( a )( 3 )( A ).

         The termination hearing was held on March 13, 2015. Brent Newman testified his relationship with Brooke was great, although he conceded that they had gone through some " rocky points" in the past and that they both " ha[d] tempers." He admitted that he had been convicted of battering Brooke, that she had called the police " quite a few times" accusing him of mistreating her, and that he had been arrested three times following Brooke's calls to the police. He described two of his arrests. One arrest occurred after he and Brooke used a baseball bat to destroy each other's belongings. Another occurred on Christmas Eve 2014. He said that he had been asleep when he was told that someone was knocking at his door and looking into the window. He opened the door, identified himself to the officer as " Puddin Tane," and turned around to go back into his apartment. He said that the officer assaulted him, grabbing him from behind and ripping his shirt. Brent denied drinking alcohol that night.

         As for the incident that gave rise to DHS's custody of C.N., Brent testified that he did not cause C.N.'s arm injury. However, he stated that approximately one week before they took C.N. to the doctor, he (Brent) rolled over on the floor to get up, and his " knee was on" C.N.'s arm.

         Brent conceded that he was an alcoholic and had a problem with methamphetamine; however, he added that he last drank alcohol and used meth in October 2014. He further testified that he had maintained housing for the past year and had maintained employment for the past two years. He stated that he attended domestic-violence classes, regularly attended AA/NA meetings, completed drug-and-alcohol assessments, attended individual and marriage counseling, had a ...


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