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Martin v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

November 2, 2016



          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          DAVID M. GLOVER, Judge

         The Lawrence County Circuit Court terminated Brandon Martin's parental rights to his three children, daughter B.D., born March 23, 2012, son J.M., born December 26, 2013, and daughter A.M., born November 7, 2014.[1] Brandon now appeals the termination, arguing that the circuit court erred in finding the Arkansas Department of Human Services (DHS) proved the grounds alleged in the termination petition by clear and convincing evidence, that the termination decision was based on a mistake of fact that the juveniles were adjudicated dependent-neglected as a result of abuse, and that the termination was not in the best interest of the children. We affirm the trial court's decision.

         This case began on October 20, 2014, when DHS filed a petition for emergency custody of B.D. and J.M.[2] A seventy-two-hour hold was taken on both children on October 17, 2014, after the Martins had taken J.M. to the hospital on October 16 based on concerns of an injury to his left leg. According to affidavits, J.M. was taken to LeBonheur Hospital, where a report was made to the child-abuse hotline for suspected physical abuse because nine-month-old J.M. had a traverse fracture of the left femur, and the explanation for the broken bone did not fit with the injury. A safety assessment was to be performed on the Martin home prior to J.M. returning home; it was then that the investigator noticed bruising on B.D.'s face and discovered that her feet had been burned. The investigator observed B.D.'s wrapped feet, the fact that the gauze was yellowish and had a strong odor emanating from it, and that B.D. began to cry in pain when her grandfather attempted to unwrap her feet. Megan explained B.D.'s injuries by saying B.D. sat in front of a space heater for too long and burned her feet; Megan said she put B.D.'s feet in cold water, put gel on them, and wrapped her feet. However, an examination revealed B.D.'s feet had red, peeling, burned skin, not only all over her feet, but also up to her ankles; her big toes had no skin on the bottom of them; and her injuries appeared to be immersion burns. The burns were determined to be second-degree burns; B.D. was transferred to Arkansas Children's Hospital (Children's), where she underwent surgery for the injuries to her feet. In addition to the black bruise on her face, there was a knot on the top left side of B.D.'s forehead, as well as scratches on her neck and arms and more bruising on her back and left side. An ex parte order for emergency custody and a probable-cause order were both entered on October 21.

         On November 13, 2014, DHS filed a petition for emergency custody and dependency-neglect for A.M., who was born November 7, 2014, based on the alleged physical abuse to B.D. and J.M. An ex parte order granting DHS emergency custody of A.M. was filed on November 17, 2014, and a probable-cause order as to A.M. was filed on November 18.

         The adjudication hearing was continued until January 20, 2015, and then again until February 10; even though the adjudication hearing was held on February 10, the order adjudicating the children dependent-neglected was not filed until August 27, 2015. In the adjudication order, the Martins stipulated that B.D., by a preponderance of the evidence, was a dependent-neglected juvenile, and the trial court found that J.M. and A.M. were also dependent-neglected juveniles because of B.D.'s adjudication. The goal of the case was reunification.

         A review hearing was held on May 12, 2015; the goal of the case remained reunification, and the trial court found DHS had made reasonable efforts to provide family services. The trial court ordered visitation to be at the discretion of DHS; as to Brandon, visitation could include every-other-weekend visits, with one-hour visitation during the off weeks, with attorney ad litem approval, so long as drug screens were negative prior to visitation. Brandon was also prohibited from allowing Megan to have contact with the children. On May 15, 2015, an emergency motion to modify visitation was filed by DHS, asserting that Brandon had been given unsupervised visitation based on his testimony that he and Megan were separated and he would not allow her to have access to the children; however, the Martins were seen together in Brandon's car on May 14.[3]

          On August 17, 2015, DHS filed a petition to terminate the Martins' parental rights. DHS alleged five grounds for termination with respect to Brandon-Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Repl. 2015) (the court has adjudicated the juvenile dependent-neglected and the juvenile has continued to be out of the custody of the parent for twelve months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent); Arkansas Code Annotated section 9-27-341(b)(3)(B)(ii)(a) (the juvenile has lived outside the home of a parent for a period of twelve months, and the parent has willfully failed to provide significant material support in accordance with the parent's means); Arkansas Code Annotated section 9-27-341(b)(3)(B)(vi)(a) (the court has found the juveniles or a sibling dependent-neglected as a result of abuse that could endanger the life of the child, which was perpetrated by the juveniles' parent); Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare, and that, despite the offer of appropriate services, the parent manifested the incapacity or indifference to remedy the subsequent issuess or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent; and Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3) (the parent has subjected the juveniles to aggravated circumstances). In an order filed March 20, 2016, the trial court found it was in the children's best interest to terminate Brandon's parental rights and terminated his parental rights on the "twelve months, failure to remedy" ground, the ground finding the children dependent-neglected as a result of abuse that could endanger the lives of the children, and the "other factors" ground.

         At the termination hearing, Brandon testified that his divorce from Megan was finalized "a couple of hours" before the termination hearing; he said it took so long because he wanted to see what happened in the criminal proceedings against Megan and in the termination proceedings. He stated that at first, he did not have concerns about whether Megan had injured the children, but because the court had found her guilty, he believed it; however, Brandon changed his testimony, saying he still did not know whether his ex-wife had done this to the children. When pressed further about why he did not know whether Megan had burned B.D.'s feet, Brandon replied he honestly did not know, even after acknowledging he heard a doctor testify about B.D.'s burns. Brandon also could not remember if he had asked how J.M.'s leg had been broken.

         Brandon testified that if his children were returned to him, his mother would assist him with the children; however, she was not present at the termination hearing, although she had been at the divorce hearing just a few hours before the termination hearing. He said that if his mother could not help, his sister would, but he admitted he had not been to her house in more than a year. He testified he had called daycare centers, but he had nothing set up yet for the children. Brandon stated that while he saw the children on a regular basis, he had not seen B.D.'s feet since they had been burned, he had only asked once how her feet were, and he did not know if B.D. was walking.

          On cross-examination, Brandon stated that while he only recently filed for divorce on November 13, he and Megan separated on May 9. He said the only contact he had with Megan since they had separated was during visitation (which was scheduled jointly by DHS) and attorney visits when they used the same attorney. He said he accepted the finding of Megan's guilt in harming their children, and while the safety of the children would be of concern to him if they were to be around her after she is released from prison, he would not allow her to be around them. He explained the reason he waited from the May separation to November to file for divorce was that they were talking about what to do and kept ...

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