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Tapp v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Divisions I, II

April 5, 2017



          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 child.

          WAYMOND M. BROWN, Judge

         Appellant appeals from the circuit court's adjudication of M.H., born 8/14/2001, as dependent-neglected by appellant. Appellant's sole argument on appeal is that there was insufficient evidence to support the circuit court's finding of dependency-neglect of M.H. by appellant. We affirm.

         The Arkansas Department of Human Services (DHS) received a call for DHS assistance with Larry Tapp, son of appellant, on May 26, 2016.[1] A family-services worker went to the home where she was advised by M.H. that M.H. and her sixteen-year-old boyfriend were living together in Larry's home; that appellant, her grandmother, knew her boyfriend was living there; that there had been an altercation in which Larry "grabbed her by the back of the neck" and pushed her head into "the back of a door causing injury to her forehead" after Larry came home and "got mad" because she had not "made any drinks";[2] that Larry used marijuana and had offered marijuana to her, smoking it with her once; that they were sleeping on an air mattress on the living room floor; and that she did not think the house was fit to live in. The family-services worker interviewed appellant, who advised that she has custody of M.H., which she has had since M.H. was seven years old; had not gone to check Larry's house-had "never been"-because she and Larry do not "get along" and so she does not go to his house; did not know the condition of Larry's home; and suspected that Larry was doing drugs, but allowed M.H. to go there because "she [could not] do anything about it." She denied knowing that M.H.'s boyfriend was living in the home.

         Finding the home "cluttered, " "dirty, " and "littered, " among other things, and citing health and safety concerns for M.H. stemming from her boyfriend living in the home, appellant's failure to go to the home to check its appropriateness, and reported drug use by Larry, the family-services worker took a seventy-two-hour hold on M.H. on May 26, 2016. DHS filed its petition for emergency custody and dependency-neglect against M.H.'s mother and appellant, as her custodian, on May 31, 2016. The circuit court entered its ex parte order for emergency custody on the same date.

         A probable-cause hearing was held on June 7, 2016, and in its June 29, 2016 order, the circuit court found that probable cause existed for M.H.'s removal "specifically, due [to] the custodian/grandmother allowing the juvenile to stay in a home that was not a suitable environment because of the environmental conditions and being allowed to have inappropriate contact with her sixteen-year-old boyfriend, as well as being in the presence of domestic violence in the home of the putative father Larry Tapp[.]" It also found that there was probable cause that the emergency conditions that necessitated M.H.'s removal continued so that M.H. would remain in the custody of DHS. The circuit court specifically stated that this finding was "due to failure of the custodian to protect the child, and the conditions of the home of the putative father, including violence in the home." Appellant was thereby ordered to attend parenting classes, obtain and maintain safe, stable, and appropriate housing, and keep DHS apprised of her current contact information.

         Following an August 3, 2016 hearing, the circuit court entered its adjudication order on September 23, 2016, in which it adjudicated M.H. dependent-neglected by virtue of being "at substantial risk of serious harm as a result of neglect perpetrated by [appellant], her custodian." With regard to appellant, the circuit court specifically found that she "failed to take action to protect [M.H.] from abuse and neglect by Larry Tapp"; and "failed to provide [M.H.] with shelter that did not pose a risk to her health and safety and failed to appropriately supervise [M.H.], permitting [M.H.] to be in circumstances at the home of Larry Tapp that were dangerous and put [M.H.] at risk of harm." The order went on to state:

The Court finds that Wilma Tapp has been the legal custodian of [M.H.] for the past seven years and that [M.H.] has been living with her. Wilma Tapp testified that she was moving from an apartment to a house that she was building on some land adjacent to a relative's home and that during the moving process, she permitted [M.H.'s] 16 year old boyfriend to stay at the apartment. Further, she testified that she knew that the boyfriend was staying with [M.H.] at Larry Tapp's home because she talked to [M.H.] daily and [M.H.] told her that the boyfriend was staying in the home. Wilma Tapp testified that she knew about Larry Tapp's history of drug use and that she never entered the home where she allowed [M.H.] to stay with Larry Tapp. The Court finds that the conditions of the home were reprehensible and unlivable and that Wilma Tapp does not currently have a home that is appropriate for [M.H.] to reside in.

         The goal of the case was reunification, and appellant was ordered to obtain and maintain stable and appropriate housing, complete intensive parenting classes, have a psychological evaluation, complete any counseling recommended from the evaluation, and otherwise follow the case plan. This timely notice of appeal followed.[3]

         Adjudication hearings are held to determine whether the allegations in a dependency-neglect petition are substantiated by the proof.[4] The DHS has the burden of proving that the children are dependent-neglected by a preponderance of the evidence.[5] The focus of an adjudication hearing is on the child, not the parent; at this stage of a proceeding, the juvenile code is concerned with whether the child is dependent-neglected.[6]

          The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings.[7] We review the circuit court's findings of fact de novo and will not set them aside unless they are clearly erroneous.[8] A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed.[9] With regard to testimonial evidence, the appellate court gives a high degree of deference to the circuit court, which is in a far superior position to observe the parties before it, and we defer to the trial judge's evaluation of the credibility of witnesses.[10] Consequently, unless determined to be clearly erroneous, a trial court's finding will be left undisturbed on appeal.[11]

         Appellant argues on appeal that there was insufficient evidence to support the circuit court's finding of dependency-neglect of M.H. by appellant. In support of this argument, appellant specifically states that while she had custody of M.H., M.H. was visiting Larry at the time DHS became involved, and DHS had had no prior involvement with appellant before this incident. Appellant essentially argues that because the issues giving rise to M.H.'s removal occurred in Larry's home, M.H.'s adjudication as dependent-neglected should not have been attributed to her. Additionally, she argues that DHS failed to prove that Larry hit M.H. or that he used drugs and only proved that Larry's home was dirty and that M.H.'s boyfriend stayed overnight in the home, which she argues is insufficient. This court disagrees.

         "Custodian" means a person other than a parent or legal guardian who stands in loco parentis to the juvenile or a person, agency, or institution to whom a court of competent jurisdiction has given custody of a juvenile by court order.[12] "Dependent-neglected juvenile" means any juvenile who is at substantial risk of serious harm as a result of neglect or omissions to the juvenile.[13] "Neglect, " in part applicable to this argument, means those acts or omissions of the custodian that constitute failure to take reasonable action to protect the juvenile from abuse or neglect when the existence of this condition was known or should have been known;[14] failure to provide for the juvenile's care and maintenance, proper or necessary support, or medical, surgical, or other necessary care, [15] failure, although able, to assume responsibility for the care and custody of the juvenile or to participate in a plan to assume the responsibility;[16] and failure to appropriately supervise the juvenile that results in the juvenile being placed in inappropriate circumstances, creating a dangerous situation or a situation that puts the juvenile at risk of harm.[17] [18] "The statutory definition of a neglected child does not require proof of actual harm or impairment having been experienced by the child.[19] The term 'substantial risk' speaks in terms of future harm."[20]

         Even if this court accepts appellant's argument that DHS failed to prove that Larry abused M.H. or that Larry used drugs-and it makes no finding either way-this court finds that the circuit court did not err in adjudicating M.H. dependent-neglected by appellant as the facts support its oral finding that the "conditions of the house [were] just absolutely unlivable." The home in which M.H. was visiting was not simply "dirty" as stated by appellant. The investigator's affidavit and testimony at the hearing, the family-service worker's testimony at the hearing, and photographs show that the only bed in the home was not being used as it was littered with toys and clothing; dishes, trash, clothing and boxes cluttered the home; electrical cords and wiring-"exposed" and "none of it insulated"- ran through various parts of the living room; access to bedrooms was blocked by "piles of debris that you had to climb" to obtain entry; "weeds [were] growing through the walls in the baseboard of the house"; the counter, stove, and floors were "littered with trash, grease and dirt"; and the bathroom had "no ceiling"-for it had "collapsed"-with wires and insulation "hanging down and running through the bathroom[, ]" including the "top of the showers." Appellant knew none of this, despite allowing M.H. to visit this home, because she had "never" been to the home.[21] Furthermore, despite having never been in the home, appellant testified that this was not the first time M.H. was in Larry's home for "[M.H. has] been out there before" and appellant "never [had] any concerns with letting her go visit."

         Though, as testified to by the family-services worker, there was no document or order explicitly stating that appellant could not allow M.H. to visit with Larry, that does not abdicate appellant of the responsibility to ensure that the environment in which the visit occurs is appropriate for M.H. [22] Appellant knows this, for she testified that "[i]t is [her] responsibility, as a guardian of [her] grandchild, to be sure she's living or sleeping in a safe environment." As the custodian of M.H., appellant is responsible for her care, whether with her or not; appellant failed. The circuit court's adjudication order specifically states "that [appellant] failed to take action to protect [M.H.] from abuse and neglect by Larry Tapp."[23]This court cannot find that the circuit court clearly erred.

         Appellant also argues that insufficient evidence supported the circuit court's finding that appellant failed to provide M.H. with adequate shelter. This argument relies mainly on the fact that appellant had "suitable" government-assisted housing at the time the hold was taken on M.H. Such an argument ignores the fact that the statute requires proof of the allegations in the petition at the time of the adjudication hearing and at no point earlier.[24]

         "Neglect, " in part applicable to this argument, means those acts or omissions of custodian that constitute failure or refusal to provide the necessary shelter for the juvenile's well-being with one exception that is inapplicable here, [25] and failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile, including failure to provide a shelter that does not pose a risk to the health or safety of the juvenile.[26] At the time of the adjudication hearing, appellant was not ready to take M.H. into her home as she was living is a one-room building-"basically a storage building" that was being converted into a residence-that was "not hooked up" to water, sewage lines, or electricity; had no plumbing; and was "not finished on the inside." She was "diligently working to get her home up and going." Appellant testified that she went to her grandson's home next door "to use the facilities and sleep" and that she would have her home "fixed-up soon." If M.H. were allowed to come home, they would stay with appellant's sister until her home was ready, according to appellant's testimony, but she was "not currently" living with her sister. Appellant let M.H. stay with Larry because "that's what she wanted to do" despite appellant's suspicion that M.H. wanted to stay there with her boyfriend, who she admitted she "knew was there" at Larry's home.[27] Again, this court finds no error.

         Because this court finds sufficient evidence to support adjudication of M.H. as dependent-neglected by appellant on account of her failure to properly supervise and investigate the home of Larry, which she allowed M.H. to visit regularly, and failure to provide adequate shelter for M.H., this court need not-and does not-address the merits of whether DHS proved that Larry abused M.H., whether Larry used drugs, or whether M.H.'s boyfriend being permitted to spend the night should have been a factor in determining whether M.H. was dependent-neglected.

         Finally, appellant argues alternatively that if the evidence supports the finding that M.H. was dependent-neglected, the evidence was not sufficient to support the finding that M.H. should have been removed and placed in foster care. While appellant makes this statement in a conclusory manner that this court is not required to address, [28] she failed to raise this argument below.[29] Accordingly, this argument is not preserved for this court's review.


          Abramson, Klappenbach, and Vaught, JJ., agree.

          Glover and Hixson, JJ., dissent.

          David M. Glover, Judge, dissenting.

         I respectfully dissent from the majority opinion in this case because I was left with a definite and firm conviction the trial court made a mistake in finding that Wilma Tapp's granddaughter, M.H., was dependent-neglected. I would therefore reverse.

         The facts of this case are not in dispute - just whether those facts add up to dependency-neglect. Larry Tapp is M.H.'s putative father, and Wilma is Larry's mother. M.H. has lived with Wilma since M.H. was two years old. Wilma has had custody of M.H. since M.H. was seven years old. When DHS took her into emergency custody, M.H. was fourteen, almost fifteen.

         Wilma acknowledged allowing M.H. to go to Larry's house to see M.H.'s much younger halfsiblings. M.H. was apparently there three days and two nights prior to DHS involvement. Wilma also acknowledged an awareness that M.H.'s boyfriend went to Larry's as well, but she said he was supposed to go home at night. When Wilma found out he had spent the night, she demanded he go home. Though she suspected Larry had a marijuana problem, she stated there had never been any incidents when M.H. was there. It is important to note that in the twelve years prior to this episode, DHS had no involvement with M.H. and Wilma. There was no proof Wilma's living conditions were unsuitable at the time M.H. was taken. At the time of the adjudication hearing, however, Wilma acknowledged she was in the midst of turning two storage units, connected by another addition, into a house. Her new house under construction is adjacent to another of her son's and grandson's homes. Her testimony was that her new house was not yet fit for her or M.H. to live in, but she and M.H. could live with either her other son, her grandson, or her sister, Wanda, until she finished construction. Her sister, Wanda, corroborated her testimony. The photos support the notion that Larry's house was unfit to live in, but again, M.H. was only visiting Larry-she lived with Wilma, who is the person who had custody of M.H.

         Arkansas Code Annotated section 9-27-303(18)(A)(Repl. 2015) defines a "dependent-neglected juvenile as

[A]ny juvenile who is at substantial risk of serious harm as a result of the following acts or omissions to the juvenile, a sibling, or another juvenile:
(i) Abandonment;
(ii) ...

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