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Martin v. Arkansas Department of Human Services

Supreme Court of Arkansas

April 6, 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 children.

          JOHN DAN KEMP, Chief Justice

         Appellant Brandon Martin appeals an order of the Lawrence County Circuit Court terminating his parental rights to his three children, B.D., J.M., and A.M., pursuant to Arkansas Code Annotated section 9-27-341 (Supp. 2013).[1] For reversal, Brandon contends that the circuit court erred in finding (1) that appellee Arkansas Department of Human Services (DHS) proved the grounds alleged in the petition by clear and convincing evidence and (2) that termination was in the best interest of the children. He further contends that the termination decision must be reversed because it was based on a mistake of fact that the juveniles had been adjudicated dependent-neglected as a result of abuse. We affirm.

         I. Factual and Procedural Background

         On October 20, 2014, DHS filed a petition for emergency custody of B.D., born March 23, 2012, and J.M., born December 26, 2013. 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 about an injury to his left leg. According to affidavits, the Martins sought treatment for J.M. at Le Bonheur Hospital, where it was determined that J.M. had suffered a traverse fracture to the left femur. A report was made to the child-abuse hotline for suspected physical abuse because explanations for the broken bone were inconsistent and unconvincing. An investigator learned that J.M. had a two-year-old sibling, B.D., and went to the grandparents' home where B.D. was staying. While there, the investigator discovered that B.D.'s feet had been burned. The investigator observed "thickly wrapped gauze" on B.D.'s feet and noted that the gauze was yellowish and had a strong odor emanating from it. The investigator also observed that B.D. began to cry in pain when her grandfather attempted to unwrap her feet. Meanwhile, Megan and Brandon appeared at the grandparents' home, and Megan claimed that B.D.'s feet were burned because she had been sitting in front of a space heater for too long. Megan said that she put B.D. in cold water to cool her feet off; then, she put gel on B.D.'s feet and wrapped them. The investigator noted that B.D. had "red, peeling, burnt skin going all the way around her feet and up to her ankles, " that the "bottom of her big toes did not have any skin at all, " and that the "sides of her feet were also peeling." The investigator believed the burns were caused by immersion. B.D. also had bruising on her face, back, and left side, a knot on the top left side of her forehead, and scratches on her neck and arms. B.D. was transferred to Arkansas Children's Hospital, where she underwent surgery for the injuries to her feet. An ex parte order for emergency custody and a probable-cause order were entered on October 21.

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

         Following continuances, an adjudication hearing was held on February 10, 2015. In the adjudication order, [2] the circuit court accepted the Martins' stipulation that B.D., by a preponderance of the evidence, was a dependent-neglected child because of inadequate supervision by the parents. The circuit court found that J.M. and A.M. were also dependent-neglected juveniles based on their sibling's status as a dependent-neglected juvenile. The Martins were given supervised visitation with B.D. and J.M. once per week for one hour and supervised visitation with A.M. once per month for one hour. The circuit court found that DHS had made reasonable efforts to prevent the removal of the children. The goal of the case was reunification.

         A review hearing was held on May 12, 2015. The goal of the case continued to be reunification, and the circuit court found that DHS had made reasonable efforts to provide family services. The circuit court permitted Brandon to have unsupervised visitation with the children every other weekend but prohibited Brandon from allowing Megan to have contact with the children during his visitation.

         On May 15, DHS filed an emergency motion to modify visitation and requested that Brandon's visitation be restricted to weekly supervised visits. In the motion, DHS alleged that, on May 12, Brandon had been given unsupervised visitation based on his testimony that he and Megan were separated and that he would not allow Megan to have contact with the children, but the Martins were seen together in Brandon's car on May 14. DHS further alleged, "Brandon and Megan Martin continue to have contact. Any appearance of separation is solely for the purpose [of] Mr. Martin being in a better position to regain custody of the children." DHS requested that Brandon's visitation be restricted to weekly supervised visits. Brandon responded and admitted that he continued to have contact with Megan, but he stated that he would not allow contact between Megan and his children at any time while he was exercising visitation.

         On August 17, 2015, DHS filed a petition to terminate the Martins' parental rights and alleged multiple grounds against each parent, including the failure-to-remedy ground; failure-to-provide-significant-support-ground; adjudicated-as-a-result-of-abuse-that-could endanger-the-child's-life ground; subsequent-factors ground; substantial-period-of-incarceration-ground; and the aggravated-circumstances ground. See Ark. Code Ann. §§ 9-27-341(b)(3)(B)(i)(a), (ii)(a), (vi)(a); (vii)(a), and (ix)(a)(3). DHS alleged that Megan had been charged with a felony for causing B.D.'s injuries and that the case was still pending; that Brandon had failed to separate himself from Megan; that Brandon had been given the opportunity to have unsupervised visitation with his children, but that opportunity ceased when he continued to have contact with Megan; and that he had chosen his children's abuser over his children. Brandon responded and denied that DHS had established any ground for termination. Specifically, he denied that DHS had made meaningful efforts to rehabilitate and correct the conditions that caused removal. He denied that he had failed to separate himself from Megan, and he denied that his choosing Megan over the children prevented placement with him.

         On January 19, 2016, the circuit court held a termination hearing. Brandon testified that his divorce from Megan had been finalized "a couple of hours" before the hearing. When asked why it had taken so long to obtain a divorce, Brandon testified that he wanted to see what happened in the termination proceedings and in the criminal proceedings against Megan. Brandon stated that, at first, he did not think that Megan had caused the children's injuries, but because the court had found her guilty, he believed Megan had harmed the children. Later, he changed his testimony and said that he still did not know whether Megan had harmed the children. He said that he did not go to court for Megan's plea, that he did not know whether she had admitted guilt, that he did not know the length of Megan's sentence to prison, and that he did not know her expected release date. Brandon acknowledged that Megan was the only adult present when B.D.'s injuries occurred, but when he was asked whether Megan had burned B.D.'s feet, he answered that he honestly did not know. Brandon testified that he had listened to medical testimony about B.D.'s burns, but he could not remember what was said. He also testified that he could not remember if he had asked how J.M.'s leg had been broken.

         Brandon testified that his mother would assist him with the children if they were returned to him. He acknowledged that his mother was not present at the termination hearing, although she had been at the divorce hearing earlier that day. Brandon stated that if his mother could not help him, his sister would, but he admitted that he had not been to his sister's house in over a year. He testified that he had called Kidsney Zone and some other daycare centers, but he had nothing set up yet for the children "because they had to fill the positions." Brandon said that he remembered signing a case plan and discussing services, such as vouchers for daycare, but that he did not apply for vouchers because "they never gave me anything in paperwork."

         On cross-examination, Brandon stated that, although he did not file for divorce until November 13, he and Megan separated on May 9. He admitted that he did not inform DHS of the date of separation. He testified that the only contact he had with Megan since they had separated was during joint visitation, which was scheduled by DHS, and during attorney visits when they were represented by the same attorney. Brandon testified that he accepted the finding of Megan's guilt in harming their children and that he would not allow Megan to be around the children when she is released from prison. He also testified that if his children were injured, he would take them to the doctor.

         On redirect, Brandon said that he found out B.D.'s feet were burned only after Megan had called him and told him; he then brought bandages home and returned to work. He said that he could not remember how long B.D. had the burns before they took her to the hospital. He said that B.D.'s injuries were not "that bad when it first happen[ed], " but he admitted that he never looked at B.D.'s feet. He said that when he saw B.D.'s bandaged feet, he wondered what had happened. Brandon said that he did not talk to doctors about B.D.'s burns because DHS asked him to leave the hospital.

         Cassie Slater, the family service worker assigned to the case, testified that there had been no trial placements or weekend visits with Brandon. She said that the opportunity for weekend visitation was suspended after Brandon was seen with Megan when they were not supposed to be together. Slater acknowledged that Brandon had complied with the requirements of the case plan. She stated that DHS was asking for his parental rights to be terminated because he was not prepared to protect the children. She believed that Brandon was unwilling to protect the children because he and Megan were together when B.D.'s injuries occurred, and he did not take B.D. to the doctor; he stayed married to Megan until the day of the termination hearing; he did not notify DHS that he and Megan had separated; and he did not have a plan in place for the children if he regained custody. Slater noted that J.M. had sustained a broken femur and that B.D.'s feet were so badly burned that she required skin grafts and had to wear a compression sock. She added that B.D. might have permanent nerve damage to her feet. Slater testified that the injuries did not prohibit the children from being adopted and that there was interest from potential adoptive parents. In Slater's opinion, Brandon had not made substantial measurable progress in the case and had not worked diligently toward the goal of reunification because he had not shown that he could provide for the children and keep them safe from harm.

         On cross-examination, Slater admitted that during the pendency of the case, she had been on leave on three different occasions and that during her leave, she was not an active participant in the case. Slater acknowledged that Brandon and Megan were divorced and that Megan had gone to prison, but she stated that, based on J.M.'s broken femur and B.D.'s burned feet, DHS had concerns about Brandon's ability to protect the children.

         Brandon testified again. He stated that he believed Megan "could have" caused the children's injuries but that he "[did not] know if she did or not because [he] wasn't there." He also stated that when he and Megan were seen together, he was giving her a ride. Brandon testified that he and Megan had not lived together since they separated in May.

         Following the hearing, the circuit court terminated the parental rights of both Brandon and Megan. The circuit court concluded that DHS had proved by clear and convincing evidence that termination of Brandon's rights was warranted under the subsequent-factors ground, the failure-to-remedy ground, and the ...

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