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Haney v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

September 13, 2017

BROOKE ANN HANEY AND WAYNE NORRED APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE CALHOUN COUNTY CIRCUIT COURT [NO. 07JV-15-14] HONORABLE DAVID W. TALLEY, JR., JUDGE REVERSED

          Leah Lanford, Arkansas Public Defender Commission, for appellants.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          Gruber, C.J., and Harrison, J., agree.

          RAYMOND R. ABRAMSON, Judge

         Appellants Brooke Ann Haney and Wayne Norred appeal a Calhoun County Circuit Court order adjudicating their infant daughter, A.N.2, dependent-neglected. On appeal, appellants challenge the circuit court's findings and argue that they are clearly erroneous. We agree and reverse the circuit court.

         Appellants have had an open dependency-neglect case with the Arkansas Department of Human Services (DHS), Division of Children and Family Services (DCFS) since October 2, 2015.[1] DCFS initially removed siblings R.N. and B.N. from the home after another sibling, three-year-old A.N.1, died after drowning in a washing machine.[2] R.N. and B.N.were then adjudicated dependent-neglected because of A.N.1's death, and appellants were required to submit to services. The adjudication of R.N. and B.N. as dependent-neglected was not appealed.

         On July 5, 2016, the circuit court held a review hearing and issued an order in regard to A.N.2, who was in utero. The court and the parties were aware that Brooke was going to return to Louisiana, where her family resided, to give birth. The court verbally ordered appellants to surrender A.N.2 to DHS upon her birth or as soon as they were discharged from the hospital and could return to Arkansas. The court memorialized its directives in a written order, but that written order had not been entered at the time of A.N.2's birth on August 25, 2016.

         When A.N.2 was born in Louisiana, Brooke informed her doctor about the open case and circumstances surrounding the birth and also asked the hospital to call the child-services agency for the State of Louisiana. The agency (OCS) came to the hospital on Friday, August 26, to talk to Brooke, and Brooke gave them the number for her Arkansas caseworker, Bettye Farmer. Brooke also tried to call Farmer on Sunday, August 28, after being discharged. Because the Louisiana agency could not get in touch with Farmer before Brooke and A.N.2 were discharged, the state believed it needed to take custody of A.N.2 even though Brooke was directed to return to Arkansas and surrender her.

         On August 30, 2016, Arkansas DHS filed a petition for an ex parte emergency order for protection of A.N.2 from immediate danger, acknowledging that a report of child maltreatment had been turned in to Livingston Parish, Louisiana, due to "concerns that the newborn had siblings in the custody of the Arkansas DCFS." DHS further alleged that "per court order on 8-2-16 Calhoun County DCFS is ordered to take custody of this infant after she is born." The same day, the court granted the petition and entered an ex parte emergency order for protection of A.N.2 from immediate danger. On August 31, 2016, Louisiana OCS turned over custody of A.N.2 to Arkansas DCFS, and on September 6, 2016, the court entered an order of emergency custody finding that custody was to remain with DCFS.

         On September 6, 2016, the court held a probable-cause hearing and found probable cause to remove A.N.2 because appellants "failed to notify the Department when A.N.2 was born as this Court ordered." Appellants argued that they were not directed to inform DHS of A.N.2's birth, but only to surrender her upon discharge from the hospital. The court set the case for an adjudication hearing on October 4, 2016.

         At the hearing, DHS asked the court to find A.N.2 dependent-neglected "as a matter of law" in that her siblings had already been determined to be dependent-neglected. Appellants responded that DHS had to demonstrate that A.N.2 was at substantial risk of serious harm. DHS caseworker Bettye Farmer was the only witness to testify on behalf of DHS at the hearing. Farmer testified that she believed A.N.2 was at substantial risk of serious harm because she was in the "same circumstances" as A.N.1. She also stated that appellants had always been cooperative with services and with DHS while the case had been open on the two surviving siblings but that she did not believe there had been a "mindset change" because appellants maintained that A.N.1's death had been an "accident" rather than an "accident that could have been prevented."[3]

         As to the obligation of the appellants upon A.N.2's birth, Farmer testified that they were under a court order to notify DHS of her birth and to surrender her to Arkansas DCFS as soon as Brooke was able to return to Arkansas from Louisiana. Farmer ...


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