FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-16-796]
HONORABLE STACEY ZIMMERMAN, JUDGE.
Standridge, for appellant.
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
W. GRUBER, CHIEF JUDGE.
Potterton appeals from the Washington County Circuit
Court's adjudication and disposition order entered on
December 27, 2016, in this dependency-neglect case. She does
not challenge the court's finding of dependency-neglect.
Her sole point on appeal is that the circuit court's sua
sponte finding of aggravated circumstances violated her right
to due process. We hold that appellant did not preserve this
issue for appeal, and we affirm the circuit court's
Arkansas Department of Human Services (DHS) placed a
seventy-two-hour hold on B.N. (born on May 25, 2016) on
October 12, 2016, after the child was taken to Arkansas
Children's Hospital due to a bump on his head. Doctors at
the hospital discovered that he had a bilateral skull
fracture, a subdural hematoma, and bruising on his face and
hands. Doctors also discovered that B.N. had older injuries,
including rib fractures that dated back three to six weeks.
The circuit court issued an order for emergency custody on
October 17, 2016. In the court's probable-cause order,
entered on October 19, 2016, it ordered appellant to have no
contact or visitation with B.N.
court entered an adjudication and disposition order on
December 27, 2016, finding beyond a reasonable doubt that
B.N. was dependent-neglected as a result of neglect, physical
abuse, and parental unfitness. The court specifically found
by clear and convincing evidence that appellant had caused
the injuries to B.N. Finally, the court found by clear and
convincing evidence that appellant had subjected B.N. to
aggravated circumstances. The court set the goal of the case
as reunification with a concurrent goal of adoption.
sole point on appeal is that the court erred in finding
aggravated circumstances where DHS did not file any pleadings
alleging aggravated circumstances and, thus, that she was not
on notice that she needed to defend against such a finding.
She alleges that this violated her right to due process.
held in termination cases that due process demands that a
parent be notified of the grounds that may constitute a basis
for termination; at a minimum, it requires notice reasonably
calculated to afford a natural parent the opportunity to be
heard prior to termination of his or her parental rights.
Dornan v. Ark. Dep't of Human Servs., 2014
Ark.App. 355, at 16 (citing Jackson v. Ark. Dep't of
Human Servs., 2013 Ark.App. 411, 429 Ark.App. 276
(reversing because Jackson was not placed on notice that he
must defend against a particular ground on which the circuit
court based termination: the department never specifically
argued that the circuit court should rely on the ground, the
circuit court took the matter under advisement without ruling
from the bench, and the first specific mention of this ground
was in the circuit court's order terminating parental
rights)). The dependency-neglect statute governing requests
for "no reunification services" also requires the
motion requesting the hearing to "identify sufficient
facts and grounds in sufficient detail to put the
defendant on notice as to the basis of the motion." Ark.
Code Ann. § 9-27-365 (Repl. 2015) (emphasis added).
Although the order appealed from in this case was neither an
order of termination nor an order for no reunification
services, the proceedings and orders pertaining to the
termination of parental rights "build on one another,
" and the findings of previous hearings are elements of
subsequent hearings. Neves da Rocha v. Ark. Dep't of
Human Servs., 93 Ark.App. 386, 393, 219 S.W.3d 660, 664
focus of an adjudication hearing is on the child, not the
parent. Seago v. Ark. Dep't of Human Servs.,
2009 Ark.App. 767, at 28, 360 S.W.3d 733, 747. At this stage
of a proceeding, the juvenile code is concerned with whether
the child is dependent-neglected. Id. An
adjudication of dependency-neglect occurs without reference
to which parent committed the acts or omissions leading to
the adjudication; the juvenile is simply dependent-neglected.
Id. In the case at bar, the petition for emergency
custody and dependency-neglect did not specifically allege
aggravated circumstances, but DHS's evidence at the
adjudication hearing suggested that B.N.'s injuries were
attributable to appellant. Testimony was introduced that
criminal charges were pending against appellant for
first-degree domestic battery as a result of an investigation
into B.N.'s injuries; that appellant had signed a
confession admitting to actions that might have injured B.N.;
and that there had been a true finding issued against
appellant with B.N. as the victim "for cuts, bruises,
welts, bone fracture, throwing and striking, brain damage,
and skull fracture." Appellant's attorney began her
closing argument to the court with the following statement:
"We can't obviously deny the child was injured, but
we do deny that he was injured at the hand of Gabrielle
Potterton." She concluded her argument as follows:
"So we would ask that the court, of course, follow the
recommendations of DHS, but to not find that the mother
committed these acts in the adjudication order, and let the
criminal action handle that matter."
court then issued oral rulings, which included the following
statements: "And, Mom, I don't have to wait for your
criminal case to find by clear and convincing evidence that
you've subjected your child to aggravated circumstances.
No doubt in my mind that you did. Clear and convincing
evidence I find that you, ma'am, caused the skull
fractures to his head." Appellant did not object. And
when, at the conclusion of the hearing, the court asked if
appellant "had anything else, " appellant's
attorney said, "No, Your Honor."
appellant failed to raise or develop this issue in the
circuit court, and noting particularly her failure to object
to the court's clear finding of aggravated circumstances
at the adjudication hearing, we hold that appellant's
argument is not preserved for appeal. It is well settled that with
the notable exception of matters involving subject-matter
jurisdiction, we will not consider issues raised for the
first time on appeal, even when the issue is a matter of
constitutional magnitude. Maxwell v. Ark. Dep't of
Human Servs., 90 Ark.App. 223, 234, 205 S.W.3d 801, 808
(2005); see also Walters v. Ark. Dep't of Human
Servs., 77 Ark.App. 191, 72 S.W.3d 533 (2002) (holding