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Young v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

April 25, 2018

BRITTANI YOUNG APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TENTH DIVISION [NO. 60JV-17-665] NORABLE MARK HEWETT, JUDGE

          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.

          MIKE MURPHY, JUDGE

         Appellant Brittani Young appeals from the July 21, 2017 order of the Pulaski County Circuit Court adjudicating her children dependent-neglected, as well as from the order denying her motion for reconsideration. She argues that the circuit court erred in adjudicating her children dependent-neglected because appellee Arkansas Department of Human Services (DHS) failed to present sufficient evidence that she was unfit or that she abused her children. We affirm in part and reverse in part.

         On May 28, 2017, DHS exercised an emergency seventy-two-hour hold on Young's three children, M.P. (DOB 8/16/2009), A.P. (DOB 9/4/2011), and K.B.1 (DOB 8/21/2014), based on the fact that Young's youngest child, K.B.2, passed away after having been in the care of Kwuan Bryant, Young's live-in boyfriend. On May 31, 2017, the circuit court entered an ex parte order of emergency custody. A probable-cause order was entered June 6, 2017, which stipulated that probable cause existed at the time the hold was exercised and continued to exist such that it was necessary that the children continue in the custody of DHS due to the family's history and allegations of physical abuse by an "unknown offender" as it related to K.B.2's death.

         An adjudication hearing was conducted on July 5, 2017. Dr. Thomas James Abramo was the first to testify. He explained that he was the emergency-room physician who cared for K.B.2. Dr. Abramo said that K.B.2 was immediately taken to the resuscitation room when she arrived at the hospital because he observed she was without a pulse and was not breathing. He also observed that she had cloudy eyes, a low core temperature, and some bruising in her lower abdomen. He informed the circuit court that there was never an explanation provided as to what had actually happened to K.B.2. Dr. Abramo stated that he was informed that Young had been work and she came home to find K.B.2 not breathing. He also confirmed that there had been no formal cause-of-death determination because the autopsy report had not been completed at the time of the hearing.

         Kwuan Bryant, K.B.1 and K.B.2's father, testified next. He was not appointed an attorney at the time.[1] Bryant was informed of his Fifth Amendment right to remain silent and not testify, but he chose to testify. He testified that he lives with Young and had for approximately four years. He said the only time he spanked one of the children was two years ago when A.P. had gone to the bathroom in her pants but that he no longer spanks the children. He explained that he was sometimes responsible for watching the children; usually two days a week. He testified that there was a prior incident in which four-month-old K.B.2 fell off an ottoman while she was under his care. When Bryant was asked how K.B.2 died, he first denied knowing what happened; just that "she was sick." He further testified that on the day of her death, K.B.2 woke up around 10:30 a.m., and he fed her at 11:00 a.m. He explained that she vomited after he fed her, but he felt it was not bad enough to alert Young at work. Due to an incident at work, Young came home early. Bryant testified that they noticed K.B.2 did not look right, and they believed she was "drowsy from throwing up." He recounted that it was Young's idea to go to the hospital because K.B.2 had been sick the past three days. Bryant said he thought he could still hear the child breathing when they arrived at the hospital. In addition, he testified that he is currently on probation stemming from a 2013 charge of possession and fleeing.

         Next, Dr. Karen Farst testified as an expert witness regarding pediatric abuse. She testified that she reviewed K.B.2's skeletal surveys and worked with DHS to do evaluations on K.B.2's siblings. She explained that K.B.2's skeletal scan showed she had some bone fractures. Dr. Farst elaborated that her rib fractures occurred at least two weeks prior to her death but could not provide an approximate date of the fractures in K.B.2's legs. Dr. Farst opined that the fractures were unusual for a child at that age and typically only happened as a result of an inflicted injury but that the fractures would not have caused K.B.2's death. She testified that she did not believe that K.B.2 had any "obvious medical conditions" that could be the bases for her injuries. Lastly, she explained that K.B.2's injuries would not have been obvious and visible to Young.

         Lisette Yang, a forensic interviewer for the Children's Protection Center, testified after Dr. Farst. Yang had previously interviewed A.P. and M.P. about the discipline in their home. M.P. said her legal father spanked her with a belt and that Bryant spanked her with an extension cord. M.P. did not say how often this occurred. M.P. also explained that Young spanked her, but not to the level administered by her father or Bryant. M.P. also detailed to Yang that on the day of the incident, K.B.2 was "fine and suddenly, she was not fine." A.P.'s interview with Yang was similar to that of M.P. Lastly, Yang testified that neither child indicated that she felt unsafe around the parents in this case.

         Andrea Carter, an investigator for the Arkansas State Police Crimes Against Children Division, testified that she was assigned to this case and that she had received a preliminary report that indicated the cause of death would be ruled a homicide as a result of blunt-force trauma to the abdomen.

         Lastly, Cora Wilson, the assigned assessment worker for DHS, testified. Wilson testified with regard to the family's history with DHS prior to this case opening. She testified that before to this incident, the agency only had received two hotline calls-one in 2015 and the other in 2017. Wilson summarized DHS's involvement with this family in her affidavit in support of the dependency-neglect petition, which included the following:

Ref# 1854736 (April 7, 2017) A report was accepted for abuse involving [K.B.2] and unknown offender. The report states [K.B.2] had two black eyes and her jaw was swollen and [K.B.2] seemed very tired. [Bryant] said that he didn't know what happened but on Thursday, [Bryant] is ...

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