APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-18-706]
HONORABLE STACEY ZIMMERMAN, JUDGE
Leah
Lanford, Arkansas Public Defender Commission, for appellant.
Callie
Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
N.
MARK KLAPPENBACH, JUDGE.
Liset
Araujo appeals the order of the Washington County Circuit
Court adjudicating her one-year-old daughter, MM,
dependent-neglected. Appellant argues that the circuit court
erred in finding that MM was at substantial risk of serious
harm. We affirm.
MM was
removed from appellant's custody on August 16, 2018.
Three days earlier, a hotline call was made reporting that
MM's putative father, Sabino Miranda, had punched
appellant in the face and back and later punched appellant
while she was holding MM. Appellant told family service
worker Miranda Collins that after Miranda assaulted her the
second time, she ran to a friend's apartment, but Miranda
followed her and tried to assault her friend. The friend
called the police, and Miranda threatened to kill appellant
and her friend and to take MM away. Miranda was arrested and
charged with two counts of terroristic threatening,
second-degree assault, second-degree domestic assault, and
endangering the welfare of a minor in the third degree.
Appellant told Collins that the abuse had been an
"ongoing thing" and that on one occasion in
December, Miranda punched her so hard while she was holding
MM that he ended up punching MM in the face as well.
Appellant said that both she and MM sustained marks on their
faces from the punch.
Appellant
told Collins that she did not want to be with Miranda anymore
and was willing to do anything to get away from him.
Appellant agreed to go to the Peace at Home Family Shelter
with MM because they did not know when Miranda would be
released from jail, and appellant said that she would use her
savings to try to get her own apartment. On August 16,
however, appellant called Collins to ask how she could drop
the charges against Miranda. Appellant told Collins that she
wanted all of this to go away and that she would be willing
to go to counseling with Miranda. Appellant reported that the
shelter had a bed available for her beginning August 14, but
she did not go because she no longer felt that she was in
danger. Collins testified that the Arkansas Department of
Human Services (DHS) felt that appellant would not protect MM
because MM had been hurt during a previous domestic dispute
with Miranda, and appellant wanted to drop the charges
against Miranda after the latest domestic dispute. MM was
thus removed from appellant's custody, and DHS filed a
petition for emergency custody and dependency-neglect.
Appellant
testified at the September 26 adjudication hearing that she
had been at the shelter since August 16. She denied telling
Collins that she did not think she needed to go and said that
she did not go on August 14 because the shelter did not send
someone to pick her up as promised. She admitted that she had
called and asked about dropping the charges against Miranda
but said that she did not know what she was thinking and did
not actually drop the charges. She filed a petition for an
order of protection against Miranda on August 21 and was
ultimately granted a final order of protection. Appellant
said that she did not desire to reconcile with Miranda and
that she had asked his attorney to tell Miranda to take her
name off their apartment lease so she could rent her own
apartment. Appellant testified that she could stay at the
shelter until then and that MM could stay at the shelter with
her.
Family
service worker K.C. Oliver testified that MM was in a foster
home and that DHS did not believe she could be returned to
appellant's custody immediately. Although appellant's
visits were going well and DHS wanted to increase them,
Oliver said that appellant had not undergone counseling, and
she was concerned about appellant's ability to protect MM
if she went home. Miranda testified that he slapped appellant
on August 12 when she was yelling at him, but he denied that
any physical contact occurred later that night while they
were arguing. He also denied the punching incident alleged to
have occurred in December and said that he had never hit MM.
The
circuit court ruled from the bench that it found by a
preponderance of the evidence that MM was
dependent-neglected. Pursuant to the adjudication order, MM
was adjudicated dependent-neglected as a result of neglect
and parental unfitness. Appellant now appeals the
adjudication order.
Adjudication
hearings are held to determine whether the allegations in a
petition are substantiated by the proof. Ark. Code Ann.
§ 9-27-327(a)(1)(A) (Supp. 2017). Dependency-neglect
allegations must be proved by a preponderance of the
evidence. Ark. Code Ann. § 9-27-325(h)(2)(A)(2) (Supp.
2017). In reviewing a dependency-neglect adjudication, we
defer to the circuit court's superior position to observe
the parties and judge the credibility of the witnesses.
Merritt v. Ark. Dep't of Human Servs., 2015
Ark.App. 552, 473 S.W.3d 31. We will not reverse the circuit
court's findings unless they are clearly erroneous.
Id. A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction
that a mistake has been made. Id.
The
juvenile code defines a dependent-neglected juvenile to
include any juvenile who is at substantial risk of serious
harm as a result of neglect or parental unfitness. Ark. Code
Ann. § 9-27-303(18)(A) (Supp. 2017). The definition of
neglect includes the failure to take reasonable action to
protect the juvenile from abuse, neglect, or parental
unfitness when the existence of this condition was known or
should have been known. Ark. Code Ann. §
9-27-303(36)(A)(iii). 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. Merritt, supra.
Appellant
argues that the facts do not support a conclusion that MM was
at substantial risk of serious harm due to a failure to
protect or parental unfitness. Instead, she argues that she
discharged her parental responsibilities and acted to protect
MM by obtaining the order of protection, staying at the
shelter, and separating from Miranda. She claims that her
actions completely negated any basis for the court to find
that MM would be at ...