Gregg v. Arkansas Dep't of Human Servs.

Rebecca and Michael GREGG v. ARKANSAS
DEPARTMENT OF HUMAN SERVICES

CA 97-22                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
              Opinion delivered September 24, 1997


1.   Parent & child -- grounds for termination of parental rights
     proved by clear and convincing evidence -- factors considered
     on appeal. -- Grounds for termination of parental rights must
     be proved by clear and convincing evidence; clear and
     convincing evidence is that degree of proof which will produce
     in the factfinder a firm conviction as to the allegation to be
     established; when the burden of proving a disputed fact is by
     clear and convincing evidence, the question on appeal is
     whether the trial court's finding that the disputed fact was
     proved by clear and convincing evidence is clearly erroneous;
     due regard must be given to the opportunity of the trial court
     to judge the credibility of the witnesses; 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. 

2.   Parent & child -- termination of parental rights an extreme
     remedy -- parental rights not enforced to detriment of child.
     -- Termination of parental rights is an extreme remedy and in
     derogation of the natural rights of the parents; however,
     parental rights will not be enforced to the detriment or
     destruction of the health and well being of the child.  
3.   Parent & child -- chancellor's finding not clearly erroneous -
     - appellee proved by clear and convincing evidence that child
     was victim of abuse perpetrated by appellants. -- The
     chancellor's finding that appellee proved by clear and
     convincing evidence that the child was the victim of neglect
     or abuse perpetrated by appellants was not clearly erroneous
     where evidence clearly proved that the infant child had
     suffered over thirteen fractures of the collarbones, legs,
     arms, and ribs that were in various stages of healing; that
     these injuries were received while appellants were receiving
     services from the appellee; that health-care professionals
     concluded that the injuries presented a classic case of child
     abuse, which could be life threatening; that the injuries
     could not have been caused accidentally; and that the child
     experienced no new fractures after being removed from
     appellants' home. 


     Appeal from Baxter Chancery Court; Gary Isbell, Chancery
Judge, Juvenile Division; affirmed.
     Osmon, Chism & Ethredge, P.A., by:  Kerry D. Chism, for
appellant.
     No response.

     Margaret Meads, Judge.
     This is an appeal from an order of the Baxter County Juvenile
Court granting appellee's petition for termination of parental
rights.  Appellant Rebecca Gregg is the natural mother of L.G., a
male minor child, born August 2, 1995.  Appellant Michael Gregg is
the husband of Rebecca Gregg and the child's legal father.
     Initially, we note with chagrin that appellee did not file a
brief in this case; thus, we must rely solely on appellant's
abstract and brief.  In a matter of such importance as the
termination of parental rights, for which the Department of Human
Services has exclusive authority, we find it unconscionable that
DHS elected not to file an appellee's brief.
     Appellant's brief reveals that on October 3, 1995, Mrs. Gregg
took L.G. to Baxter County Regional Hospital where a skeletal
survey revealed multiple fractures of the collarbones, legs,
forearms, and ribs.  Appellee filed a petition for emergency
custody which alleged that L.G. was at imminent risk and should be
removed from appellants' custody.  At an ex parte hearing held
October 5, the court found probable cause to believe the child was
dependent-neglected, ordered his immediate removal from appellants'
custody, and placed him in appellee's custody.  After an
adjudication hearing held November 6, 1995, the court entered an
order finding L.G. to be dependent-neglected and further finding
that L.G.'s injuries were severe and consistent with Child
Maltreatment Syndrome.
     On December 4, 1995, appellee filed a Petition for Termination
of Parental Rights alleging that L.G. was the victim of neglect or
abuse perpetrated by appellants that endangered his life.  On May
10, 1996, appellee filed a Court Report for Hearing which stated in
part:
     Despite their dependability and appropriate demeanor,
     there is still strong concern for L. G. or any child in
     the care of Michael and Rebecca because it was this same
     conduct that took place while L. G. was subjected to 18
     fractures between 08/25/95 and 10/03/95.  This was a
     period of time that Rebecca and Michael were receiving
     supportive services and seemed very appropriate to all
     workers that they had contact with and yet extreme severe
     physical abuse was being inflicted on a very young
     infant.  

     . . . .

     Rebecca and Michael's attorney had advised the couple not
     to submit to psychiatric evaluations so our knowledge of
     this couples' mental makeup is limited.  We do know that
     they present a very "normal" behavior to our workers. 
     However, some very abnormal violent behavior took place
     in their home behind closed doors, with little L. G. as
     the victim.

     After a hearing held June 17, 1996, the trial court entered an
order finding appellee had proved, by clear and convincing
evidence, that L.G. was a victim of neglect or abuse that could
endanger his life; that L.G. sustained multiple fractures over a
period of two to three weeks evidencing Battered Child Syndrome;
and that these injuries were perpetrated by Rebecca "and/or"
Michael Gregg.  Appellants' parental rights were terminated, and
appellee was authorized to consent to the adoption of the minor
child without notice to or consent of appellants.   
     Grounds for termination of parental rights must be proved by
clear and convincing evidence.  Ark. Code Ann.  9-27-341(b) (Supp.
1995).  Clear and convincing evidence is that degree of proof which
will produce in the factfinder a firm conviction as to the
allegation to be established.  Anderson v. Douglas, 310 Ark. 633,
839 S.W.2d 196 (1992).  When the burden of proving a disputed fact
is by "clear and convincing" evidence, the question on appeal is
whether the trial court's finding that the disputed fact was proved
by clear and convincing evidence is clearly erroneous.  Freeman v.
Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987).  In resolving this
question we must give due regard to the opportunity of the trial
court to judge the credibility of the witnesses.  Beeson v.
Arkansas Dep't of Human Servs., 37 Ark. App. 12, 823 S.W.2d 912
(1992).  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.  Hardison v. Jackson, 45 Ark. App. 49, 871 S.W.2d 410 (1994).
Our case law is clear that termination of parental rights is an
extreme remedy and in derogation of the natural rights of the
parents; however, parental rights will not be enforced to the
detriment or destruction of the health and well being of the child. 
Corley v. Arkansas Dep't of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1996).
     Appellants argue the chancellor's finding that appellee proved
by clear and convincing evidence that L.G. was the victim of
neglect or abuse perpetrated by appellants is clearly erroneous. 
Appellants do not argue that the child was not abused, but only
that there were other persons who had access to the child who could
have inflicted the abuse.  
     At the June 17, 1996, hearing on appellee's petition, Dr.
Perry Wilber, a pediatrician, testified that L.G. was brought into
the emergency room on October 3, 1995, because he was inconsolable
and would not stop crying.  A skeletal survey revealed multiple
fractures of the collarbones, legs, arms, and ribs that were in
various stages of healing.  A physical examination revealed some
dime-sized brownish bruises on the lower back to the right of the
spine.    
     Dr. Wilber testified there was no medical problem that could
have caused the fractures; the history related by the mother was
the child had been crying and fussy, irritable, and inconsolable
unless held upright; and the emergency room record stated that the
mother said "he" fell with the child two weeks prior, but the child
did not start crying until Sunday.  Dr. Wilber testified in detail
about the fractures.  He testified that the left forearm bones were
completely separated in an acute fracture, and the bones would have
required a forceful injury to be cleanly broken like that; that it
is unusual to find fractures above and below the knee because those
are non-weight bearing areas in a baby, and also unusual to find
fractures around the ankle in non-ambulatory children; and that the
blow which caused the rib injuries had to be "pretty hard," harder
than the force used in doing CPR.
     Dr. Wilber testified further that the injuries had occurred
within the past month, since they were not present on a skeletal
survey done a month previously, when L.G. was hospitalized with
hemorrhages in his eyes and some peculiar hemorrhages on his
fingers.  Rebecca's explanation for those injuries was that L.G.
rolled off the couch while in Michael's care.  Dr. Wilber testified
that he did not see how that could have happened, because a month-
old baby does not project himself off a couch.
     Based on the unexplained crying, the x-rays, and the various
ages of the fractures, Dr. Wilber believed L.G. had been physically
abused.  He testified that he was and still is concerned about
L.G., because his injuries were severe and potentially life
threatening.
     Dr. Robert Foster, an orthopedic surgeon, testified that
L.G.'s injuries presented a classic case of child abuse, which can
be life threatening; that the injuries could not have been caused
accidentally; and that L.G has had no new fractures since he has
been out of appellants' home.
     Cheryl Munson, a caseworker for appellee, testified that she
recommended terminating appellants' parental rights even though the
Greggs had complied with everything she told them to do.  She had
a problem leaving L.G. with appellants because he had suffered over
thirteen fractures during the period they were receiving services
from appellee, during which time their behavior always seemed
appropriate.  Ms. Munson testified it was her opinion that
appellants had injured the infant because Michael admitted grabbing
him by the leg to keep him from dropping, tripping in the bedroom
and falling on the floor with him, and leaving him on the sofa just
before he fell off.  She also believed appellants had injured L.G.
because the health-care professionals believed that the nature of
his injuries presented a classic case of child abuse.  Ms. Munson
testified that L.G. was subjected to severe physical abuse while in
appellants' care which was perpetrated by "one of two" people.  She
did not believe that Angela Rowden, a babysitter, inflicted the
injuries.
     Appellant Rebecca Gregg testified that L.G. had been watched
by her in-laws, and by Angela Rowden and Angie Gibson.  She could
not say that the babysitters could not have injured L.G.  She
stated she had never harmed L.G.; that she did not believe Michael
would intentionally hurt L.G.; and that she believed Michael
accidently hurt L.G.  
     However, Rebecca also testified that Michael dropped L.G. and
caught him by the leg, bumped L.G.'s head on the bedroom wall, and
fell with L.G.  She said she had told the police that she was never
around when Michael had anything happen to L.G.; that she would
come home sometimes and find a bruise on L.G. which neither she nor
Michael could explain; and whenever anything bad happened with
L.G., she was either asleep or not at home.  She said Michael is
"clumsy."  Rebecca testified further that she continued using
Angela Rowden as a babysitter even though she thought Angela Rowden
might have dropped L.G.
     Appellant Michael Gregg testified that he had accidently
injured L.G. when the infant "got loose from my arm" and he caught
L.G.'s leg before the infant hit the floor; when he bumped L.G.'s
head against the wall after picking him up to go out the door; and
when he fell forward while holding L.G.  He said he did not go to
the hospital after falling with L.G. because the infant was able to
move his arms and legs, and he did not call the doctor when he hit
L.G.'s head even though it was bruised.  He also testified that
L.G. rolled off the couch while in his care when he left him
unattended for two to four minutes.  Michael had no other
explanation for the fractures.
     At the conclusion of the hearing, the chancellor stated that
Michael Gregg had indicated four instances where something had
happened to L.G. while in his custody, and the incident in which
Michael fell forward could not have accounted for all of L.G.'s
broken bones.  It might have accounted for some of the broken ribs
or leg fractures, but did not account for the difference in the age
of the injuries or for the extremities that were injured.  He had
never seen that kind of damage done to a child in that earliest
period of its life.  In terminating appellants' parental rights,
the chancellor said there "has never been a decision that this
Court made that the Court makes with more confidence than this
one," and he could not in good conscience ever allow L.G. to return
and be subjected to "this kind of unbelievable situation."
     After a thorough review of the record we are not left with a
definite and firm conviction that a mistake has been made.  On the
evidence before us, we cannot say the chancellor's findings are
clearly erroneous.  
     Affirmed.
     Robbins, C.J., and Crabtree, J., agree.