Cheryl Paslay v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CA 00-268

December 20, 2000

CHERYL PASLAY APPEAL FROM WHITE COUNTY

APPELLANT CHANCERY COURT, JUVENILE DIVISION

VS.

HONORABLE ROBERT EDWARDS,

ARKANSAS DEPARTMENT CHANCERY JUDGE

OF HUMAN SERVICES

APPELLEE AFFIRMED

On November 18, 1999, Cheryl Paslay's parental rights to her daughter, M.P., were terminated pursuant to Ark. Code Ann. § 9-27-341 (b)(3)(B)(vi) when the trial court found that the child had been subjected to abuse that was life-threatening and that the abuse and neglect was perpetrated in part by appellant. Appellant argues that the trial court's decision was clearly erroneous. We find no error in that decision and affirm.

In February 1999 nineteen-month-old M.P. was taken to the emergency room at a hospital in Searcy because she was havingdifficulty breathing. The baby was transported to Arkansas Children's Hospital in Little Rock and placed on a ventilator. The police and DHS had been contacted due to the numerous bruises on the child's head, stomach, and leg.

Dr. Janice Allison testified that she read M.P.'s x-rays and bone scans and that the child had several bone fractures, including a well-healed fracture to the femur and acute fractures to her ulna and scapula, and quite a few bone bruises. Dr. Allison stated that the child's CT showed a subdural hematoma, which is bleeding around the brain. Dr. Allison testified that M.P. also had a large hematoma that covered the majority of her back. She stated that both hematomas would be life-threatening. She also explained that a subdural hematoma can be caused by a high-speed motor vehicle accident or by shaking a baby. After considering all of the child's injuries as a whole, Dr. Allison opined that the child had been abused.

Dr. Michelle Moss testified that M.P. was unconscious when she arrived at Children's Hospital. Dr. Moss stated that the child's heart rate was very high and that her blood count was so low that she required a blood transfusion. Dr. Moss stated that there was so much blood in the hematoma on the child's back that it actually sloshed around. Dr. Moss and the other doctors suspected that she had had seizures in the past and gave her medication for that. Dr. Moss stated that she should have had some history of injuries but that there was none according to appellant, including no history of seizure activity. According to Dr. Moss, an opthamologist examined M.P.'s eyes and noted that the child had multiple retinal hemorrhages which are essentially always caused by abuse. Dr. Moss stated that the most common injuries associated with shaken baby syndrome are subdural hematomas and retinal hemorrhages. Dr. Moss testified that most babies with this syndrome die or have severe debilitating neurologic disease. Additionally, Dr. Moss stated that the child had a tear around her rectum. Dr. Moss was of the opinion that her injuries were the result of child abuse or maltreatment.

Detective Bobby O'Brien with the Searcy police department testified that he spoke to appellant to determine what had happened to the child and learned that appellant was living with her boyfriend, Marvin Brewer. Appellant signed a statement admitting that she and Brewer had hit the child in an attempt to discipline her.

The relevant portions of appellant's statement are as follows:

Marvin has spanked [M.P] on the bottom with no results. About three weeks ago, Marvin started hitting [her] in the head and face area to discipline her. I have seen him hit her on several occasions. Many of the times he had hit her, he has left bruises on her. I have talked to him about this, but Ididn't think he was meaning to hurt her. . . . Before I left for work today at about 2:30 p.m., I told Marvin he had to quit hitting [M.P.]. [She] has always been stubborn and has had to be disciplined fairly hard. . . . I have had to spank her mouth a few times to get her attention.

It is well settled that chancery cases are reviewed de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Appellant argues that the trial court's decision to terminate her parental rights was clearly erroneous. We disagree. Appellant maintains that there is no evidence that she did anything other than hit the child in the mouth. She contends that, although this was wrong, it did not endanger M.P.'s life. However, appellant admits in her statement that she essentially sat by while her boyfriend abused her daughter. Moreover, the doctors' testimony indicates that the hematomas the child suffered at the hands of Brewer were life-threatening. Appellant argues that if Marvin Brewer was the offender, since he is not a parent to M.P., he does not come under the provisions cited by DHS.

But this case is not about Brewer. Appellant's parental rights were terminated because she entrusted the care of M.P. to Brewer when she knew he was hitting the girl. The trial court could find that appellant was a participant in the abuse.

Next, appellant argues that she did take steps to prevent the abuse by telling Brewer that he had to stop hitting the child. While she admits that she could have done more, she argues that her attempt should prevent her inaction from falling within the definition of neglect. However, as the trial court pointed out, appellant was free to leave Brewer at any time. Parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Gregg v. Arkansas Dep't of Human Servs., 58 Ark. App. 337, 952 S.W.2d 183 (1997). We find no error in the trial court's decision to terminate appellant's parental rights. Affirmed.

Pittman and Neal, JJ., agree.