Brandy Halton v. Arkansas Department of Human Services
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II
CA05390
March 15, 2006
BRANDY HALTON
APPELLANT
APPEAL FROM THE CLEBURNE
COUNTY CIRCUIT COURT
[JV2004185]
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
HONORABLE STEPHEN CHOATE,
CIRCUIT JUDGE
AFFIRMED
DAVID M. GLOVER, Judge
Brandy Halton appeals an order of the Cleburne County Circuit Court that
adjudicated her eighteenmonthold daughter, R.J., born on March 26, 2003, dependent
neglected. On appeal, she argues that the trial court clearly erred in finding that the
Arkansas Department of Human Services (DHS) established by a preponderance of the
evidence that R.J. was dependentneglected. We affirm the decision of the trial court.
In Brewer v. Department of Human Services, 71 Ark. App. 364, 36768, 43
S.W.3d 196, 199 (2000), this court held:
The juvenile code requires proof by a preponderance of the evidence in
dependencyneglect proceedings. We review a chancellor's findings of fact de
novo, and will not set them aside unless they are clearly erroneous, giving due
regard to the trial court's opportunity to judge the credibility of the witnesses. A
finding is clearly erroneous when, although there is evidence to support the
finding, after reviewing all of the evidence, the reviewing court is left with the
definite and firm conviction that a mistake has been made.
(Citations omitted.)
In this case, a petition for emergency custody of R.J. was filed by DHS on October
29, 2004. In support of its petition for emergency custody, DHS attached an affidavit
from Johnnelle Switzer, a DHS employee, stating that the trial court held a FINS hearing
on October 27, 2004, on the basis that there was not an appropriate care giver for R.J.
The affidavit further stated that Christine Halton, the maternal grandmother, and Lewis
Moiser, the maternal greatgrandfather, had been caring for R.J., but that Christine Halton
was currently incarcerated in the Cleburne County Jail and that Lewis Moiser could not
care for R.J. due to his work schedule; that according to interviews with relatives and a
juvenile probation officer, appellant had never been R.J.’s care giver and would not be
appropriate; that the location of R.J.’s father was unknown; and that the location of R.J.
was currently unknown. An order for emergency custody was entered on the same day,
placing custody of R.J. with DHS; appointing an attorney ad litem for R.J.; and setting
the probablecause hearing for November 4, 2004, and the adjudication hearing for
November 17, 2004.
At the November 4 probablecause hearing, appellant was not present, but the trial
court appointed her counsel in its order. At this hearing, no sworn testimony was taken,
but the trial judge had a conversation on the record with appellant’s mother, Christine
Halton. During this conversation, Christine told the trial court that R.J. was with Teresa
Begley, Christine’s current or former samesex partner; that Christine did not want
appellant to have R.J. because appellant was using drugs; but that appellant was trying to
stop using drugs. When the prosecutor pointed out that appellant, who had legal custody
of R.J., was addicted to drugs, Christine said that appellant had never had R.J. and had
never been a part of R.J.’s life. Christine said that she had allowed appellant and her
boyfriend to stay with her previously, and she also professed that she was no longer
“doing drugs” because it was hurting “the kids” and her “grandbaby.” After this
“discussion,” the trial judge found that probable cause existed and continued the custody
of R.J. in DHS.
The adjudication hearing was held on November 17. Nicole Chaberson, a
caseworker for DHS, testified that appellant did not show any interest in R.J. for six days
after R.J. was taken into custody. Chaberson said that she had performed a homestudy
on Moiser’s house for a seventeenyearold girl, but with all of the people who were
living there, there did not appear to be adequate space for R.J.
Appellant was called by DHS in its case in chief at the adjudication hearing. She
testified that she was eighteen years old and that she had been off drugs for about six
months. She said that she was bipolar, but that she was not on any medications because
she was pregnant again. She testified that on October 27, she was staying with her friend,
Heather Harding; that R.J. was staying at her grandfather’s house with Teresa Begley;
and that R.J. was in her grandfather’s custody, although he “did not have any papers”
stating that he had legal custody of R.J. Appellant said that the reason R.J. was in her
grandfather’s custody was because she was staying at Heather’s house about ten minutes
away from her grandfather’s house and she was looking for a job. However, appellant
also testified that she had brain surgery in February 2004, and that she chose to live at
Heather’s house because it was more relaxed and quiet, and she felt more comfortable
there. Appellant said that she could not financially take care of R.J. at the time and that
she knew her grandfather and Begley would take care of her. Appellant first stated that
she visited her daughter every day, then she changed that to every two days or so, and
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then she said that she “visited regularly, as much as [she] could.” Appellant said that she
could not care for R.J. because she did not have a job, but she later testified that she had a
job but quit after five or six weeks to move back and try to find work closer to home.
Appellant testified that when she moved in with Heather, that Heather fed her and
provided for her, and that Heather was also willing to feed R.J.; however, appellant did
not want to take R.J. out of her grandfather’s home because R.J. was so attached to
Moiser, Begley, and Christine Halton. Appellant said that R.J. was also bonded to her,
but not to any surroundings other than Moiser’s home.
Appellant learned that her mother had been incarcerated on October 27, but she
did not go to her grandfather’s house until October 31, even though it was only ten
minutes away from Heather’s house by her own estimation. Appellant disputed the
assertion in the affidavit that she was not R.J.’s care giver, stating that she had been with
R.J. for her “whole life” except from February 2004 until October 2004; however, that
period of time was eight months out of the eighteen months of R.J.’s life. Appellant also
disputed Chaberson’s testimony that she did not call about R.J. after DHS picked her up,
stating that she had called every day except Veteran’s Day and the week of the
adjudication hearing.
Appellant admitted that she had not been the best mother, and that she had made
mistakes and bad decisions. She said that she regretted “not being there” for a few
months, and that she knew that was a bad decision. Appellant said that she had enrolled
in Cross Roads Alternative School; that she had checked into counseling; and that she
wanted to take some parenting classes. She said that Begley would keep R.J. while she
was in school.
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Appellant admitted that she had used drugs in the past, including
methamphetamine, but she said that she was “through with that.” She said that she
needed to stay away from people who were her friends when she was using drugs. She
said that it took a long time for her to become stable, that she had learned from her
mistakes, and that she wanted to be in R.J.’s life and not leave again.
Appellant explained that she was pregnant again, but the father of that baby was
not R.J.’s father. She said that she and the father of the baby that she was currently
carrying were not together, and that the only relationship they had was as the parents of
their unborn child.
Appellant also explained that her mother met Begley while in prison, where
Begley was a guard at the time her mother was incarcerated. Appellant said that while
Begley was a lesbian, that did not bother her because Begley took good care of R.J. and
did not discuss her sexual preference with R.J. or any of the family.
Appellant’s grandfather, Lewis Moiser, and Begley both testified on appellant’s
behalf, stating basically that they would do whatever was necessary for R.J. to be
returned to Moiser’s home. Nicole Chaberson, the DHS case worker, also testified again,
stating that she did not know if it would be appropriate for R.J. to be in Moiser’s home
because of the number of people living there at the time, but she said that she did not
know of any previous neglect problems in the home with regard to R.J. Chaberson said
that she would have recommended a FINS petition so that Moiser could get custody of
R.J. rather than the seventytwohour hold that was placed on R.J.
At the close of the adjudication hearing, the trial court adjudicated R.J.
dependent/neglected; placed joint custody of R.J. with Moiser and Begley; and ordered
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appellant to finish her educational program, to take parenting classes, to not use drugs,
and to get involved in mentalhealth counseling.
Arkansas Code Annotated subsection 927303(18)(A) (Supp. 2005) defines
“dependentneglected juvenile”:
(18)(A) "Dependentneglected juvenile" means any juvenile who is at substantial
risk of serious harm as a result of:
(i) Abandonment;
(ii) Abuse;
(iii) Sexual abuse;
(iv) Sexual exploitation;
(v) Neglect;
(vi) Parental unfitness to the juvenile, a sibling, or another juvenile; or
(vii) Being present in a dwelling or structure during the manufacturing of
methamphetamine with the knowledge of his or her parent, guardian, or
custodian.
For our purposes, subsection (36)(A) of section 927303 defines “neglect” with regard to
juvenile proceedings:
(36)(A) "Neglect" means those acts or omissions of a parent, guardian, custodian,
foster parent, or any person who is entrusted with the juvenile's care by a parent,
custodian, guardian, or foster parent, including, but not limited to, an agent or
employee of a public or private residential home, child care facility, public or
private school, or any person legally responsible under state law for the juvenile's
welfare, which constitute:
(i) Failure or refusal to prevent the abuse of the juvenile when the person knows or
has reasonable cause to know the juvenile is or has been abused;
(ii) Failure or refusal to provide the necessary food, clothing, shelter, and
education required by law, excluding failure to follow an individualized
education program, or medical treatment necessary for the juvenile's well
being, except when the failure or refusal is caused primarily by the financial
inability of the person legally responsible and no services for relief have
been offered;
(iii) Failure to take reasonable action to protect the juvenile from abandonment,
abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when
the existence of this condition was known or should have been known;
(iv) Failure or irremediable inability to provide for the essential and necessary
physical, mental, or emotional needs of the juvenile, including failure to
provide a shelter that does not pose a risk to the health or safety of the
juvenile;
(v) Failure to provide for the juvenile's care and maintenance, proper or
necessary support, or medical, surgical, or other necessary care;
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(vi) Failure, although able, to assume responsibility for the care and custody of
the juvenile or to participate in a plan to assume the responsibility; or
(vii) Failure to appropriately supervise the juvenile that results in the juvenile's
being left alone at an inappropriate age or in inappropriate circumstances,
creating a dangerous situation or a situation that puts the juvenile at risk of
harm.
(Emphasis added.)
Appellant first contends that the “conversation” between her mother and the trial
judge at the probablecause hearing, in which Christine admitted doing drugs and told the
court that appellant was doing drugs and was trying to quit, cannot be used against her
because it was not sworn testimony. We agree that this unsworn conversation cannot
form the basis for adjudicating R.J. dependent/neglected. However, we hold that there
was other subsequent sworn evidence that does support the trial court’s finding of
dependent/neglect.
Appellant points out that under Ark. Code Ann. § 927303 (17)(B) (Supp. 2005),
a child cannot be considered to be a dependent juvenile if the parent or guardian is
incarcerated but has an appropriate relative or friend who is willing or able to provide
care for the child. She argues that “surely this logic applies in a situation where a parent
has not even incarcerated [sic]. If a parent is not available, or for some reason not able to
properly provide care for her child, or even just simply removes herself from the equation
for a period of time, that parent is not required by law to seek the State’s, or even the
Court’s permission to leave the child with an appropriate caretaker.”
We are unpersuaded by appellant’s tenuous argument. Appellant was not
incarcerated, and her reasons for leaving R.J. were selfimposed and selfserving. While
R.J. seemingly was being cared for in an appropriate manner by appellant’s grandfather
and by her mother’s present or former girlfriend, appellant was the person who had legal
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custody of R.J. and who bore the legal responsibility for R.J.’s care and welfare.
Appellant had, however, basically abdicated that responsibility for almost half of R.J.’s
young life to persons who were not R.J.’s legal custodians and had no legal responsibility
for R.J.’s welfare. Appellant argues that she left R.J. with people she knew would take
care of her while she tried to get her life together; however, at the time of the adjudication
hearing, appellant had done very little, if anything, to get her life affairs in order. She
was pregnant again by another man; she had quit the only job she had since leaving R.J.
at her grandfather’s house after only five or six weeks of working; and she was not
currently working or in school, although she testified that she intended to return to
school. While there were other options that could have been pursued in this matter, i.e.,
Moiser or Begley could have petitioned for guardianship of R.J., we are not left with a
definite and firm conviction that the trial court erred in finding R.J. dependentneglected.
Affirmed.
BIRD and CRABTREE, JJ., agree.
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