Ritha Joy Sanders and Gene Sanders v. Department of Human Services

ca02-630

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

RITHA JOY SANDERS and GENE

SANDERS

APPELLANTS

V.

DEPARTMENT OF HUMAN

SERVICES

APPELLEE

CA 02-630

December 4, 2002

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT

[JV-2002-26]

HONORABLE PHILLIP T.

WHITEAKER, CIRCUIT JUDGE

AFFIRMED

Appellants, Ritha and Gene Sanders, appeal from the trial court's determination that their young son, David, was dependent-neglected. Appellants subdivide their point of appeal into two major sub-points: 1) the trial court erred in finding that the issue of dependency-neglect had been decided at the probable-cause hearing, 2) the trial court erred in finding dependency-neglect because the situation with David did not meet the statutory definition of a dependent-neglected juvenile. We disagree with both sub-points and affirm.

Probable-Cause Hearing

Appellants first contend that the trial court failed to recognize the role of the adjudication hearing when the court noted that the issue of dependency-neglect had been decided at the probable-cause hearing. The court's comments from the bench regarding the earlier probable-cause hearing are a little difficult to understand, but they cannot be fairly read to support what appellants contend.

The Court: Why am I now being asked to go back and address an issue that another court has already heard and that the parents, from what I understand, stipulated?

Ms. Elmore: Well, Your Honor, I wasn't at the probable-cause hearing on this, but at the same time, this is an adjudication on those facts.

The Court: It very much well is, but I am not going to readdress an issue that I think could have and should have been litigated at a prior hearing. There was a prior hearing where the parents stipulated per the record that there was probable-cause to warrant placement in the Department of Human Services and I'm going to find here today that they have stipulated to that, and that based upon that stipulation, and based upon the evidence here today, that I think there was an adjudication of dependency neglect.

Ms. Elmore: Well, Your Honor, in a probable-cause we know it's - - the element or the burden is so much different than an adjudication because it's by the preponderance of the evidence here, it's there, more likely than not, I mean, that's the reason I ask the question.

The Court: All right, well, I'll make more specific findings of fact then. I find that the child was voluntarily placed by the parents in the home of a relative; that the whereabouts of the mother was unknown and tenuous; that the father's contact with the child was - that he did not - it was not an abandonment, but that his contact with the child was to check on the whereabouts of the child; but that by the voluntary placement with the relatives it was due to the fact that the parties were not in a position to have the child in their home; they did not in fact have a home; they were outside of any situation where they could take the child; that the relatives in whom the child was voluntarily placed initiated contact with DHS because they were not in a position of authority to act on behalf of the child; that the parents were not in a position to take the child; and based upon those circumstances the child was taken into DHS care and intoDHS placement and I find that those are sufficient to make the child dependent neglected.

(Emphasis added.) Even if the trial judge's comments were at first confusing, we find that the language emphasized above demonstrates that he did not rely solely upon the stipulations from the probable-cause hearing, but rather made the necessary specific findings of fact from the evidence presented at the adjudication hearing.

Dependency-Neglect

In the second portion of appellants' argument on appeal, they contend that the evidence does not support a finding that David met the statutory definition of a dependent-neglected juvenile. The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark. Code Ann. § 9-27-325(h)(2)(B) (Repl. 2002). We review a trial court'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. Ark. R. Civ. P. 52(a); Brewer v. Dep't Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). 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. Id. A dependent-neglected juvenile is one who "as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness to the juvenile, a sibling, or another juvenile is at substantial risk of serious harm." Ark. Code Ann. § 9-27-303(16)(A) (Repl. 2002). The code defines neglect in pertinent part:

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, or any person legally responsible under state law for the juvenile's welfare, which constitute:

. . . .

(B) 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 or rejected;

. . . .

(E) Failure to provide for the juvenile's care and maintenance, proper or necessary support, or medical, surgical, or other necessary care[.]

Ark. Code Ann. § 9-27-303(33) (Repl. 2002).

Here, Larry Melville, a child maltreatment assessor with DHS, testified that on January 7, 2002, he received a report of physical abuse and medical neglect concerning David; that David was staying with his paternal aunt and uncle, Rebecca and Darren Sanders; and that he began his investigation there. The aunt and uncle reported to Melville that appellants had brought David to stay with them because appellants had been evicted from their apartment and did not have a place to stay. Melville stated that he contacted appellant Gene Sanders on January 8, that Gene confirmed the eviction, that Gene told him the friends with whom he was staying would not allow David to stay there also because there was not enough room, and that he did not know how to contact Ritha. Rebecca Sanders subsequently reported to Melville that Gene took David for a New Year's Eve visit. Melville stated that DHS exercised emergency custody on January 28 because they had made numerous attempts to contact Ritha, she never responded, and DHS did not know where she was. He also said that there was concern about Ritha's past history with her other children, which involved the termination of her parental rights for reasons that included leaving them with other persons to care for them. In addition, he stated that he had received word from another relative, Melissa Sanders, that during the period of August through October 2001, Ritha had left David in her care five or six times over weekends. Melville stated that his impression was that from August 2001 through the time David was taken into care, he did not have a stable home. He explained that DHS's efforts to contact Ritha included asking relatives if they knew how to contact her, and that they reported they did not.

Tamika Eason, a family service worker, testified that she conducted a home study of appellants' home. She stated that they had only been in the home for three days at the time of her study, but that she found it unsuitable for a child. She said that a subsequent visit showed improvement, but that some safety concerns remained. She stated that Ritha appeared to understand what the problems were and that she felt confident Ritha had the capability to correct them. She testified that Ritha told her she made approximately $300 per week working at Jim's Auto Shop. She stated that Gene made $10.67 an hour working full-time at Falcon Jet. She further stated that appellants appear to have the financial resources to afford a suitable home, that their current home can be made suitable for the child, and that they seemed cooperative. On cross-examination, Ms. Eason acknowledged that she was not aware of Ritha's past history with her children, that Ritha was not at homethe first time Eason was scheduled to do the home study, that Ritha did not respond to the note Eason left on her door, and that when she returned to the house the next morning neither parent was there. She did state, however, that she returned that afternoon and was able to conduct the study.

Rebecca Sanders, the paternal aunt in whose care David was left, testified that on December 27, 2001, Gene called her husband and asked if the couple could take David for a week because he and Ritha had been evicted. Rebecca said that David ended up staying with them for about a month. She said that Gene bought some diapers, but made no monetary contribution toward David's care. She said that during the month David was with them, Ritha never came to visit him, and that she called one time. She said that Gene came to visit about three times and that he called in a sporadic fashion.

Rebecca explained that she and her husband are foster parents and that they were concerned that David was developmentally delayed and needed some help. She stated that on one occasion, Gene picked David up for the weekend and she told him that she had an appointment for David on Monday to be evaluated at Community Therapy. She said Gene did not bring David back on Monday or on Tuesday so she called the place where Gene was staying. The woman at that house told her that she did not have David and thought that Rebecca did. Rebecca stated that Gene called her that evening and told her that David had an ear infection and asked her to pick David up from Ritha because she needed someone to care for him. Rebecca stated that she met Ritha in a parking lot, that there was a young man in Ritha's vehicle, and that he yelled at David, telling him to "shut the f - - - up." She saidthat she took David home, that he had "dried poop" on him, that she had to soak him in water in order to get it off, and that he was bleeding by the time she got the diaper changed. Rebecca also reported that when she picked David up in the parking lot that night, she suspected that Ritha might be "high," that Ritha was quiet and subdued until David started crying, and that Ritha then grabbed David and started to shake him but caught herself. She said that Ritha was supposed to let her know about test results on David, but that she never called. She stated that while she was keeping David she really had no way to contact Ritha. She said that Ritha refused to tell her where she was staying, telling her instead that Gene would be able to contact her. Rebecca explained that she and her husband were not trying to take the child away, but that they were so concerned about him that they decided to call DHS and report the situation.

Gene Sanders testified that he asked his brother and sister-in-law to care for David because he and Ritha had been evicted, and that he saw David at the beginning of January and twice during that month. He stated that he called one or two times a day, but that the friends' house in which he was staying was too little to accommodate David. He stated that when he called Rebecca to ask her to pick up David when he had the ear infection, he also asked her to buy the antibiotics for David because he was strapped for cash. He stated that this time in question was not the first time that they had left David with his brother and sister-in-law, that over the last six months they had left David with them three or four times, and that they also left him with Melissa Sanders about the same amount of time in the same six-month period. He stated that he makes over $10 an hour and works at least forty hoursa week and that his wife brings home about $300 a week, but that they have past bills that need to be paid. He stated that he is now willing to work with DHS on budgeting and other matters. He also stated that he could have their current home in an acceptable condition within a week. He explained that he and Ritha had their troubles, had wanted to be apart, but that they were now together and working things out.

In reviewing the evidence, we are not left with a definite and firm conviction that the trial court made a mistake in finding that David was dependent-neglected. Appellants' conduct established neglect under the statute. Moreover, we reject appellants' argument that the fact that the child was being properly cared for by relatives somehow satisfies their parental responsibilities to their child.

Finally, almost as an aside, appellants contend that "the trial court's ruling stands for the proposition that if parents leave their child with a relative for any length of time, with permission of the relative, then the child could be found dependent-neglect." We need only state that the trial court's ruling clearly does not stand for that proposition.

Affirmed.

Hart and Roaf, JJ., agree.