Noemi E. Sanchez and Edgar Sanchez v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

NOEMI E. SANCHEZ and EDGAR SANCHEZ

APPELLANTS

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA04-00519

OCTOBER 27, 2004

APPEAL FROM THE BRADLEY COUNTY CIRCUIT COURT

[NO. JV-02-37-2]

HONORABLE ROBERT C. VITTITOW, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellants, Noemi Sanchez and Edgar Sanchez, appeal from the termination of their parental rights pursuant to Ark. Code Ann. § 9-27-341 (Supp. 2003) to their minor child, K.S. Appellants have one argument on appeal: that the trial court erred in terminating their parental rights because the Department of Human Services ("DHS") did not prove grounds for termination by clear and convincing evidence. We disagree and affirm.

On May 21, 2002, appellant, Edgar Sanchez, took his daughter, K.S., then only two and one-half months old, to Dr. Dichelle George for her immunizations. Mr. Sanchez testified that during the examination, he also mentioned to the doctor that K.S. had a "red mark" on her hand. However, Dr. George's report from May 21 states that Mr. Sanchez reported "white bumps" on K.S.'s hands. Dr. George administered the immunizations and gave instructions to wipe the area daily and continue to monitor it for further problems. On May 24, 2002, Mr. Sanchez returned with K.S. to see Dr. George and mentioned that he noticed swelling in her right arm and that she seemed to be crying more than usual. Dr. George noted that K.S. was "crying very loudly and inconsolable" and the crying became more extreme when her extremities or her abdomen were touched. Dr. George found swelling in both of her lower extremities, more so in the left than the right. He also noted bruising

on her right cheek and her right arm. X-rays done locally indicated a tibia fracture of the right lower extremity and a right ulnar fracture as well as a right elbow dislocation. Dr. George immediately stabilized K.S., and she was then transferred by Angel Flight to Arkansas Children's Hospital ("Children's Hospital"). Dr. George's letter dated May 30, 2002, stated that "it is felt that this case is most suspicious for child abuse and maltreatment."

Upon arrival at Children's Hospital, K.S. was taken to the operating room where the operative report indicated the following:

After administrative consent was obtained, the patient was taken to the operating room, where general anesthesia was obtained. The patient's right upper extremity was then prepped and draped in a normal sterile orthopedic fashion. Under C-arm guidance, we reduced the elbow by putting longitudinal traction in flexion and [sic] of the wrist. We noted on our C-arm that we had adequate reduction, and we placed two pins, one medial to lateral, and one lateral to medial through the distal fragment into the proximal fragment. We then completely extended the elbow and noted that the elbow and the distal humerus moved in one unit along with the proximal ulna and radius and it was pinned in adequate position. There was a significant amount of swelling in the elbow, but her capillary refill was brisk and the compartments were soft. After the pinning was done of the right elbow, we cut our pins off and bent them, placed adequate dressing underneath the pin sites to protect the skin and placed significant dressings in the antecubital fossa and then placed a long arm splint. We also, during that time, had reduced the mid shaft ulnar fracture and it was in adequate and acceptable position. We then moved on to the right tibia and reduced it by putting longitudinal traction and placing some mild varus stress on it since it was in valgus. We noted on AP and lateral on the C-arm that there was good reduction of the tibia. We then held it and placed a long arm, bent leg splint. We then got new C-arm pictures to confirm our reduction. After all of this had been accomplished and we had good reduction of our right elbow and our right tibia and our right ulna, we once again scanned her left leg and noted that she did have some evidence of old fractures that were in different phases of healing. The patient was then extubated from the operating room and taken to the recovery room in stable condition.

It was further noted that K.S. had signs of "many old healing fractures" that were in different stages of healing in addition to numerous fresh fractures, including a right closed tibia, right closed ulna, and a right distal humeral physeal separation. As a result of the findings, a seventy-two-hour hold was placed on K.S. by DHS.

On June 3, 2002, a petition for emergency custody was filed, and an order for emergency custody was filed that same day. A probable cause hearing was held on June 6, 2002, where appellants' attorney announced that appellants did not contest probable cause. On July 31, 2002, at the adjudication hearing, Dorris Hill, the family service worker, testified that she filed the affidavitto take custody of K.S. following the report from Children's Hospital indicating that K.S. suffered from a total of nineteen broken bones and bruising to the face. She testified that a brittle-bone disease test was performed with negative results. Ms. Hill stated that she spoke with appellants and they provided no adequate, logical explanation for the injuries. However, appellants eventually told her that other family members could have caused the injuries to K.S.

Mr. Sanchez also testified at this hearing. He stated that when he took K.S. to the doctor, he did not know what was wrong with her. He stated that he was "surprised" to find out that the infant suffered from broken bones and that he had no idea how they occurred. He stated that his sister and her husband cared for K.S. while he and the mother were at work. He acknowledged that K.S. was crying quite a bit when he picked her up from his sister's home and that she had scratches on her fingers and toes. He also noticed a redness on her hand and stated that he bandaged the hand to keep her from crying. Mr. Sanchez denied causing any of the injuries to K.S. and claimed that he never saw his wife mistreat the infant. At the conclusion of the hearing, the trial judge adjudicated the infant dependent neglected and ordered supervised visitation.

At a review hearing on February 24, 2003, the trial judge ordered additional services including parenting classes, counseling, and anger management classes. A termination hearing was held on August 26, 2003. LaTonya Crosstweedy, a licensed psychological examiner, testified that she performed intellectual assessments on both appellants. She testified that when she asked Mr. Sanchez about the abuse, he responded that he was not aware that his child was injured and that he did not know what happened. Her assessment of Ms. Sanchez revealed that Ms. Sanchez felt something was wrong and that she suspected Mr. Sanchez's sister. Overall, Ms. Crosstweedy concluded that K.S. should not be returned to the Sanchez home without resolution of the circumstances of the abuse and that appellants were not able to protect the child from eminent danger.

Tracy Pefferkorn, a counselor from Therapeutic Family Services, testified that she worked with appellants on developing anger management skills. Because K.S. was in appellants' care at thetime the injuries occurred and because appellants denied any responsibility or personal knowledge as to how K.S. was injured, she recommended that K.S. not be returned to their home. Mr. Sanchez testified at the termination hearing that he and Ms. Sanchez had complied with everything that DHS requested of them, including counseling, parenting classes, and anger management counseling. Mr. Sanchez maintained his and Ms. Sanchez's innocence as to the injuries. He explained that when he bandaged K.S.'s hand after noticing the red mark, her crying was minimal. He testified that he asked the doctor about the red mark and was told that it was probably infection. He maintained that his sister and her husband were the only other people with access to the infant. Ms. Sanchez testified she did not "have any idea that she had broken bones, much less nineteen." She stated that K.S. only cried when she was hungry or wet, but not when she was touched. She stated that when they questioned the doctor about the red mark that the doctor replied that the lotion that she was putting on the baby could have caused an infection. Ms. Sanchez denied ever seeing her husband do anything to the infant that would cause broken bones. She stated that "the only person I suspected of causing these injuries was my sister-in-law."

At the conclusion of the termination hearing, the trial judge granted the petition to terminate parental rights finding that it was in the best interest of the child; that it was likely that the child would be adopted; that it was potentially harmful for the child to continue to have contact with her parents; and that the child was found to be dependent-neglected as a result of neglect or abuse that could endanger the life of the child that was perpetrated by the child's parents. This appeal followed.

Appellants argue that the trial court erred in terminating their parental rights because DHS did not provide grounds for termination by clear and convincing evidence. Appellants do not argue that the infant was not abused, but assert that two other people who had access to the infant could have inflicted the abuse. Appellants maintain that Mr. Sanchez's sister and her husband must have caused the numerous broken bones and bruising to K.S. When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. J.T. v. Arkansas Dep't of Human Servs.,329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court's evaluation of the evidence, we will not reverse unless the court's finding of clear and convincing evidence is clearly erroneous. Baker v. Arkansas Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Beeson v. Arkansas Dep't of Human Servs., 37 Ark. App. 12, 823 S.W.2d 912 (1992). Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. Baker, supra.

In this case, appellants initially asserted that they were unaware of K.S.'s injuries. Mr. Sanchez testified that he took the baby to see Dr. George because of a "red mark" on her hand. Mr. Sanchez stated that he had previously bandaged the hand with the mark to immobilize the hand and to keep the infant from crying. Because of the infant's inconsolable crying, which worsened when her extremities and abdomen were touched, and the bruise on her cheek, Dr. George ordered an x-ray. The x-ray revealed broken bones, so Dr. George transferred the infant to Children's Hospital, where the infant underwent surgery after the discovery of numerous fractures in all four extremities, including the legs, arms, and fingers. The report from Children's Hospital revealed that the fractures varied in age, and were in different stages of healing. Appellants provided no explanation for K.S.'s extreme injuries, although they later blamed Mr. Sanchez's sister and her husband for the injuries. At the termination hearing, the psychological examiner, the anger management counselor, and the family service worker all recommended that K.S. not be returned to her parents. This recommendation was based in part on their conclusion that appellants were unable to protect K.S. when she was in their care, were unable to recognize the seriousness of K.S.'s injuries, and would be unable to protect K.S. from abuse in the future.

After a thorough review of the record, we cannot say that the trial court's findings in this case are clearly erroneous. Accordingly, the trial court's order terminating appellant's parental rights to K.S. is affirmed.

Hart and Bird, JJ., agree.