Erwin Bradford v. Arkansas Department of Health and Human Services and Minor Children
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JUDGE DAVID M. GLOVER
DIVISION II
CA07-254
September 5, 2007
ERWIN BRADFORD
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HEALTH & HUMAN SERVICES and
MINOR CHILDREN
APPELLEES
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
TENTH DIVISION [JJN-2005-1917]
HONORABLE JOYCE WILLIAMS,
JUDGE
AFFIRMED
Appellant, Erwin Bradford, appeals from the termination of his parental rights with
respect to K.B., a minor child (D.O.B. May 21, 2001). Appellant is K.B.’s biological
uncle, and he had previously adopted her. K.B. was removed from appellant’s house on
September 9, 2005, and, on November 9, 2005, she was found to be dependent-neglected
as a result of sexual abuse. Appellant appealed the dependency-neglect determination,
and it was affirmed by this court in an unpublished opinion delivered September 20,
2006. His parental rights were terminated by order filed on December 15, 2006. We
affirm the termination.
Cases involving the termination of parental rights are reviewed de novo. Griffin v.
Ark. Dep’t of Health & Human Servs., 95 Ark. App. 322, ____ S.W.3d ____ (2006). We
do not reverse the circuit court’s finding of clear and convincing evidence unless that
finding is clearly erroneous. Benedict v. Ark. Dep’t of Health & Human Servs., 96 Ark.
App. 395, ____ S.W.3d ____ (2006). 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. Id. This does not mean, however, that
the appellate court is to act as a “super fact-finder,” substituting its own judgment or
second guessing the credibility determinations of the court. Id. We reverse only in cases
where a definite mistake has occurred. Id.
For his first point of appeal, appellant contends that the trial court erred in
terminating his parental rights because “he was penalized” for asserting his FifthAmendment right to be free of compelled self-incrimination in that he was reluctant to
participate in sex-offender treatment because it would require him to admit that he was a
sex offender. In other words, appellant takes the position that his parental rights were
terminated in large part because he did not engage in sex-offender therapy, that the reason
he did not engage in the therapy was because it was his understanding that he would have
to admit that he had sexually abused his daughter, that he had a constitutional right not to
incriminate himself in that manner, and that he was thereby penalized “for asserting” his
Fifth-Amendment right not to incriminate himself. Both the DHHS and the ad litem
attorneys counter appellant’s contention under this point by noting that it is not preserved
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for appeal.
Arguably, appellant has not properly preserved this issue for appeal.
However, even if we were to conclude that this issue was properly preserved, we find no
merit in the argument.
While appellant danced around his Fifth-Amendment rights at the termination
hearing, we are not convinced that he ever actually properly asserted them. That is,
appellant never even started the sex-abuse therapy program, contending at the termination
hearing that to do so would have required him to admit sexual abuse as a condition of the
therapy, and that in doing so his Fifth-Amendment right to be free of self-incrimination
would have been violated.
Neither DHHS progress notes nor appellant’s testimony
presented at the hearing revealed any such prior assertion of Fifth-Amendment rights by
appellant.
Rather, the progress notes stated that appellant’s sex-offender assessment
program was “on hold” during the pendency of appellant’s appeal of the dependencyneglect adjudication in which he was found to have sexually abused K.B. As mentioned
previously, that determination was affirmed by this court in an opinion delivered
September 20, 2006. In addition, even though appellant’s counsel mentioned appellant’s
Fifth-Amendment rights during opening and closing arguments at the termination hearing
on November 21, 2006, appellant took the stand and testified. When he was directly
asked about the sexual abuse, rather than asserting his constitutional right not to
incriminate himself, he simply denied abusing his daughter.
Amendment objections to testifying.
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He raised no Fifth-
In fact, appellant raised no formal Fifth-Amendment objection to the trial court,
prior to the termination hearing, that his constitutional rights would be violated if he were
required to engage in the sex-offender therapy.
Prior to the termination hearing, he
simply avoided the treatment. Then, he did not assert his Fifth-Amendment right not to
testify at the termination hearing. Instead, he took the stand and denied that he had
abused the child. Thus, his “assertion” of his Fifth-Amendment rights, for which he
claims to have been erroneously penalized, was essentially limited to his failure to attend
sex-offender therapy and to his attorney’s arguments during opening and closing
statements.
The trial court did, however, acknowledge, in comments from the bench and in the
order terminating appellant’s parental rights, that appellant had hidden behind “appeals,
Fifth-Amendment rights, DHHS caseworker changes, and any other excuses except the
fact that he alone is the reason we are here today,” and, “[h]e invokes his FifthAmendment rights, his right to appeal, his right not to attend any therapy that requires him
to admit to something that he says he did not.” (Emphasis added.) Consequently, we are
not convinced that appellant properly asserted his Fifth-Amendment rights in order to
preserve this issue for review, nor that the trial court was actually addressing that
argument in its comments.
Even if this issue had been properly preserved, however, we would find no merit in
the argument. The short answer to appellant’s first argument is that, even if he were
correct in claiming a Fifth-Amendment right not to engage in sex-offender therapy that
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required an admission of sexual abuse, it does not follow that he would be thereby
shielded from the consequences of asserting that right, i.e., the termination of his parental
rights for not taking part in the therapy. Appellant has cited no cases that convince us
otherwise. As the trial court explained at the close of the termination hearing, the fact
that appellant invoked his various rights in this case did not mean that K.B. was left
without any rights, including the “right not to be sexually abused by her father” and the
“right to have a safe, permanent, loving home with a parent or parents who can protect
her.” We agree.
For his remaining point of appeal, appellant contends that DHHS did not make a
meaningful effort to rehabilitate him, that he cannot be at fault for not participating in a
service when that service was never even provided until the same month as the
termination hearing, and that the trial court therefore erred in terminating his parental
rights. The service to which he is referring is the sex-offender therapy. We find no merit
in the argument.
Following the November 9, 2006 adjudication hearing, K.B. was found dependentneglected due to sexual abuse by appellant. Arkansas Code Annotated section 9-27-303
(46) (C)(Supp. 2005) provides in pertinent part:
( C ) Reasonable efforts to reunite a child with his or her parent or parents
shall not be required in all cases. Specifically, reunification shall not be required if
a court of competent jurisdiction, including the juvenile division of circuit court,
has determined by clear and convincing evidence that the parent has:
(i) Subjected the child to aggravated circumstances[.]
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“Aggravated circumstances” is defined in pertinent part as follows: “A juvenile has been
abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused,
or a determination has been made by a judge that there is little likelihood that services to
the family will result in successful reunification[.]” Ark. Code Ann. § 9-27-341 (Supp.
2005) (emphasis added). Also see Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App.
364, 43 S.W.3d 196 (2001). Accordingly, under the circumstances of this case, DHHS
was under no obligation to provide appellant with any reunification services.
Although under no obligation to do so, DHHS offered counseling and sex-offender
therapy to appellant; however, the evidence before the trial court supported the notion that
appellant never intended to attend sex-offender therapy, certainly not before the
dependency-neglect adjudication was decided on appeal. As noted by the trial court
following the termination hearing:
Even though not ordered until August ... 2006, he, his attorney, the attorney ad
litem, and DHHS all knew about the sexual abuse finding of this Court and knew
that was for – – knew that was the reason for K.B.’s entry into foster care. He and
his attorney could have asked DHHS for referral. Instead he stonewalls, he refuses
to consider and outright refuses to have any such treatment until, again, the
midnight hour. It is far too little. It is much too late.
We agree and find no basis for reversal in his argument that DHHS did not make a
meaningful effort to rehabilitate him because it failed to make a referral for sex-offender
therapy until the case had been going on for over a year.
Affirmed.
R OBBINS and B AKER, JJ., agree.
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