Brent Williams and Lemeya Givens v. Arkansas Department of Health and Human Services et al.
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DIVISION III
CA06-1492
BRENT WILLIAMS
GIVENS
and
LEMEYA
M AY 23, 2007
APPELLANTS
AP P E AL FR O M TH E PULAS KI
COUNTY CIRCUIT COURT
[NO. JN-2006-158]
V.
A R K A N S A S D E P AR TM E N T O F
HEALTH and HUMAN SERVICES, et al.
APPELLEES
HON. JOYCE WILLIAMS WARREN,
JUDGE
AFFIRMED
Appellants Brent Williams and Lemeya Givens appeal the order terminating parental
rights filed in the Pulaski County Circuit Court on October 9, 2006. Appellants contend that
the trial court did not have sufficient evidence before it to support its decision to terminate
parental rights, and that the trial court erred in denying their request to proceed pro se. We
affirm.
Initially we address appellee Arkansas Department of Health and Human Services’s
(DHHS) Motion to Strike Portions of the Record, filed with this court on February 13, 2007.
The motion requests that the portion of the record from Pulaski County JN 2005-1585 included
in the appellant’s record on appeal of the instant case, Pulaski County JN 2006-158, be stricken
as a violation of Ark. Sup.Ct. R. 6-9. Appellants argue that the portion of the record had been
incorporated by the trial court without objection from DHHS at the beginning of the
termination hearing. Further, appellants claim that regardless of whether DHHS made a
contemporaneous objection, the trial court’s incorporation of her previous ruling on the same
issue in a different case is not a violation of Rule 6-9. We deny DHHS’s motion to strike
because DHHS did not make a contemporaneous objection, thereby failing to preserve this
issue for appellate review. E.g., Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).
Facts
On January 19, 2006, L.W., born December 29, 2004, and B.W., born February 12,
2004, were taken into DHHS custody based upon allegations of physical abuse. On January
20, 2006, an ex parte order for emergency custody was filed placing custody of the children
with DHHS. A probable-cause order was filed January 26, 2006, wherein the court found
probable cause that the children had been dependent-neglected, and that the children should
remain in the custody of DHHS. At the adjudication hearing on March 17, 2006, the trial court
found that the allegations of abuse were supported by proof beyond a reasonable doubt.1 The
trial court made a finding that both children were dependent-neglected based on medical
neglect and parental unfitness by both parents. The evidence presented at the adjudication
hearing indicated that this case began with a call to the child-abuse hotline on January 19,
2006, reporting a bone fracture in L.W. L.W. was later discovered to have ten fractured ribs
and a fractured leg. B.W. was discovered to have a fractured leg that was in the process of
1
The standard of proof employed by the trial court was that of reasonable doubt
because it had not yet been determined whether the case involved the Indian Child Welfare
Act, which requires the higher standard of proof.
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healing. B.W.’s fracture was between two and six months old at the time it was discovered.
Neither parent was aware of either child’s injuries until L.W. would not get up and had a
swollen leg. A couple of days later, a lump developed on L.W.’s leg, and a couple of days
after that, on January 19, 2006, the parents took L.W. to the hospital. Neither parent gave
satisfactory explanations for the children’s injuries, the mother claiming that L.W. fell off her
lap, and the father stating that B.W. caught her leg in the crib railing. Neither child had
received any medical treatment prior to this litigation.
On March 30, 2006, the trial court held a hearing and filed an order on the disposition
of the case. The trial court found by clear and convincing evidence that the children were
dependent-neglected and ordered that the children remain in DHHS custody. The goal of the
case at that time was reunification of the children and their mother. The concurrent goal was
set as adoption or guardianship. On M ay 22, 2006, the court held a hearing on the written
recommendation of DHHS and the attorney ad litem for no reunification services to be
provided by DHHS to the parents. The court filed an order on June 14, 2006, finding beyond
a reasonable doubt that the parents had subjected the children to aggravated circumstances as
follows:
(1)
(2)
(3)
the children have been chronically abused;
the children have been subjected to extreme or repeated cruelty;
there is little likelihood that services to the family will result in successful
reunification because both children have sustained serious injuries and neither
parent has given any explanation for these injuries; thus, without knowing the
true reason for the underlying injuries to the children, then the Court can never
know when the cause of the removal has been remedied.
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By order of June 23, 2006, the trial court changed the goal of the case plan to adoption
and authorized a plan for termination of parental rights. A petition to terminate parental rights
was filed July 3, 2006. On August 9, 2006, the trial court filed an order relieving appellant
father’s attorney of record, and appointing attorney Jim Phillips to represent the father. On the
same day, the appellant mother’s attorney moved to withdraw. At the termination hearing held
September 22, 2006, both parents moved to be allowed to represent themselves. The trial
court denied their request, and allowed her reasoning for this decision, which had been stated
on the record in a separate case involving these parties, to be incorporated in the record in the
instant case. An order terminating parental rights was filed October 9, 2006, and this appeal
was timely filed on October 23, 2006.
Sufficiency of the evidence
The standard of review in cases involving the termination of parental rights is well
established. Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2005) requires an order
terminating parental rights to be based upon clear and convincing evidence. Camarillo-Cox
v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Clear and convincing
evidence is that degree of proof that will produce in the fact finder a firm conviction as to the
allegation sought to be established. E.g., Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243,
217 S.W.3d 788 (2005).
When the burden of proving a disputed fact is by clear and
convincing evidence, the question that must be answered on appeal is whether the trial court’s
finding that the disputed fact was proven by clear and convincing evidence was clearly
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erroneous. Id. 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. Gregg v. Ark. Dep’t of Human Servs., 58 Ark. App. 337, 952 S.W.2d
183 (1997). Such cases are reviewed de novo on appeal. Wade v. Ark. Dep’t of Human
Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). However, appellate courts do give a high
degree of deference to the trial court, as it is in a far superior position to observe the parties
before it and judge the credibility of the witnesses. Dinkins v. Ark. Dep’t of Human Servs.,
344 Ark. 207, 40 S.W.3d 286 (2001).
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. Ullom v. Ark. Dep’t of
Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Termination of parental rights is an
extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental
rights will not be enforced to the detriment or destruction of the health and well-being of the
child. Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997).
Parental rights must give way to the best interest of the child when the natural parents seriously
fail to provide reasonable care for their minor children. J.T. v. Ark. Dep’t of Human Servs.,
329 Ark. 243, 947 S.W.2d 761 (1997).
Arkansas Code Annotated section 9-27-341(b) (Supp. 2005) provides in pertinent part
as follows:
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(3) An order forever terminating parental rights shall be based upon a finding by clear
and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the
following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is
granted; and
(ii) The potential harm, specifically addressing the effect on the health and
safety of the child, caused by returning the child to the custody of the parent,
parents, or putative parent or parents; and
(B) Of one (1) or more of the following grounds:
***
(ix)(a) The parent is found by a court of competent jurisdiction, including the
juvenile division of circuit court, to:
...
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) "Aggravated circumstances" means:
(i) 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(b)(3)(A), (B)(ix)(a)(3)(A)-(B)(i).
Appellants argue that the trial court’s findings are not supported by the weight of the
evidence. They argue that during the time following the disposition order, they cooperated
with every order of the trial court and there was no evidence to indicate anything to the
contrary. They claim that nothing new was offered to show unfitness or for any grounds for
termination.
DHHS and the attorney ad litem maintain that the appellants’ argument regarding
sufficiency of the evidence does not clearly articulate which of the trial court’s findings was
clearly erroneous or how the evidence was insufficient and, therefore, is considered abandoned
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on appeal. Benedict v. Ark. Dep’t of Human Servs., __ Ark. __, __ S.W.3d __ (Nov. 1, 2006).
Even so, both appellees contend that the appellants’ reliance on the fact that they fully
cooperated with reunification services is misplaced.
DHHS argues that where a parent has subjected a child to aggravated circumstances,
reunification services do not have to be provided. Brewer v. Ark. Dep’t of Human Servs., 71
Ark. App. 364, 43 S.W.3d 196 (2001).
Here, DHHS contends that the aggravated
circumstances stem from the physical abuse of both children, which resulted in bone fractures
in both children. We agree with DHHS and affirm, holding that the trial court had before it
clear and convincing evidence of the children’s abuse, and therefore, the decision to terminate
parental rights was not clearly erroneous. Because we affirm based upon DHHS’s aggravatedcircumstances argument, we do not reach DHHS’s other arguments in support of affirmation
on this point.
Request to proceed pro se
Appellants also argue on appeal that the trial court erred in denying their request to
proceed pro se. They ask this court to hold that they properly waived their right to counsel.
In Bearden v. Arkansas Department of Human Services, 344 Ark. 317, 325, 42 S.W.3d 397,
402 (2001), our supreme court stated, “It is ... well established that an accused has a
constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver
of his constitutional right to the assistance of counsel in his defense. But every reasonable
presumption must be indulged against the waiver of fundamental constitutional rights.”
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This court set forth the factors used to evaluate whether a parent has made a valid
waiver of the right to counsel in Battishill v. Arkansas Department of Human Services, 78
Ark. App. 68, 82 S.W.3d 178 (2002), where we said:
Our supreme court has found that a waiver of the fundamental right to the assistance
of counsel is valid only when 1) the request to waive the right of counsel is unequivocal
and timely asserted; 2) there has been a knowing and intelligent waiver of the right to
counsel; and 3) the defendant has not engaged in conduct that would prevent the fair
and orderly exposition of the issues. Bearden v. Arkansas Dep’t of Human Servs., 344
Ark. 317, 42 S.W.3d 397 (2001). In order to effectively waive counsel the parent must
be “made aware of the dangers and disadvantages of self-representation, so that the
record will establish that he knows what he is doing and that he has made his choice
with his eyes open.” Bledsoe v. State, 337 Ark. 403, 406, 989 S.W.2d 510, 512 (1999)
(citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)).
The determination of whether there has been an intelligent waiver of the right to counsel
depends on the particular facts and circumstances of each case, including the
background, the experience, and the conduct of the accused. Id. Every reasonable
presumption must be indulged against the waiver of a fundamental constitutional right
to counsel. Daniels v. State, 322 Ark. 367, 372, 908 S.W.2d 638, 640 (1995).
Battishill, 78 Ark. App. at 72, 82 S.W.3d at 180.
Appellants argue that they properly waived their right to counsel and should have been
allowed to proceed pro se. They argue that they both sought to proceed pro se, and on August
10, 2006, during a probable-cause hearing held in Pulaski County JN2005-1585, which
involved appellants’ minor child T.G. who passed away on August 18, 2006, the trial court
took up the motions to proceed pro se in both cases. At that hearing, the trial court extensively
questioned the appellants, whose answers were summarized in appellants’ abstract as follows:
We understand that we have a right to an attorney in these dependency neglect
proceedings. We also have a right in these dependency neglect proceedings to
attorneys appointed to represent us if we are unable to hire our own attorneys. We are
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aware that the court has appointed attorneys for us. We are not attorneys nor have
either of us been to law school or trained in the law. We have studied the law. We
have studied everything, their codes, as far as recommendations to terminate parental
rights and so forth, seizures of children. We understand that it is wise and prudent to
have the advice and the assistance of attorneys to represent them and to protect their
rights. We understand it is not advisable to not have an attorney to represent us during
the trial proceedings. We have not gone through the training required by attorneys to
represent parents in Arkansas, especially in these types of specialized hearings. We are
not quite sure if we understand the rules of evidence that cover civil proceedings. We
know some of the requirements that attorneys have to hold themselves to particular
standards, court room decorum, court room procedure, and stuff like that. We
understand we would be held to the same standards as all of the attorneys in this case.
We further understand the court could not bend one way or the other to help us. We
are not quite sure how to file an appeal but we intend to be filing a couple in the future.
We are both high school graduates, ages twenty-one and twenty respectively.
At the beginning of the termination hearing in the instant case, both parents renewed
their request to represent themselves, and those requests were denied. Upon appellants’
motion, the trial court incorporated the proceedings as set forth above, as well as the trial
court’s findings in the earlier proceeding, into the record for the purpose of detailing the
reasoning for the trial court’s denial of the request to proceed pro se.
Appellants claim that they met the requirements set forth in the case law, in that they
voluntarily, knowingly, and intelligently waived their right to counsel. Therefore, they argue
that because they met the requirements to proceed pro se, this court must reverse and remand
for a hearing in which they are allowed to represent themselves.
We hold that the trial court erred in finding that the appellants did not make a knowing
and intelligent request for waiver of counsel. Based upon the testimony as recited above, the
appellants’ waiver was made in an unequivocal and timely manner, and there was no evidence
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before the trial court of any conduct by appellants that would prevent the fair and orderly
exposition of the issues. Therefore, our next inquiry leads us to whether the trial court’s denial
prejudiced the appellants.
Both DHHS and the attorney ad litem contend, and we agree, that appellants must show
prejudice or harm as a result of having appointed counsel represent them at the termination
hearing. In Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004), the criminal defendant
argued on appeal that his conviction should be reversed because the trial court erred in denying
his request to proceed pro se. Our supreme court noted an absence from appellant’s argument
that he was prejudiced as a result of the trial court’s ruling. The court held that it is axiomatic
that some prejudice must be shown in order to find grounds to reverse a conviction. Id., at
176, 195 S.W.3d at 894.
Applying the supreme court’s reasoning in Morgan to the case at hand, appellants must
have been prejudiced by the trial court’s denial of their request to proceed without
representation in order to obtain relief. The appellant father stated on direct examination by
his attorney that “since you were appointed my attorney two or so months ago, you have been
better than a private attorney. I mean, you have really been there . . . You have been responsive
to what I have asked [and] have represented me appropriately.” DHHS argues that neither
parent made any complaints about their counsel. Therefore, even though the trial court erred
in denying appellants’ request to proceed pro se, that error, by appellants’ own admission, did
not cause them to suffer prejudice.
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Accordingly, we affirm the trial court’s order denying the appellants’ request to proceed
pro se.
Affirmed.
H ART and R OBBINS, JJ., agree.
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