Marcos Landaverde v. Arkansas Department of Health and Human Services
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
SARAH J. HEFFLEY, JUDGE
DIVISION I
CA 07699
December 5, 2007
MARCOS LANDAVERDE
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. JV200511083]
V.
HONORABLE STACEY ZIMMERMAN,
JUDGE
ARKANSAS DEPARTMENT OF HEALTH
AND HUMAN SERVICES
APPELLEE
AFFIRMED
Appellant, Marcos Landaverde, appeals the order of the Washington County Circuit
Court that terminated his rights to his son, G.L., born November 19, 2004, after the court
found appellant was not the legal father of G.L. and had taken no steps to establish paternity.
On appeal, appellant raises three arguments: (1) his due process rights were violated when
he was not given notice of the first four hearings in this case; (2) he was improperly denied
his right to assistance of counsel; (3) there was not clear and convincing evidence to support
the termination of his parental rights. We find no error and affirm.
On October 18, 2005, the Department of Health and Human Services (DHHS)
received a report of allegations of physical abuse and threat of harm upon G.L. by appellant.
DHHS workers visited Auralina Perez at Northwest Medical Center in Springdale, Arkansas,
along with her children S.F. and G.L. Mrs. Perez is married to Wilmer Figueroa, who is
S.F.’s biological father. Appellant is the putative father of G.L. G.L. had no visible injuries,
but Perez had sustained a broken eye socket and sinus cavity and had a severe black eye.
When asked how she was hurt, Perez stated that appellant had hit her because she was
protecting their son, G.L., from appellant, who had kicked G.L. DHHS placed Perez and the
children at the Salvation Army in Fayetteville to wait until there was an opening at a local
women’s shelter.
On November 2, 2005, a protective service case was opened on the family to offer
services and to ensure the health and safety of the children. Perez left the Salvation Army on
November 9 to reside with a friend in Springdale, and after obtaining the family’s new
address from S.F.’s school, DHHS workers visited the new address and found that Perez was
living with appellant. At that time, DHHS exercised a seventytwo hour emergency hold on
the children. In the petition for emergency custody filed December 19, 2005, appellant was
listed as the putative father of G.L.
An adjudication hearing was held on January 4, 2006, at which the court found that
the children were dependent/neglected due to abuse and parental unfitness. According to the
adjudication order, Perez was the only person served with notice of the proceedings. Perez
was allowed supervised visitation with the children, but appellant was to have no contact
with the children. A review hearing was held April 5, 2006, and the court found that Perez
had completed some parenting classes and attended some counseling, but still had unstable
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housing. The goal of the case remained reunification with a concurrent goal of adoption.
Appellant did not appear at either the adjudication hearing or the April 5 review hearing.
Appellant was in attendance, however, for the next review hearing, held August 30,
2006. At that hearing, the court found that Perez was not in compliance with the court orders,
in that she had not maintained contact with DHHS and had not exercised visitation with the
children. The court also indicated that she continued to live with appellant, who had
physically abused her. Perez was ordered to obtain and maintain employment; maintain safe,
clean, and stable housing; and attend counseling. While noting that appellant had not
established paternity, the court ordered appellant to complete twelve hours of parenting
classes, cooperate with DHHS, and undergo an angermanagement assessment.
A permanency planning hearing was held on November 30, 2006, and extended into
December. At that hearing, the court found that both Perez and appellant had been untruthful
and had not complied with the case plan, and the permanency goal was changed to adoption.
At the termination hearing held March 16, 2007, the court heard testimony from DHHS
worker Molly Mashburn, who recommended terminating the parental rights of both Perez
and appellant and placing custody of the children with Figueroa, the legal father of both
children. Perez testified that the injuries she had sustained in October 2005 were the result
of an accident, not abuse by appellant, although she did admit that appellant had been
convicted of domestic battery as a result of the incident. She also testified that appellant had
been arrested again in April 2006 and convicted of disorderly conduct after arguing with her.
She testified that there had been no more incidents of domestic abuse, and that while she was
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still married to Figueroa, she had lived with appellant for the past four years and continued
to do so.
DHHS introduced affidavits of service for Perez and appellant, as well as all the
previous court orders entered in the case, and then rested its case. After hearing directed
verdict motions from both Figueroa and appellant, the court ruled that the State had made a
prima facie showing as to appellant and that appellant was properly served and had proper
notice of the termination hearing by being personally served with a summons and a petition
for termination of parental rights.
Appellant then testified and explained that he had commenced attending the court
proceedings in this case on August 30, 2006, because he was interested in getting the
children back. He testified that he had done everything the court asked of him, including
attending parenting and anger management classes. Appellant testified that his relationship
with Perez had improved greatly and that they had matured as a couple. He asked that the
children be returned to him and Perez. Appellant admitted he was only the putative father
of G.L. and had taken no steps to establish paternity, stating, “He’s my son. I don’t have any
doubts. I don’t need to take any steps.” When asked why he had not appeared in court until
August 2006, eight months after G.L. was taken into DHHS custody, appellant explained,
“I always asked Aurelina if it was necessary for me to appear or if I had to take any steps to
get the kids back. And she said that it was not necessary for me to appear in court and that
she would do everything.” Appellant stated that Perez had been hurt in October 2005 after
he pushed her and she fell during an argument, but he denied ever kicking G.L.
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In its ruling, the court found that with respect to appellant, he was not the legal father
to S.F. or G.L. and had no legal rights to G.L. Perez had G.L. while married to Figueroa, she
is still married to Figueroa, and appellant had taken no steps to establish paternity. The court
also found appellant’s explanation of Perez’s injury “totally unbelievable,” noting that while
appellant claimed it was an accident, he pled guilty to domestic battery. The court found it
was in the best interest of the children to terminate “all rights that Mr. Landaverde might
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have claimed,” and the goal of the case remained reunification with Figueroa. Appellant
then filed a timely notice of appeal to this court.
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. Johnson v. Ark. Dep’t of
Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). The facts warranting termination
of parental rights must be proven by clear and convincing evidence, and 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. Ark. 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 fact finder 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. Id. Additionally, we have noted that
in matters involving the welfare of young children, we will give great weight to the trial
Perez’s parental rights were also terminated as to both children; however, she is
not a party to this appeal.
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judge's personal observations. Ullom v. Ark. Dep't of Human Servs., 340 Ark. 615, 12
S.W.3d 204 (2000).
For his first point on appeal, appellant argues that he was denied due process in that
he was not given notice or an opportunity to be heard until the case against him had already
been developed through four hearings, namely the ex parte emergency hearing, the probable
cause hearing, the adjudication hearing, and the first review hearing. Appellant also argues
he did not receive notice of the termination hearing until four days before the hearing date.
Appellant argues that as a putative father whose rights were at stake, he should have been
a party to the case from the beginning. However, appellant’s arguments in this regard were
never raised to the trial court below, and even in a case involving termination of parental
rights in which constitutional issues are argued, we will not consider arguments made for the
first time on appeal. Myers v. Ark. Dep’t of Human Servs., 91 Ark. App. 53, 208 S.W.3d 241
(2005). Also, with regard to appellant’s argument concerning untimely notice of the
termination hearing, we note that DHHS introduced an affidavit of service for appellant,
evidencing his notice of the termination hearing, without objection by appellant, and the trial
court found that appellant had been properly served, again without objection by appellant.
For his second point on appeal, appellant argues that he was improperly denied his
right to counsel at the early stages of the case, and this denial was not cured by the
appointment of counsel on his behalf for the final two hearings. However, appellant failed
to raise this argument to the trial court below, and we therefore find it is not preserved for
our review. Myers, supra. Furthermore, we note that while Ark. Code Ann. § 927316(h)
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(Supp. 2005) provides that a parent or guardian may be appointed counsel by the court, the
statute makes no such provision for a putative parent.
For his third point on appeal, appellant argues that there was not clear and convincing
evidence supporting the decision to terminate his parental rights. As a subpoint under this
argument, appellant first argues that the trial court erred in determining that he was not the
natural father of G.L. Appellant contends that the trial court’s conclusion that he had no legal
rights to G.L. was premised only on the testimony of Figueroa and Perez that they were still
married, and any presumption of legitimacy was rebutted by appellant’s own testimony that
he is G.L.’s father. Appellant argues that the evidence presented should have been sufficient
to prompt the trial court to order genetic testing pursuant to Ark. Code Ann. § 1643901
(Repl. 1999) to determine G.L.’s biological father. But section 1643901 refers to genetic
testing in the context of a proceeding to establish paternity, and there is no evidence that
appellant ever filed a petition to establish paternity. The trial court was under no obligation
to sua sponte order genetic testing when appellant had made no effort to establish his rights
as G.L.’s putative father.
As his second subpoint, appellant argues that there was insufficient evidence to show
that he had failed to remedy the conditions that caused the children’s removal. However, the
trial court found, both in its permanency planning order filed December 20, 2006, and its
termination order filed April 2, 2007, that appellant was not truthful about the domestic
abuse that had occurred and continued to deny the abuse that caused the children to come
into DHHS custody. In its ruling from the bench, the court stated that appellant had done
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nothing to resolve the domesticabuse cycle other than go to angermanagement classes,
citing another domestic dispute that had occurred between Perez and appellant after G.L. had
been taken into custody. As stated above, we give due regard to the opportunity of the trial
court to judge the credibility of witnesses and give great weight to the trial judge's personal
observations. We find that the trial court’s ruling in this regard was not clearly erroneous and
affirm the termination of appellant’s parental rights.
Affirmed.
GLOVER and BAKER, JJ., agree.
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