Tadlock v. Ark. Dep't of Human Servs.
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Cite as 2009 Ark. App. 821
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA09-814
Opinion Delivered
RONALD TADLOCK
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
December 9, 2009
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[NO. JV-2007-593 B]
HONORABLE VICKI SHAW COOK,
JUDGE
AFFIRMED
JOHN MAUZY PITTMAN, Judge
Ronald Tadlock appeals from an order terminating his parental rights in C.T. (born
December 4, 2008). In a related appeal decided today, we affirmed two prior orders from the
Garland County Circuit Court, one of which adjudicated C.T. dependent-neglected and the
other of which terminated appellant’s parental rights in another child, T.T. See Tadlock v.
Arkansas Dep’t of Human Servs., 2009 Ark. App. ___, ___ S.W.3d ___. For the following
reasons, we also affirm the termination order in this case.
Approximately sixteen months before C.T. was born, his mother, Michelle Hrdlicka,
gave birth to a daughter, T.T., on August 12, 2007. Hrdlicka tested positive for drugs at that
time and appellant, the child’s father, tested positive for drugs two times in the weeks that
followed. On August 16, 2007, DHS obtained emergency custody of T.T. and another of
Hrdlicka’s children, S.M. The circuit court adjudicated the children dependent-neglected and
Cite as 2009 Ark. App. 821
ordered appellant and Hrdlicka to, among other things, remain clean and sober; to submit to
random drug testing; to attend NA/AA meetings and obtain sponsors; to submit to drug
assessments and follow recommendations; to attend court hearings; to maintain stable housing
and employment; and to maintain a clean, safe, and healthy living environment. The court
also adopted a mediation agreement in which appellant promised to attend parenting classes
and to attend NA/AA meetings three times a week and obtain a sponsor.
During the following year, DHS provided numerous services to appellant and
Hrdlicka, and the couple made progress toward reunification. Appellant tested negative on
all drug screens; Hrdlicka completed drug rehabilitation; the couple found suitable housing;
and appellant obtained regular employment. As a result, the court permitted the children to
have a sixty-day trial visit with appellant and Hrdlicka beginning on October 24, 2008. While
the visitation was in progress, C.T. was born on December 4, 2008. On December 22, 2008,
the court determined that the trial visit was successful and returned T.T. and S.M. to appellant
and Hrdlicka.
As discussed in the related opinion, the children’s presence in the household was shortlived. On January 7, 2009, Michelle Hrdlicka tested positive for drugs, causing DHS to file
an emergency petition to resume custody of T.T. and S.M., and to file a dependency-neglect
petition seeking emergency custody of C.T. The circuit court placed all three children in
DHS custody and found probable cause for their removal from the home. DHS subsequently
filed a motion to terminate reunification services and to terminate appellant’s and Hrdlicka’s
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parental rights to T.T. and S.M. By orders entered March 18, 2009, the circuit court
terminated appellant’s and Hrdlicka’s parental rights to T.T. and S.M., and adjudicated C.T.
dependent-neglected. Thereafter, DHS filed a petition to terminate the couple’s parental
rights to C.T. Among the grounds pled was that their parental rights had been involuntarily
terminated as to C.T.’s sibling.
On April 23, 2009, the court held a termination hearing regarding appellant’s and
Hrdlicka’s parental rights to C.T. Both failed to appear. Appellant’s attorney informed the
court that appellant stated that he was sick in the hospital with pneumonia; however, no
medical proof was offered.
At the hearing, the court heard testimony from two of the witnesses who testified in
the previous termination hearing regarding T.T. and S.M. DHS social-service aide Tamara
Stricklin and CASA worker Ruth Weatherwax essentially echoed their testimony from the
prior hearing, which is set out in the related opinion. Tadlock v. Arkansas Dep’t of Human
Servs., 2009 Ark. App. ___, ___ S.W.3d ___. Stricklin added that she was concerned that
C.T. appeared “small” when he was removed from the home and that the mother was
watering down the child’s formula. A new witness, Patty Briseldine, who was C.T.’s foster
mother, testified that one-month-old C.T. weighed seven pounds and was “malnourished”
when he came into her care (he weighed six pounds, nine ounces at birth). Briseldine said
that C.T. looked like a “preemie” with bulging eyes and hanging skin. She also testified, over
Tadlock’s hearsay objections, that “everybody” thought that C.T. was a premature baby and
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that personnel at Children’s Hospital said that C.T. was a “high-risk” and “failure-to-thrive”
baby and that they were “concerned whether or not he would make it.”
During the hearing, appellant’s counsel attempted to elicit testimony from Stricklin and
Weatherwax regarding his compliance with various aspects of the case plan and court orders.
The court did not allow the testimony.
On April 23, 2009, the court entered an order terminating appellant’s (and Hrdlicka’s)
parental rights in C.T. The court incorporated the “entire record” and “all prior testimony”
in the case and found that C.T. was adoptable;1 that there was potential harm in returning
C.T. to appellant; and that grounds for termination existed, including that appellant’s parental
rights were involuntarily terminated as to C.T.’s sibling. Appellant appeals and argues that
1) the termination decision was not supported by sufficient evidence; 2) the court erred in
admitting hearsay testimony from witness Patty Briseldine; and 3) the court erred in
preventing him from adducing evidence of his previous compliance with the case plan.
I. Termination decision
Our Juvenile Code requires that, before parental rights can be terminated, DHS must
prove by clear and convincing evidence that termination is in the child’s best interest and that
at least one statutory ground for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(A) and
(B) (Supp. 2009). 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. Meriweather
1
Tadlock’s attorney stipulated to the child’s adoptability at the hearing.
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v. Ark. Dep’t of Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007). When the burden
of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is
whether the trial court’s finding that the disputed fact was proven by clear and convincing
evidence is clearly 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. Id. We review termination of parental rights
cases de novo. Id.
We conclude that the circuit court did not clearly err in terminating appellant’s
parental rights to C.T. That termination was in C.T.’s best interest is amply demonstrated
by the proof supporting the termination of appellant’s parental rights to T.T. in the
companion case, Tadlock v. Arkansas Dep’t of Human Servs., 2009 Ark. App. ___, ___ S.W.3d
___. That proof showed that appellant continued to have significant contact with Michelle
Hrdlicka after her persistent drug use caused the children to be removed from the home; that
appellant exhibited inappropriate and potentially dangerous anger and impulsiveness; and that
appellant disobeyed court orders to attend NA/AA meetings regularly and obtain a sponsor.
Further, DHS witnesses at the prior hearing testified to their concern that the children in
appellant’s care were not being properly fed. In the present termination hearing, DHS
produced evidence from Patty Briseldine (exclusive of hearsay) that C.T. was low weight and
malnourished when he came into her care at one month of age. These factors, coupled with
the termination of appellant’s parental rights in C.T.’s sibling, see Ark. Code Ann. § 9-27-
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341(b)(3)(B)(ix)(a)(4) (Supp. 2009), provide a sufficient basis for the circuit court’s termination
decision. We therefore affirm the court’s termination order.
II. Hearsay objection
Patty Briseldine was allowed to testify, over appellant’s hearsay objection, that
Children’s Hospital personnel said that C.T. was a “high-risk” and “failure-to-thrive” baby
and that they were concerned about whether C.T. would make it.2 Appellant argues that the
admission of Briseldine’s testimony was error. We review a circuit court’s evidentiary rulings
under an abuse-of-discretion standard. See Hopkins v. Ark. Dep’t of Human Servs., 79 Ark.
App. 1, 83 S.W.3d 418 (2002).
Hearsay is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted. Ark. R. Evid.
801(c). Hearsay is generally inadmissible. Ark. R. Evid. 802. However, there are numerous
exceptions contained in Rule 803 of the Arkansas Rules of Evidence. Among them is the
medical-diagnosis exception, which reads as follows:
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for
purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensation, or the inception or general character of the cause
or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
2
Appellant also objected to Briseldine’s statement that “everybody” thought C.T.
was a premature baby. However, the court did not rule on that objection, and we cannot
reverse in the absence of a ruling. Tech. Partners, Inc. v. Regions Bank, 97 Ark. App. 229,
245 S.W.3d 687 (2006).
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Ark. R. Evid. 803(4). The circuit court applied the Rule 803(4) exception in allowing
Briseldine’s testimony. We hold that the court abused its discretion in doing so.
The basis for the medical-diagnosis hearsay exception is the patient’s strong motivation
to be truthful in giving statements for the purpose of diagnosis and treatment. Flores v. State,
348 Ark. 28, 69 S.W.3d 864 (2002) (emphasis supplied). The exception does not apply when
the statement is not made by the patient, or by someone in a special relationship with him,
to a medical care provider for that purpose. See Benson v. Schuler Drilling Co., 316 Ark. 101,
871 S.W.2d 552 (1994); Meins v. Meins, 93 Ark. App. 292, 218 S.W.3d 366 (2005). In the
present case, there is no evidence that the statements of the Children’s Hospital personnel
were made by a patient for purposes of treatment or diagnosis. Briseldine’s testimony
regarding those statements is therefore hearsay.
However, erroneous admission of hearsay is subject to a harmless-error analysis. See
generally Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). In this case, we deem the
error in admitting Briseldine’s hearsay testimony harmless. The testimony took nothing away
from the remaining evidence that very clearly supported termination, particularly the proof
adduced in the companion case and Briseldine’s nonhearsay testimony about C.T.’s poor
condition when he came into her care. In fact, the hearsay evidence is somewhat cumulative
to Briseldine’s own observations about C.T.’s low weight and his appearing to be a premature
baby. We will not reverse if the hearsay evidence is cumulative of other evidence admitted
without objection. Meins v. Meins, supra. Accordingly, we decline to reverse on this point.
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Appellant also contends that Briseldine’s testimony was at odds with C.T.’s medical
evaluation, which did not mention low weight or malnutrition. However, C.T. was
evaluated at the age of two months, after he had been in Briseldine’s care for several weeks.
Briseldine’s observations concerned C.T. at one month of age, when he first came into her
care after being removed from appellant’s household. We defer to the circuit court to resolve
conflicts in the evidence. See Jones-Lee v. Ark. Dep’t of Human Servs., 2009 Ark. App. 160,
___ S.W.3d ___.
III. Exclusion of compliance evidence
During the termination hearing, appellant attempted to present evidence that he had
complied with the case plan and that he had obtained transportation. The court did not allow
the evidence because DHS’s petition was based on the termination of parental rights to a
sibling rather than appellant’s noncompliance with the case plan. Appellant argues that the
court’s exclusion of his evidence merits reversal. We disagree.
While it might have been the better procedure for the court to admit appellant’s
evidence, we see no prejudice to appellant in the court’s not doing so. See Howell v. Ark.
Dep’t of Human Servs., 2009 Ark. App. 612, ___ S.W.3d ___ (requiring a showing of
prejudice for reversal on an evidentiary ruling). The court had already heard appellant’s
evidence in this regard at the prior termination hearing, and the court’s order in this case states
that the court considered and reviewed all prior testimony. Furthermore, appellant has
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included the prior hearing testimony in his brief in this case, and we have given it due
consideration in our de novo review. It does not warrant reversal of the termination order.
Affirmed.
KINARD and BAKER, JJ., agree.
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