Brewer v. Arkansas Department of Human Services

43 S.W.3d 196, 71 Ark. App. 364, 2001 Ark. App. LEXIS 292
Court of Appeals of Arkansas·Decided April 25, 2001·No. CA 00-98·Published·Cited by 60 cases

Opinions

Sam BIRD, Judge.

In a previous opinion, Brewer v. Arkansas Dep’t of Human Servs., 71 Ark. App. 364, 32 S.W.3d 22 (2000), we considered an appeal from the decision of the White County Chancery Court, Juvenile Division, which found that Logan Brewer is a dependent-neglected child and refused to order reunification services or place Logan in the home of his paternal grandmother. The points of appeal were raised in separate briefs filed by appellants. We reversed only on the point raised individually by Cheryl Brewer, agreeing that the trial court erred in refusing to order reunification services. Appellee, Arkansas Department of Human Services, now has filed a petition for rehearing, in which it makes an argument, supported by persuasive authority, that our original decision was erroneous. After having carefully reconsidered the issue, we agree with ADHS. Therefore, we grant the petition for rehearing and issue this substituted opinion.

Logan was born to Cheryl and Marvin Brewer on August 26, 1999. On August 27, 1999, the Arkansas Department of Human Services (ADHS) filed a petition for emergency custody of the child, alleging that he is dependent-neglected as defined by Ark. Code Ann. § 9-27-303(15) (Supp. 1999). ADHS based its request for emergency custody on the fact that Cheryl’s other child had been previously adjudicated dependent-neglected and that no reunification services were ordered. The chancellor granted ADHS’s petition, and on September 2, 1999, the chancellor found that there was probable cause for emergency custody to continue until the adjudication hearing scheduled for October 7, 1999.

The adjudication hearing recounted the numerous injuries suffered by Logan’s nineteen-month-old sibling, Makila. Makila was airlifted from Searcy to Arkansas Children’s Hospital in Little Rock. When she arrived, she was placed on a ventilator but remained in danger of death. Makila presented with a low blood count and a large hematoma on her back that was the likely result of a direct blow to the back. A pediatrician at the hospital noted that Makila had multiple bruises of different ages and stages covering her body. The pediatrician testified that the child had bruises on the tops of her ears, around her eyes, and along her abdomen, legs, and arms. The child also exhibited two black eyes, tiny rectal tears consistent with sexual abuse, and bruising on her labia majora. Makila also suffered from retinal hemorrhages in both eyes, had fiver enzymes three to four times normal levels, and required a blood transfusion and intravenous fluids. Based on these observations, the pediatrician ordered that x-rays, bone scans, and a CT scan be performed on the child.

A radiologist testified that the CT scan revealed bleeding around Makila’s brain in the subdural space. The scan revealed fresh bleeding on the left side of the brain and evidence of older bleeding on the right side of the brain, indicating repeated trauma. The doctor testified that injuries of the type suffered by Makila were usually only seen in high-speed vehicle accidents and in instances where a child has been shaken. A skeletal survey revealed an old left-femur fracture. A later bone scan revealed that both of the child’s ulnas had been fractured. The radiologist testified that the fractures were consistent with fractures a child receives from defending herself from direct blows. The child also suffered a fracture of the left scapula and injuries to her rib cage. The radiologist testified that the injuries to the rib cage were consistent with a child being squeezed while being shaken; the injuries were likely suffered within three to five days of the child’s being admitted to the hospital.

Dr. Melinda Markham testified that Cheryl stated that she was not at home when Makila was picked up by the ambulance, but that Cheryl thought the ambulance was called because Makila might have suffered a seizure. According to Dr. Markham, Cheryl stated that she was aware that Marvin had been spanking the child and hitting her about the head. Dr. Markham also stated that Cheryl indicated that she had spanked Makila. Dr. Markham further testified that Cheryl admitted that Marvin had to restrain her from “going after” the child on one occasion and that Cheryl had told Marvin, “We have to stop,” on the way to the hospital.

Based on this testimony and photographs showing Makila’s condition when she was admitted into the hospital, the court concluded that Cheryl and Marvin were unfit parents and that Logan was a dependent-neglected child. As mentioned previously, the court also refused to order reunification services.

Appellants argue that the trial court erred in basing its finding that Logan is a dependent-neglected child solely on alleged abuse to his sibling. They contend that a finding that a child is dependent-neglected must he based on the treatment of the child at issue. For a second point, appellant Cheryl Brewer argues that the trial court erred in refusing to order reunification services.

The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark. Code Ann. § 9-27-325(h)(2)(B) (Supp. 1999). We review a chancellor’s findings of fact de novo, and will not set them aside unless they are clearly erroneous, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses. Ark. R. Civ. P. 52(a). See also Johnson v. Arkansas Dep’t of Human Serv., 55 Ark. App. 392, 935 S.W.2d 589 (1996). A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).

A dependent-neglected juvenile is defined as “any juvenile who as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness is at substantial risk of serious harm.” Ark. Code Ann. § 9-27-303(15)(A)(Supp. 1999). Arkansas Code Annotated section 9-27-302(2) (B) provides that one purpose of the Juvenile Code is “[t]o protect a juvenile by considering the juvenile’s health and safety as the paramount concerns in determining whether or not to remove the juvenile from the custody of his parents or custodians....”

Here we have overwhelming evidence that Logan’s sister, Makila, was abused by Cheryl or Marvin, or both. Even if one of the parents could successfully deflect blame for the actual injuries Makila suffered to the other parent, the uncontroverted testimony establishes that her injuries were noticeable and inflicted over a long period of time. Clearly a parent who does not notice such obvious signs of abuse of a child living within his or her home is unfit.

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Brewer v. Arkansas Department of Human Services, 43 S.W.3d 196, 71 Ark. App. 364, 2001 Ark. App. LEXIS 292 (Ark. Ct. App. 2001).

43 S.W.3d 196 (Brewer v. Arkansas Department of Human Services) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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