Draper v. Arkansas Department of Human Services

389 S.W.3d 58, 2012 Ark. App. 112, 2012 Ark. App. LEXIS 211
CourtCourt of Appeals of Arkansas
DecidedFebruary 1, 2012
DocketNo. CA 11-885
StatusPublished
Cited by19 cases

This text of 389 S.W.3d 58 (Draper v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Draper v. Arkansas Department of Human Services, 389 S.W.3d 58, 2012 Ark. App. 112, 2012 Ark. App. LEXIS 211 (Ark. Ct. App. 2012).

Opinion

CLIFF HOOFMAN, Judge.

|, Appellants Johnny and Theresa Draper appeal from the order of the Union County Circuit Court terminating their parental rights to their daughter, K.D. (DOB 2/10/96). On appeal, appellants argue that the trial court’s decision to terminate was clearly erroneous because the Arkansas Department of Human Services (DHS) failed to offer the family meaningful services in the form of counseling. We affirm.

This case first began on December 8, 2009, when DHS received a child-abuse referral about K.D. According to DHS’s affidavit attached to the petition for emergency custody, K.D. and her mother, Theresa Draper, were interviewed that day, and K.D. made the following allegations regarding her adoptive father, Johnny Draper: he required that K.D. leave her bathroom and bedroom doors open; he required that she sleep in a tank top and panties; he watched her while she dressed and changed her clothes; he pulled her shirt up and tickled her when she had no undergarments on; he hugged her in the bathroom when she was |2naked on multiple occasions; he often slapped her bottom when she washed dishes or rose from her seat; he sometimes used his fingers to examine her vagina to see if she was clean and wiped her vaginal area with a baby wipe; he often kissed her on the mouth at bedtime; and he twice grabbed her breasts while they were riding a four-wheeler. Theresa stated that Johnny only comes into the bathroom' when K.D. is naked because K.D. calls him into the room, despite being told not to do so. Theresa further explained that K.D. suffered from bacterial infections in her vaginal area, for which she had sought medical treatment, and that both parents had wiped K.D.’s vagina because of these infections. Theresa indicated that K.D. had recently told her about the sexual abuse allegations and that she immediately confronted her husband, stating that K.D. felt uncomfortable when he hugs her while she is naked. According to the affidavit, K.D. reported that her father was angry and yelled at her when he learned of her allegations, but no further action had been taken by her mother.

DHS took emergency custody of K.D. on December 8, 2009, and probable cause for removal was found at a hearing held on February 9, 2010. The adjudication hearing was held on March 31, 2010. After hearing testimony by all of the parties, the trial court made the following findings: the testimony of K.D.’s doctor was significant in that she stated that she had never told the parents or K.D. that they needed to clean her vaginal area; the doctor further testified that Theresa had phoned her office on two occasions since K.D. was removed, even requesting a prescription for K.D. that was never given to DHS, and the court stated that it viewed these actions as attempts to justify the touching; the court found it difficult to believe that Johnny was powerless to stop K.D. from calling him into her room or bathroom Uwhile she is naked and exchanging hugs, as he claimed in his testimony; the court found from Johnny’s testimony that he made a conscious decision to not grab his daughter’s side as he was about to fall off the four-wheeler but to instead grab her breasts; the court found the evidence that Johnny was fine with K.D. sitting in the lap of a fifty-something-year-old man and playing with his hair not to be reasonable; from the parents’ testimony about Johnny’s reaction to his daughter’s allegations, which was that he got angry, separated the house into his side and her side, and put rules in place about no tickling and no nudity, the court found that he was trying to punish K.D. for the very behavior that she had been trained to exhibit; the court also noted that there were no photos of K.D. taken outside their hotel room from her and her father’s trip to Disney World and that they had shared a bed at Johnny’s suggestion.

From all of this evidence, the trial court inferred that Johnny derived sexual gratification from these acts and noted that all of the rules of the house were followed, except for those that happened to put Johnny in a position to see and touch his daughter while naked. The court thus found that K.D. was dependent-neglected based on the findings that Johnny sexually abused her and that her mother knew of the abuse but failed to protect her. The court further found that K.D. had been subjected to aggravated circumstances due to the sexual abuse. The Drapers attempted to appeal the trial court’s adjudication order, but their notice of appeal was not timely.

After a hearing held in April 2010, the trial court entered a temporary-custody order, placing K.D. in the custody of her aunt, Chris Hearron, who is her biological father’s sister. |4The Drapers were ordered to follow the case plan and obey all orders of the court, to submit to a psychological evaluation, to attend and participate in individual counseling, to attend and participate in family counseling if recommended, and to obtain and maintain stable employment and housing. Johnny was further ordered to complete a sexual-offender assessment and to follow its recommendations. The Drapers had already completed their court-ordered parenting classes at the time of this hearing. Hear-ron was instructed to ensure that K.D. also attend individual counseling. The court further ordered that visitation between K.D. and her mother be supervised and that there continue to be no contact with her father.

A petition for termination was filed by DHS on August 2, 2010, and an amended petition was filed on September 23, 2010. It alleged that there were three grounds for termination: (1) the parents had been found to have subjected K.D. to aggravated circumstances; (2) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that return of K.D. to the custody of her parents was contrary to her health, safety, or welfare and that, despite the offer of appropriate family services, the parents had manifested an incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent return of K.D.; and (3) the court had found K.D. dependent-neglected as a result of neglect or abuse that could endanger her life, sexual abuse, or sexual exploitation, any of which was perpetrated by her parent(s) or stepparents). The petition further alleged facts supporting termination: the aggravated-circumstances finding; the mother arguing with K.D. at visitations; the parents’ failure to provide proof of attending counseling; the mother tape recording her visits with K.D. and ^hiring a private investigator to follow K.D.; the parents’ lack of cooperation with DHS, and them ongoing refusal to accept any blame for the situation; their failure to provide the required documentation to set child support; the mother’s constant disruption of the visitations; the parents’ failure to allow K.D. to obtain personal items belonging to her from their home; the parents’ overt actions to degrade and taunt K.D.; and their failure to comply with all court orders and case plans.

A temporary child-support order was entered on October 18, 2010, directing Johnny to pay $106 per week in child support beginning on October 22, 2010. On December 21, 2010, an ex parte order was entered based upon the attorney ad litem’s request, finding that Theresa’s visitation should be reduced to biweekly based upon KD.’s counselor’s recommendation. The order stated that the counselor reported an adverse effect on K.D. from the visitations and that irreparable harm would result from continued weekly visits against K.D.’s wishes.

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Bluebook (online)
389 S.W.3d 58, 2012 Ark. App. 112, 2012 Ark. App. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/draper-v-arkansas-department-of-human-services-arkctapp-2012.