Hardy v. Arkansas Department of Human Services

351 S.W.3d 182, 2009 Ark. App. 751, 2009 Ark. App. LEXIS 959
CourtCourt of Appeals of Arkansas
DecidedNovember 11, 2009
DocketCA 09-726
StatusPublished
Cited by5 cases

This text of 351 S.W.3d 182 (Hardy 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
Hardy v. Arkansas Department of Human Services, 351 S.W.3d 182, 2009 Ark. App. 751, 2009 Ark. App. LEXIS 959 (Ark. Ct. App. 2009).

Opinion

JOHN B. ROBBINS, Judge.

|) Karen Hardy brings this appeal from the order of the Ashley County Circuit Court in a dependency-neglect matter that ordered no reunification services to Hardy and awarded temporary custody of Hardy’s daughter to Hardy’s parents. For reversal, Hardy argues that the circuit court erred in sua sponte ordering no reunification services and in awarding custody to her parents when there had been no material change in circumstances. The Arkansas Department of Human Services and the attorney ad litem have filed a joint brief in which they acknowledge that statutory law required that Hardy be notified prior to the hearing that no reunification services would be ordered. DHS and the attorney ad litem do not address the custody issue. Because we agree with Hardy’s first point, we reverse and remand for further proceedings without reaching Hardy’s second point.

hBackground

Hardy and Donny Ray Hall are the parents of two children, a daughter, A.L.H., born June 9, 2003, and a son, J.T.H., born January 11, 2001. Hardy and Hall were divorced in Ashley County by decree entered on April 24, 2007. That decree incorporated a settlement agreement that provides that the parties have two children and that Hall pay child support of $205 per week. Thereafter, Hardy married Thomas Hardy.

In September 2007, DHS opened a protective-services case based on A.L.H. being sexually abused by Thomas Hardy. The present case began on October 9, 2008, when DHS received a referral that A.L.H. was again being sexually abused by Thomas Hardy when she was left alone with him. DHS exercised a seventy-two-hour emergency hold on the children on October 10, 2008. The circuit court granted DHS emergency custody and later found probable cause for entry of the emergency order.

On November 20, 2008, the court held an adjudication hearing and found the children to be dependent-neglected. The court found that Hardy was aware of the abuse because A.L.H. had told her the same thing that she told the DHS workers. The court also found that Hardy was told during the earlier protective-services case that the children would be removed from her custody if she allowed Thomas Hardy to return to the household. Hardy was allowed supervised visitation with the children.

hOn December 12, 2008, Judge Sam Pope entered an order and a separate document containing separate findings and conclusions, captioned with the style of both the dependency-neglect proceeding and the divorce case. Judge Pope had been asked to preside over the disposition stage of the adjudication hearing. The court found that the details of the earlier 2007 incidents of sexual abuse by Thomas Hardy against A.L.H. were kept from Hall by Karen Hardy because she feared losing custody. Karen Hardy was faulted for not giving enough credence to the 2007 abuse reported by A.L.H. and for allowing Thomas Hardy to return to the home to again abuse A.L.H. The court conditioned the return of J.T.H. to Karen Hardy’s custody on Thomas Hardy remaining out of the home. As to A.L.H., the court found that she should remain in DHS’s custody until the divorce between Karen and Thomas Hardy was finalized and the order of protection was made permanent. Once these contingencies occurred, and the court was satisfied that Karen Hardy had kept Thomas Hardy out of her home, the court intended to return custody of A.L.H. to Karen Hardy.

On January 27, 2009, the divorce decree between Karen Hardy and Thomas Hardy was entered. The decree noted that Karen Hardy was pregnant with an expected due date of June 1, 2009. Thomas Hardy was not to have any visitation pending the further orders of the court. On the same date, the court also entered a final order of protection against Thomas Hardy that was to last until January 27, 2010. Thomas Hardy was not to have any contact, directly or indirectly, with Karen Hardy, including no written, personal, or oral communication.

|Evidence at Trial

The review hearing from which this appeal is taken was held on February 25, 2009. Carveyetta Bridges, the DHS case worker, testified that Hardy was still having email contact with Thomas Hardy. Based on the series of emails, Bridges recommended that A.L.H. remain in foster care. According to Bridges, the emails were dated after Karen Hardy had obtained an order of protection and indicated that she wanted Thomas Hardy to remain part of her life. On cross-examination, Bridges said that Karen Hardy had consistently denied any contact with Thomas Hardy. According to Bridges, one of the emails indicated that Karen Hardy initiated the contact with Thomas Hardy. She also acknowledged that Judge Pope did not order Karen Hardy not to have any contact with Thomas Hardy.

Karen Hardy testified that her divorce from Thomas Hardy had been finalized and that she had been granted an order of protection. She said that the last time she and Thomas Hardy were in the same room together was on October 16, 2008, at a court hearing. She acknowledged that she had talked with him on the phone and had sent him email. She said that she was pregnant with Thomas Hardy’s child, but did not intend to have further contact with him or have him around the children. On cross-examination, Hardy admitted that she testified before Judge Pope that she had no connection with Thomas Hardy. She said that the purpose of the emails was to inform Thomas Hardy of the status of the divorce case and to discuss details of the divorce. Hardy acknowledged that she did not tell DHS that she was | ^having email contact with Thomas Hardy because she was trying to get him served with divorce papers so she could regain custody of her children.

The Circuit Court’s Ruling

On March 31, 2009, the court announced its ruling from the bench. The court found that Hardy could not protect A.L.H., and that it would not be in A.L.H.’s best interest to be reunified with Hardy. The court noted that Hardy had no credibility with the court, and that Hardy’s continued email contact with Thomas Hardy constituted a material change of circumstances. Noting that J.T.H. was autistic and reacted poorly to change, the court allowed J.T.H. to remain in Hardy’s custody. As to A.L.H., the court wanted to listen to the testimony presented before Judge Pope at the earlier disposition hearing. Until that was done, the court, over Hardy’s objection, temporarily placed custody of A.L.H. with the grandparents. Hardy’s visitation was to be supervised by the grandparents. The court then stated that it did not want DHS to pursue the goal of reunification with Hardy, as provided in the earlier order. The court also allowed, over DHS’s objection, the grandparents to intervene in the case to seek permanent custody or guardianship of A.L.H. The court entered its order from the review hearing on March 31, 2009. The court entered an amended order containing a Rule 54(b) certification on April 15, 2009. This appeal followed.

Standard of Review

Because juvenile proceedings are equitable in nature, the standard of review on appeal is de novo. Judkins v. Duvall, 97 Ark.App. 260, 248 S.W.3d 492 (2007). However, we do |finot reverse the circuit court’s findings of fact unless they are clearly erroneous. Id.

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Bluebook (online)
351 S.W.3d 182, 2009 Ark. App. 751, 2009 Ark. App. LEXIS 959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-arkansas-department-of-human-services-arkctapp-2009.