Hilburn v. Ark. Dep't of Human Servs.

558 S.W.3d 885
CourtCourt of Appeals of Arkansas
DecidedSeptember 19, 2018
DocketNo. CV-18-323
StatusPublished
Cited by8 cases

This text of 558 S.W.3d 885 (Hilburn v. Ark. Dep't of Human Servs.) 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
Hilburn v. Ark. Dep't of Human Servs., 558 S.W.3d 885 (Ark. Ct. App. 2018).

Opinion

ROBERT J. GLADWIN, Judge

Appellant Laura Hilburn appeals the January 25, 2018 adjudication order entered by the Washington County Circuit Court adjudicating her child, T.M., dependent-neglected. Hilburn argues that the evidence does not support the circuit court's finding that T.M. was dependent-neglected. We affirm.

I. Facts

Thirty-year-old Hilburn has given birth to eight children. Her parental rights as to the oldest two children previously have been terminated, and the remaining six-including one-year-old C.H. and newborn T.M.-are in foster care. On December 27, 2016, the Arkansas Department of Human Services (ADHS) removed five-day-old C.H. from Hilburn's custody. Three months later, the circuit court conducted an adjudication hearing at which time the circuit court found that, given Hilburn's methamphetamine addiction and usage, C.H. was dependent-neglected. During the six months that followed, ADHS performed drug screens on Hilburn at least seven times. She failed each screen, testing positive for THC on March 21; for methamphetamine, amphetamines, and THC on April 4, and June 9; for THC on June 27, August 4, and August 10; and for methamphetamine, amphetamines, and THC on September 6.

Three months after Hilburn's last positive methamphetamine drug screen, she gave birth to T.M. on December 13, 2017. T.M. was not born with drugs in his system and does not seem to be suffering any adverse effects. Although Hilburn also tested negative at the time of T.M.'s delivery for any illegal substances, given her history of drug abuse coupled with her recent illegal drug use while pregnant, ADHS assumed emergency custody of two-day-old T.M.

T.M. was removed from the hospital by ADHS on an emergency basis because of neglect and parental unfitness to the juvenile, a sibling, or other juvenile. The affidavit accompanying the order stated that *887Hilburn had used drugs throughout the pregnancy and had other terminations regarding her parental rights. One month later, the circuit court conducted an adjudication hearing in which it found that as a parent, Hilburn was unfit:

The Court finds, by a preponderance of the evidence, that [T.M.] is dependent/neglected as defined by the Arkansas Juvenile Code, as [T.M.] is at substantial risk of serious harm as a result of ... [parental unfitness].
Such finding is based on the Court's determination, after considering the evidence presented at this hearing, that these allegations in the petition and affidavit are true and correct. Specifically, in the open foster care case of [T.M.'s] half-sibling, [C.H. (72JV-16-952) ], Hilburn continued to test positive for illegal drugs-including methamphetamine-during the course of her pregnancy with [T.M.].
In the permanency planning hearing order from [72JV-16-952], and in the review hearing order from [72JV-16-952], the Court found that [Hilburn] tested positive for methamphetamine while she was pregnant with [T.M.]....
The Court finds that [Hilburn] was using methamphetamine while knowingly pregnant with [T.M.]. [Hilburn] testified today that the last time she used methamphetamine was in September-[Hilburn] was approximately seven (7) months pregnant with [T.M.] at that time. [Hilburn] had (and has) another [dependency-neglect] case on sibling [C.H. (72JV-16-952) ] which is open-[Hilburn] was [unreadable] is receiving services and drug screens throughout [C.H.'s] case and continued to use drugs[.]

On January 18, 2018, the circuit court ultimately adjudicated T.M. dependent-neglected due to Hilburn's drug use, and T.M. remained in foster care. Appellant filed a timely notice of appeal on January 29, 2018.

II. Standard of Review and Applicable Law

Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1)(A) (Supp. 2017). Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-325. In dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Ward v. Ark. Dep't of Human Servs. , 2018 Ark. App. 376, 553 S.W.3d 761. 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. In reviewing a dependency-neglect adjudication, we defer to the circuit court's evaluation of the credibility of the witnesses. Id. The focus of an adjudication hearing is on the child, not the parent; at this stage of a proceeding, the Juvenile Code is concerned with whether the child is dependent-neglected. Id.

Arkansas Code Annotated section 9-27-303(18)(A) defines a "dependent-neglected juvenile" as

any juvenile who is at substantial risk of serious harm as a result of the following acts or omissions to the juvenile, a sibling, or another juvenile:
(i) Abandonment;
(ii) Abuse;
(iii) Sexual abuse;
(iv) Sexual exploitation;
(v) Neglect;
(vi) Parental unfitness; or *888(vii) Being present in a dwelling or structure during the manufacturing of methamphetamine with the knowledge of his or her parent, guardian, or custodian.

A child is dependent-neglected when the preponderance of the evidence shows that a child is at a substantial risk of serious harm due to parental unfitness. Ark. Code Ann. § 9-27-303(18)(A)(vi). Illegal drug use by a parent makes the parent unfit. See Ward v. Ark. Dep't of Human Servs. , 2011 Ark. App. 550, 2011 WL 4388579 ; Maynard v. Ark. Dep't of Human Servs. , 2011 Ark. App. 82

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Bluebook (online)
558 S.W.3d 885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilburn-v-ark-dept-of-human-servs-arkctapp-2018.