Hopkins v. Arkansas Department of Human Services

83 S.W.3d 418, 79 Ark. App. 1, 2002 Ark. App. LEXIS 426
CourtCourt of Appeals of Arkansas
DecidedAugust 28, 2002
DocketCA 01-960
StatusPublished
Cited by32 cases

This text of 83 S.W.3d 418 (Hopkins 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
Hopkins v. Arkansas Department of Human Services, 83 S.W.3d 418, 79 Ark. App. 1, 2002 Ark. App. LEXIS 426 (Ark. Ct. App. 2002).

Opinion

Josephine Linker Hart, Judge.

Appellant, Jennifer Hopkins, appeals the circuit court’s adjudication of her seven-year-old son, M.J., as dependent-neglected, arguing that there was insufficient evidence to support the adjudication. Appellant also raises two evidentiary arguments, first arguing that the court erred in admitting certain medical records over her hearsay objection and second arguing that the court abused its discretion in permitting a physician to render an opinion regarding burns suffered by M.J. even though the doctor was not qualified as an expert witness. We affirm.

A “dependent-neglected juvenile” is defined in pertinent part 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). 1 “Neglect” includes acts or omissions of a parent that constitute “[fjailure to appropriately supervise the juvenile which results in the juvenile’s being left alone at an inappropriate age or inappropriate circumstances which put the juvenile in danger. ...” Ark. Code Ann. § 9-27-303 (33) (G) (Repl. 2002) (amending Ark. Code Ann. § 9-27-303(27)(G) (Supp. 1999)).

Dependency-neglect must be established by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(B) (Repl. 2002). “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.” Brewer v. Arkansas Dep’t of Human Servs., 71 Ark. App. 364, 367-68, 43 S.W.3d 196, 199 (2001). “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.” Id. at 368, 43 S.W.3d at 199.

At the adjudication hearing, appellee Arkansas Department of Human Services (DHS) presented testimony from Dr. Jeannie Doland, a resident at the University of Arkansas for Medical Sciences (UAMS). Dr. Doland testified that in the early hours of May 20, 2001, while on call for the burn unit at Arkansas Children’s Hospital (ACH), she treated M.J. for second-degree burns to his buttocks. She testified that the burns were consistent with a scald burn. Dr. Doland further testified that appellant told her that she did not witness the injury, but that she had sent him to take a bath, that he had slipped and fallen into the bathtub, and that he was burned by the water in the bathtub. The doctor, however, concluded that the explanation was not consistent with the injury. She noted that the burn was localized, and she could not imagine how a child could fall in this way and sustain only a localized injury. On cross-examination, however, Dr. Doland admitted that it was possible that the injury could have occurred if the child fell-in the bathtub with only his buttocks touching the water. Dr. Doland also noted that red marks on the edges of the scald wound were consistent with friction burns, such as those that could be caused by an object small in diameter, like a cord or fishing pole, moving at a rapid velocity. She testified that the marks were inconsistent with a scald burn or a fall in a bathtub, and no other explanation was given to her.

DHS further presented testimony from a child-abuse investigator with the Arkansas State Police, who testified about his examination of the plumbing at the residence where M.J.’s injury occurred. According to him, the temperature of the water coming out of the bathtub’s faucet was 158 degrees. He testified that while the hot-water faucet handle had a regular handle on it, a vise grip served as the cold-water faucet handle. He further testified that he did not believe that a child of M.J.’s age would have any difficulty using the vise grip to turn on the cold water, but he also stated that a child should be supervised around such hot water. The investigator further testified that the water was hot enough to burn a person because, while he was running water, he scalded his own finger. At one point during his testimony, he described the child’s injury as “accidental,” but further stated that he did not complete the investigation and could not make a final determination.

Diane Tillman, who is appellant’s mother-in-law and M.J.’s grandmother, testified for appellant. She stated that on May 19, 2001, appellant and her children came to her residence for a barbeque. Appellant, who remained in a front room in the house, told M.J. and one of her other children to take a bath. M.J. subsequently returned to appellant while wearing a towel, and appellant discovered that M.J. had been burned. Appellant later took M.J. to the hospital. Appellant’s sister-in-law, Christine Hopkins, who was also in the residence when M.J. was injured, testified that M.J. would not have known how to turn on the cold water.

M.J. also testified at the hearing. He testified that he was burned when he slipped from the side of the bathtub and fell into the hot water while turning off the water. He further stated that he had turned on the water and had run only hot water into the bathtub. He further testified that he did not know what caused the other marks on his buttocks. He also recalled that he had previously told other persons that his brother had pushed him into the bathtub.

In its adjudication order filed July 23, 2001, the circuit court held that M.J. and appellant’s two other children, C.J. and C.J., were dependent-neglected and in need of services from DHS. The court further concluded that return of the children to appellant would be contrary to the welfare of the children and that continuation of custody with DHS was in the best interests of and necessary for the protection of the children. In reaching its decision, the court noted that while the court “may not be able to ascertain who inflicted the burn injury to [M.J.], the Court can determine that the injury is at variance with the history given.” The court found that the “explanation given that this child lowered himself into scalding water and then pulled himself out without any splash marks to not be plausible based on the injury and the child’s size and age.” The court further concluded that “at the very least we have a mother who, due to her lack of supervision of this child, was negligent and therefore, had a part in this incident, either based on her lack of concern for the child’s physical safety, or possibly her failure to protect him.” The court also found that M.J.’s two siblings, C.J. and C.J., were “at substantial risk of harm based on the injury inflicted on” M.J. and that it was not safe to return the children to the mother’s care until services were provided.

On appeal, appellant argues that the circuit court’s finding that M.J. was dependent-neglected is clearly erroneous. She argues that Dr. Doland’s testimony regarding whether the history given was inconsistent with M.J.’s injuries was contradictory and therefore insufficient to establish that M.J. was dependent-neglected. Appellant further asserts that there was no evidence that she was aware of the extreme hot-water temperature or knew of the vise grip handle controlling cold water, as the injury occurred during a visit to her mother-in-law’s residence while appellant was in another room.

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Bluebook (online)
83 S.W.3d 418, 79 Ark. App. 1, 2002 Ark. App. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-arkansas-department-of-human-services-arkctapp-2002.