Tapp v. Arkansas Department of Human Services

2017 Ark. App. 216, 518 S.W.3d 725, 2017 Ark. App. LEXIS 232
CourtCourt of Appeals of Arkansas
DecidedApril 5, 2017
DocketCV-16-1081
StatusPublished
Cited by2 cases

This text of 2017 Ark. App. 216 (Tapp 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
Tapp v. Arkansas Department of Human Services, 2017 Ark. App. 216, 518 S.W.3d 725, 2017 Ark. App. LEXIS 232 (Ark. Ct. App. 2017).

Opinions

WAYMOND M. BROWN, Judge

| Appellant appeals from the circuit court’s adjudication of M.H., born 8/14/2001, as dependent-neglected by appellant. Appellant’s sole argument on appeal is that there was insufficient evidence to support the circuit court’s finding of dependency-neglect of M.H. by appellant. We affirm.

The Arkansas Department of Human Services (DHS) received a call for DHS assistance with Larry Tapp, son of appellant, on May 26, 2016.1 A family-services worker went to the home where she was advised by M.H. that M.H. and her sixteen-year-old boyfriend were, living together in Larry’s home; that appellant, her grandmother, knew her boyfriend was living there; that there had been an altercation in which Larry “grabbed her by the back of the neck” and pushed her head into “the back of a door causing injury to 1 {¡her forehead” after "Larry came home and “got mad” because she had not “made any drinks”;2 that Larry used marijuana and had offered marijuana to her, smoking it with her once; that they were sleeping on an air mattress on the living room floor; and that she did not think the house was fit to live in. The family-services worker interviewed appellant, who advised that she has custody of M.H., which she has had since M.H. was seven years old; had not gone to check Larry’s house—had “never been”—because she and Larry do not “get along” and so she does not go to his house; did not know the condition of Larry’s home; and suspected that Larry was doing drugs, but allowed M.H. to go there because “she [could not] do anything about it.” She denied knowing that M.H.’s boyfriend was living in the home.

Finding the home “cluttered,” “dirty,” and “littered,” among other things, and citing health and safety concerns for M.H. stemming from her boyfriend living in the home, appellant’s failure to go to the home to check its appropriateness, and reported drug use by Larry, the family-services worker took a seventy-two-hour hold on M.H. on May 26, 2016. DHS filed its petition for emergency custody and dependency-neglect against M.H.’s mother and appellant, as her custodian, on May 31, 2016. The circuit court entered its ex parte order for emergency custody on the same date.

A probable-cause hearing was held on June 7, 2016, and in its June 29, 2016 order, the circuit court found that probable cause existed for M.H.’s removal “specifically, due [to] the custodian/grandmother allowing the juvenile to stay in a home that was not a suitable | ^environment because of the environmental conditions and being allowed to have inappropriate contact with her sixteen-year-old boyfriend, as well as being in the presence of domestic violence in the home of the putative father Larry Tappt.]” It also found that there was probable cause that the emergency conditions that necessitated M.H.’s removal continued so that M.H. would remain in the custody of DHS. The circuit court specifically stated that this finding was “due to failure of the custodian to protect the child, and the conditions of, the home, of the putative father, including violence in the home.” Appellant was thereby ordered to attend parenting classes, obtain and maintain safe, stable, and appropriate housing, and keep DHS apprised of her current contact information.

Following an August 3, 2016 hearing, the circuit court entered its adjudication order on September 23, 2016,' in which it adjudicated M.H. dependent-neglected by virtue of being “at substantial risk of serious harm as a result of neglect perpetrated by [appellant], her custodian.” With regard to appellant, the circuit court specifically found that she “failed to take action to protect [M.H.] from abuse and neglect by Larry Tapp”; and “failed to provide [M.H.] with shelter that did not pose a risk to her health and safety and failed to appropriately supervise [M.H.], permitting [M.H.] to be in circumstances at the home of Larry Tapp that were dangerous and put [M.H.] at risk of harm.” The order went on to state:

The Court finds that Wilma Tapp has been the legal custodian of [M.H.] for the past seven years and that [M.H.] has been living with her. Wilma Tapp testified that'she was moving from an apartment to a house that she was building on some land adjacent to a relative’s home and that during the moving process, she permitted [M.H.’s] 16 year old boyfriend to stay at the apartment. Further, she testified that she knew that the boyfriend was staying with [M.H.] at Larry Tapp’s home because she talked to [M.H.] daily and [M.H.] told her that the boyfriend was staying in the home. Wilma Tapp testified that she knew about Larry Tapp’s history of drug' use Land that she never entered the home where she allowed [M.H.] to stay with Larry Tapp. The Court finds that the conditions of the home were reprehensible and unlivable and that Wilma Tapp does not currently have a home that is appropriate for [M.H,] to reside in.

The goal of the case was reunification, and appellant was ordered to obtain and maintain stable and appropriate housing, complete intensive parenting classes, have a psychological evaluation, complete any counseling recommended from the evaluation, and otherwise follow the' case plan. This timely notice of appeal followed.3

Adjudication hearings are held to determine whether the allegations in a dependency-neglect petition are substantiated by the proof.4 The DHS has the burden of proving that the children are dependent-neglected by a preponderance of the evidence.5 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.6

| ¿The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings.7 We review the circuit court’s findings of fact de novo and will not set them aside unless they are clearly erroneous.8 A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed.9 With regard to testimonial evidence, the appellate court gives a high degree of deference to the circuit court, which is in a far superior position to observe the parties before it, and we defer to the trial judge’s evaluation of the credibility of witnesses.10 Consequently, unless determined to be clearly erroneous, a trial court’s finding will be left undisturbed on appeal.11

Appellant argues on appeal that there was insufficient evidence to support the circuit court’s finding of dependency-neglect of M.H. by appellant. In support of this argument, appellant specifically states that while she had custody of M.H., M.H. was visiting Larry at the time DHS became involved, and DHS had had no prior involvement with appellant before this incident. Appellant essentially argues that because the issues giving rise to M.H.’s ^removal occurred in Larry’s home, M.H.’s adjudication as dependent-neglected should not have been attributed to her. Additionally, she argues that DHS failed to prove that Larry hit M.H. or that he used drugs and only proved that Larry’s home was dirty and that M.H.’s boyfriend stayed overnight in the home, which she argues is insufficient. This court disagrees.

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Related

Emily Reeves v. Arkansas Department of Human Services and Minor Child
2020 Ark. App. 72 (Court of Appeals of Arkansas, 2020)
Tapp v. Arkansas Department of Human Services
2017 Ark. App. 216 (Court of Appeals of Arkansas, 2017)

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Bluebook (online)
2017 Ark. App. 216, 518 S.W.3d 725, 2017 Ark. App. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tapp-v-arkansas-department-of-human-services-arkctapp-2017.