Potterton v. Arkansas Department of Human Services
2017 Ark. App. 454
| Ark. Ct. App. | 2017Background
- Infant B.N. (b. May 25, 2016) was hospitalized in Oct. 2016 with acute skull fractures, subdural hematoma, facial and hand bruising, and older rib fractures.
- DHS placed the child in emergency custody and obtained a probable-cause order barring mother Gabrielle Potterton from contact/visitation.
- At the Dec. 27, 2016 adjudication and disposition hearing the circuit court found B.N. dependent-neglected by clear and convincing evidence, specifically finding Potterton caused the injuries.
- The court also, sua sponte, found Potterton had subjected B.N. to aggravated circumstances and set reunification with a concurrent adoption goal.
- Potterton did not object to the court’s oral aggravated-circumstances finding at the hearing and her attorney declined to add anything when asked.
- On appeal Potterton argued the aggravated-circumstances finding violated due process because DHS never pled that ground and she lacked notice to defend against it; the court held the issue unpreserved and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court’s sua sponte finding of aggravated circumstances violated Potterton’s due-process right because DHS never pled aggravated circumstances | Potterton: DHS failed to plead aggravated circumstances, so she lacked notice and opportunity to defend against that ground | State/DHS: Evidence at adjudication and counsel’s argument put Potterton on notice; moreover Potterton failed to object in court, so the issue is not preserved for appeal | The court held Potterton did not preserve the claim by failing to object at the hearing; appellate review of the due-process argument was barred and the order was affirmed |
Key Cases Cited
- Neves da Rocha v. Ark. Dep’t of Human Servs., 93 Ark. App. 386, 219 S.W.3d 660 (discussing how findings in earlier hearings inform later proceedings)
- Maxwell v. Ark. Dep’t of Human Servs., 90 Ark. App. 223, 205 S.W.3d 801 (issues not raised below generally will not be considered on appeal)
- Walters v. Ark. Dep’t of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (failure to raise challenge below is fatal on appeal, even for constitutional issues)