JEREMIAH CALAHAN v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILD
No. CV-13-256
ARKANSAS COURT OF APPEALS
SEPTEMBER 18, 2013
2013 Ark. App. 508
HONORABLE ANN HUDSON, JUDGE
DIVISION II; APPEAL FROM THE MONROE COUNTY CIRCUIT COURT [NO. JV-10-5]; AFFIRMED; MOTION TO BE RELIEVED GRANTED
The parental rights of Jeremiah Calahan to his daughter, L.J.C., born February 16, 2010, were terminated by an order entered December 26, 2012.1 Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and
This case began in February 2010 when DHS filed a petition for emergency custody of L.J.C. on two bases: that L.J.C.’s sister, L.C., died at eleven months of age in Virginia as a result of subdural hematomas from being shaken; and that Calahan’s stepson, L.D., was placed in foster care in Virginia due to multiple injuries he sustained while in the Calahans’ care, including healed burn marks, broken bones, bruises, and blunt-force trauma to the abdomen that resulted in a perforated intestine requiring emergency surgery. The Calahans maintained that L.D.’s injuries were self-inflicted; by contrast, L.D. had not sustained any unusual injuries after being removed from the Calahan home. The trial court granted DHS’s request for emergency custody. An adjudication hearing was held in April 2010, at which time L.J.C. was adjudicated dependent/neglected based on the death of L.C. and the severe injuries sustained by L.D. A permanency-planning hearing was hеld in February 2011; Calahan was not present. The trial court found that L.J.C. had been subjected to aggravated circumstances and that there was little likelihood of reunification; the goal of the case was changed from reunification to termination. A petition for termination of pаrental rights was filed in April 2011, and a hearing was held in September 2012 on that petition. After the hearing, the trial court found that it was in the best interest of L.J.C. for Calahan’s parental rights to be terminated and that DHS had proven grounds for terminating Jeremiah’s parental rights under
At the termination hearing, Lisa Wall, a child protective-services investigator with the City of Virginia Beach Department of Human Servicеs, testified that she had been involved with three investigations of Calahan, that she had interviewed him in April and May 2009 regarding the blunt-force abdominal injuries sustained by L.D., and that Calahan had maintained that L.D.’s injuries were self-inflicted. Wall said that she made findings against Calahan for internal injuries, physical abuse, physical neglect, and inadequate supervision based on L.D.’s injuries; she further stated that since L.D. had been placed in foster care, he had not sustained any significant injuries. She testified that while the investigation on L.D. was still open and active, she received another referral in May
Annette Scott, an employee of Arkansas DHS’s Children and Family Services, testified that neither of the Calahans completed in-hоme counseling; that they were both noncompliant with the case plan; that the grandparents did not complete the paperwork for relative placement; and that no other relative inquired about relative placement. She stated that L.J.C. was adoptable.
Jeremiah Calahan testified that he was still married to Julie. When asked about L.D.’s injuries, Calahan continued to assert that L.D.’s injuries were self-inflicted. He stated that after L.D. was removed from their home, he and Julie made arrangements with Child Protective Services in Virginia for L.C. to remain in the home by having his brothеr, Stephen, move into the house with them. It was after Stephen moved in that L.C. suffered her fatal injuries.
In Myers v. Arkansas Department of Human Services, 2011 Ark. 182, 380 S.W.3d 906, our supreme court set forth the standard of review in appeals concerning the termination of parental rights:
Our standard of review in cases involving the termination of parental rights is well established.
Arkansas Code Annotated section 9-27-341(b)(3) (Repl. 2009) requires an order terminating parental rights to be based upon clear and convincing evidence. Clear and convincing evidence is that degree of proоf that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Camarillo-Cox v. Ark. Dep‘t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the trial court’s finding that the disputed fact was рroven by clear and convincing evidence was clearly erroneous. Id. 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. Such cases are reviewed de novo on appeal. Wade v. Ark. Dep‘t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). However, we do give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Dinkins v. Ark. Dep‘t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best intеrest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parеnt.
Here, L.J.C.’s siblings had suffered severe abuse—even fatal in L.C.’s case—while in the care of Jeremiah and Julie Calahan. In the adjudication order, the trial court found
Adverse Rulings
There were several rulings during the course of the termination hearing adverse to Calahan. First, during Lisa Wall’s testimony, she began to testify as to what a physician had told her caused L.D.’s injuries; Calahan’s attorney objected on the basis that it was hearsay and that Calahan could not confront the doctor with regard to his opinions because the doctоr was not being called as a witness. The trial court overruled the
The next adverse ruling occurred when Wall was testifying about the injuries L.D. suffered that caused his removаl from the Calahans’ home and whether L.D. had suffered any further injuries after being removed from the home. Calahan’s attorney objected on the basis that that information was not relevant to the termination hearing. The trial court overruled the objection. A circuit court’s evidentiary rulings are reviewed for an abuse of discretion. Cotton v. Arkansas Dep‘t of Human Servs., 2012 Ark. App. 455, 422 S.W.3d 130. “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact than is of consequence to the determination of the action more probable or less probable than it would be withоut the evidence.”
During Calahan’s testimony, counsel for DHS showed him the report from the psychological examination performed on him and asked him to read from it. Calahan’s counsel objected on the basis that his client could not identify the report, and the document had to be authenticated in order to be introduced or read into the record. The trial court ruled that DHS could proceed regarding the diagnosis because Calahan recalled
Next, DHS counsel asked Calahan if he was аware that L.D. had indicated that Calahan was the person who punched him in the stomach. Calahan’s counsel objected on the basis of hearsay, and the trial court ruled that the question had been asked and answered earlier. Calahan then responded that L.D. would sit and hit himself, and “оther people also seen that.” DHS objected on the basis of hearsay, which the trial court sustained. Calahan then testified that L.D. was caught at the hospital hitting himself and that the hospital employees saw L.D. hit himself. DHS moved to strike that testimony, which the trial court granted. As Calahan’s counsel points out, it is unclear from the testimony whether other people told Calahan that they had seen L.D. hitting himself, or if other people were present when Calahan saw L.D. hitting himself and saw it as well. Even if the statement was not hearsay and should have been allowed into evidencе instead of being stricken, there was no prejudice. In the adjudication order, the trial court found that Calahan had caused L.D.’s injuries, a finding that was not appealed. Therefore, these adverse rulings do not present any meritorious issues for reversal.
Next, Calahan testified that he was not sure how long it was between L.D. being injured and when L.C. was taken to the hospital. As he continued to testify about L.C., his counsel objected to any further testimony about L.C. because DHS had previously
The last adverse ruling occurred when Calahan testified that L.D. had been diagnosed with oppositional defiant disorder (ODD) and was bipolar. DHS objected to Calahan giving diagnоses, and the trial court sustained the objection. Calahan’s counsel then rephrased the question, asking what medications L.D. was taking, and Calahan was allowed to testify that the medications were for ODD and bipolar disorder. Therefore, L.D.’s diagnoses were ultimately entered into evidence.
Calahan’s Pro Se Points
Calahan’s statement of points is an argument that his attorney was ineffective because she believed that he was guilty and did not try to defend him at the hearing. However, this objection was not made to the trial court, and therefore it cannot be addressed now on appeal. Arkansas appellate courts will not consider a claim of ineffective assistance of counsel as a point on appeal unless it was first raised in the trial court. Weaver v. Arkansas Dep‘t of Human Servs., 2011 Ark. App. 680.
Affirmed; motion to be relieved granted.
WOOD and BROWN, JJ., agree.
Deborah R. Sallings, Arkansas Public Defender Commission, for appellant.
No response.
DAVID M. GLOVER
Judge