NICOLE FREDRICK HANNAH v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN
No. CV-13-302
ARKANSAS COURT OF APPEALS, DIVISION III
September 18, 2013
2013 Ark. App. 502
HONORABLE STACEY ZIMMERMAN, JUDGE
APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. JV-2012-602-3]; AFFIRMED
Nicole Hannah appeals the termination of her parental rights to her two children, A.H. and L.H. She argues three points, but we must affirm the circuit court‘s termination order because Hannah‘s points relate to decisions made during a phase of the parental-rights termination process that she did not timely challenge.
On 18 July 2012, the Department of Human Services (DHS) exercised a seventy-two hour hold on L.H., who was four months old, and his sister, A.H., who was eighteen months old, after a hotline report alleging that L.H. was the victim of abuse. According to the affidavit of facts attached to DHS‘s petition for emergency custody, L.H. was treated for significant bruising on the left side of his face and left eye, swelling near the left temple, and a bruise on his scalp on the back of his head. Further examination at Arkansas Children‘s Hospital (ACH) revealed a fractured rib that was in the process of healing and three fresh
The court granted an order for emergency custody and, after a hearing on 26 July 2012, found probable cause for the removal and continued custody with DHS. The court scheduled hearings on adjudication, no reunification, and permanency planning on 23 August 2012. The probable-cause order noted that DHS would have ACH representatives present via speakerphone to testify at the adjudication hearing. Nevertheless, at the adjudication hearing, Nicole objected to having the ACH representative testify by speakerphone, so the court continued the hearing until September 6.
Upon the commencement of the September 6 hearing, DHS and the attorney ad litem objected to Nicole using Dr. David Buckley‘s deposition, which Nicole sought to introduce as evidence, because they had not been given reasonable notice of the deposition. They also argued that Nicole had not adequately shown that Dr. Buckley was unavailable to testify. See
After hearing extensive testimony, the court found that DHS had proved, not by just a preponderance of the evidence, but by clear and convincing evidence that L.H. was exposed to extreme cruelty and abuse. The court noted eight separate injuries, none of which had plausible explanations in the court‘s judgment. The court found that L.H. was dependent-neglected and that he had been subjected to aggravated circumstances. “Aggravated circumstances” means “[a] child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, or sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification.”
After hearing more testimony on why the children should not be reunited with Nicole, the court decided that it was in the children‘s best interest that no further reunification services be provided to Nicole given the aggravated circumstances. Regarding permanency planning, DHS acknowledged that Nicole had followed the court‘s orders and the case plan, but DHS still argued that she had not demonstrated the ability to protect the children and to keep them safe. Nicole testified, for example, that she intended to stay married to David because “he didn‘t do anything.” The court concluded that “[t]here‘s no compelling reason
At the termination hearing held in late December 2012, the court found that DHS had proven grounds for termination in that Nicole had subjected the children to aggravated circumstances. L.H. and A.H. were adjudicated dependent-neglected as a result of abuse that could endanger L.H.‘s life. The court also found that the children were very adoptable and that to turn the children over to their mother would be extremely harmful and not in their best interest. The termination order was entered on 14 January 2013. Nicole timely appealed the termination order.
On appeal, Nicole argues that the court erred in excluding Dr. Buckley‘s deposition, denying her motion for a continuance, and terminating her rights based on findings of abuse and aggravated circumstances. In response, DHS asserts that all of Nicole‘s arguments concern rulings from the adjudication hearing, which were not appealed, so she is precluded from raising these arguments now. We agree that all of Nicole‘s arguments are based on adverse rulings at the adjudication level. In termination cases, a challenge to a finding of abuse or aggravated circumstances must be made, if at all, in an appeal from the adjudication hearing. See Dowdy v. Ark. Dep‘t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. Our case law is clear; we may not review adverse rulings from the adjudication, review, or
In closing, we acknowledge the obvious, which is that these cases involve family matters of the highest importance to all involved. That said, we must caution Nicole‘s counsel against making such strident remarks about the circuit court on appeal in the future. See
Affirmed.
WYNNE and BROWN, JJ., agree.
Sexton Law Firm, by: Jane Watson Sexton, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor children.