Elizabeth Garner v. Arkansas Department of Human Services and Minor Child

Reason: I attest to the Cite as 2020 Ark. App. 328
ARKANSAS COURT OF APPEALS
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DIVISION I
No. CV-19-977

Opinion Delivered: June 3, 2020

ELIZABETH GARNER
APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
V. FORT SMITH DISTRICT
[NO. 66FJV19-275]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR
CHILD HONORABLE GUNNER DELAY,
APPELLEES JUDGE
AFFIRMED

BART F. VIRDEN, Judge

The Sebastian County Circuit Court adjudicated appellant Elizabeth Garner’s

daughter, M.G., dependent-neglected based on parental unfitness and neglect. 1 Garner

argues that the trial court erred in adjudicating M.G. dependent-neglected pursuant to

Garrett’s Law, codified at Ark. Code Ann. § 9-27-303(36)(B)(i) (2019), because she lacked

the requisite mental state to violate the statute given that she was unaware she was pregnant.

Garner also argues that the trial court abused its discretion in refusing to admit a medical

record showing that M.G. tested negative for illegal substances at birth, contrary to the

The trial court also found M.G. dependent-neglected based on a finding that her
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father, Mark Alan Garner, is unfit; however, he is not a party to this appeal and is serving a
thirty-year prison sentence for drug-related convictions.
evidence offered by the Arkansas Department of Human Services (DHS) to prove neglect.

We affirm the adjudication.

I. Background

On May 29, 2019, DHS received a report on its abuse hotline that the umbilical-

cord (U-cord) test results for M.G., born May 21, 2019, were positive for

methamphetamine and amphetamines. DHS eventually located Garner and took M.G. into

custody on July 19.2 In an affidavit attached to a petition for emergency custody, a

caseworker noted that DHS had been involved with the family since 2006 when M.G.’s

older siblings, C.R. and C.W., had come into care for inadequate supervision. Garner was

offered drug treatment, but custody of C.R. and C.W. was ultimately given to their

maternal grandparents. DHS became involved with Garner again in October 2017 when

Garner gave birth to P.G., who was born with drugs in her system. P.G. was taken into

DHS custody on October 25, 2018, because Garner and P.G.’s father were arrested on

drug-related charges. P.G. was adjudicated dependent-neglected based on parental unfitness

due to substance abuse and inadequate supervision. DHS provided services to Garner,

including a referral for a drug-and-alcohol assessment, drug treatment, and random drug

screens. The caseworker noted in the affidavit that Garner had not made significant progress

toward reunification with P.G. and that Garner had tested positive for drugs during the

foster-care case involving P.G. Concerning M.G., the caseworker reported that an

investigator had difficulty locating Garner because she was using both her maiden and

Apparently, the hospital had identified the mother as Elizabeth Garner, while DHS
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had identified her in its records as Elizabeth Darnell. There was also confusion with respect
to Garner’s address.

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married names; that, when Garner was located, she denied ever having physical custody of

M.G., claiming that M.G. was with Garner’s parents in Conway; and that Garner denied

using illegal drugs during her pregnancy with M.G. despite her positive drug tests in the

months preceding M.G.’s birth. An adjudication hearing was scheduled for September 3,

2019.

Robbie McKay, a DHS supervisor, testified that Garner had been instructed to

inform DHS of any life-changing events that would affect her open case concerning P.G.

McKay stated that Garner had a drug-and-alcohol assessment in February 2019 but that she

had not completed drug treatment. McKay said that Garner had a positive urinalysis in

February 2019 for illegal drugs; that in early April 2019, she had a hair-follicle test, which

detects drug use during the previous ninety-day period, that was positive for

methamphetamine; and that M.G.’s U-cord test was positive for methamphetamine and

amphetamines in May 2019. McKay said that Garner had recently—since M.G.’s birth—

restarted drug treatment. According to McKay, Garner had not informed DHS about her

pregnancy or that she had given birth. McKay testified that Baptist Hospital in Fort Smith

had notified DHS of the positive U-cord results on M.G. because drugs in a newborn’s

system present a danger to the baby. She said that, because DHS had an open case on M.G.’s

sibling, P.G., related to Garner’s drug use, M.G. was also at risk.

Garner testified that she was not aware of any instructions she had received in P.G.’s

case to notify DHS of any life-changing experiences, such as giving birth to another child.

Garner insisted that she was not aware she was pregnant with M.G. and that she did not

have similar pregnancy symptoms as she had with her prior pregnancies. Garner explained

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that she had gone to the restroom with what she thought were gas pains, that she had felt

the baby’s head crowning, and that she had gone to the hospital and delivered M.G. Garner

insisted that she and M.G. tested negative for illegal substances at the time of delivery and

that she had provided a document to DHS stating as much. Garner testified that she has had

a drug test every month since May 2019 and that the results were negative.3 Garner claimed

that within four weeks of giving birth, she sent an email to a caseworker at DHS notifying

her that she had delivered M.G. She acknowledged that she had taken M.G. to visits with

P.G.

Ricky Gabbard, a volunteer with CASA (court-appointed special advocates), testified

that he had asked Garner about the identity of the infant during visitations with P.G. and

that Garner had said she was just babysitting for a friend. He said Garner eventually asked

him hypothetically whether DHS would take a child away from her if she had another one.

Gabbard stated that Garner had missed visitations with P.G. from May 21 through May 29

because she claimed to have had strep throat.

In an order entered September 30, 2019, M.G. was adjudicated dependent-neglected

due to parental unfitness of both parents and neglect as to Garner, specifically, “due to the

presence of an illegal substance in the mother and/or the juvenile at the time of birth.” The

trial court further found that Garner had a positive urinalysis for illegal substances in

February 2019; that she tested positive for methamphetamine on a hair-follicle test in April

2019; that the U-cord test conducted at the time of M.G.’s birth on May 21, 2019, was

3
One drug screen dated August 21, 2019, was introduced into evidence showing that
Garner had tested negative for illegal substances. There is some indication in the record that
Garner tested negative on other occasions.

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positive for methamphetamine and amphetamines; and that Garner’s testimony lacked

credibility in that she had attempted to conceal and downplay her drug usage. In its

comments from the bench, the trial court described Garner as “deceitful” and said that she

was a person of above-average intelligence who had given birth to other children. The trial

court said that it was “unpersuaded that she was unaware of her pregnancy.” Garner filed a

timely appeal from the adjudication.

II. Standard of Review

Adjudication hearings are held to determine whether the allegations in a petition are

substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1)(A). Dependency-neglect

allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-

325(h)(2)(A)(ii). Only one ground is necessary to support a dependency-neglect finding.

Trotty v. Ark. Dep’t of Human Servs., 2016 Ark. App. 557, 504 S.W.3d 636. In dependency-

neglect cases, the standard of review on appeal is de novo, but we do not reverse the trial

court’s findings unless they are clearly erroneous or clearly against the preponderance of the

evidence. Ward v. Ark. Dep’t of Human Servs., 2018 Ark. App. 376, 553 S.W.3d 761. 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. In reviewing a dependency-neglect adjudication, we defer to the trial court’s

evaluation of the credibility of the witnesses. Id.

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III. Discussion

A. Sufficiency of the Evidence

A “dependent-neglected juvenile” is any juvenile who is at substantial risk of serious

harm as a result of the following acts or omissions to the juvenile, a sibling, or another

juvenile: (i) abandonment; (ii) abuse; (iii) sexual abuse; (iv) sexual exploitation; (v) neglect;

(vi) parental unfitness; or (vii) being present in a dwelling or structure during the

manufacturing of methamphetamine with the knowledge of his or her parent, guardian, or

custodian. Ark. Code Ann. § 9-27-303(18)(A). Arkansas Code Annotated section 9-27-

303(36)(B)(i), also known as Garrett’s Law, provides that “neglect” includes (a) causing a

child to be born with an illegal substance present in the child’s bodily fluids or bodily

substances as a result of the pregnant mother’s knowingly using an illegal substance before

the birth of the child; or (b) at the time of the birth of a child, the presence of an illegal

substance in the mother’s bodily fluids or bodily substances as a result of the pregnant

mother’s knowingly using an illegal substance before the birth of the child.

Garner specifically argues that “the trial court clearly erred in adjudicating M.G.

dependent-neglected pursuant to ‘Garrett’s Law’” and cites Ark. Code Ann. § 9-27-

303(36)(B)(i). She asserts that the trial court was required to find that she knowingly used an

illegal substance before the birth of M.G. Garner contends that she “lacked the requisite

culpable mental state to constitute ‘neglect’ as contemplated by the statute” because she was

unaware that she was pregnant with M.G.

The trial court adjudicated M.G. dependent-neglected on two separate bases:

parental unfitness as to both parents and neglect by Garner. Garner challenges the

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adjudication only as it relates to neglect, specifically with respect to Garrett’s Law. Her

argument is couched in terms of statutory interpretation, suggesting that “knowingly”

modifies both using illegal substances and being pregnant. Garner, however, does not

challenge the trial court’s finding that she is an unfit parent. While “parental unfitness” is

not defined in the statute, case law indicates that illegal drug use by a parent renders that

parent unfit. Hilburn v. Ark. Dep’t of Human Servs., 2018 Ark. App. 420, 558 S.W.3d 885.

Here, the trial court found that Garner had tested positive for illegal drugs while she was

pregnant with M.G. and that M.G.’s U-cord test was positive for illegal drugs. The finding

of parental unfitness does not hinge on whether Garner knew she was pregnant, and the

trial court specifically found that Garner was not credible in stating that she was unaware

she was pregnant, given her above-average intelligence and prior pregnancies resulting in

live births. When an appellant fails to attack the trial court’s independent, alternative basis

for its ruling, we will not reverse. Thomsen v. Ark. Dep’t of Human Servs., 2009 Ark. App.

687, 370 S.W.3d 842. Again, only one ground is necessary to support an adjudication of

dependency-neglect. Trotty, supra. Because Garner focuses only on the trial court’s finding

of neglect under Garrett’s Law and does not challenge the trial court’s finding that she is an

unfit parent, we affirm the trial court’s adjudication.

Garner further contends that, although the trial court found that she was not credible

when she testified that she was unaware she was pregnant with M.G., lack of credibility is

not evidence. She cites Guthrey v. Arkansas Department of Human Services, 2017 Ark. App.

19, 510 S.W.3d 793. In Guthrey, this court held that the trial court erred in finding that the

fact that Guthrey had been evasive and less than honest throughout the case was evidence

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that she had failed to remedy her “poor judgment.” We noted that, although we defer to

the trial court’s findings on credibility, the lack of credibility, standing alone, does not

amount to a failure to remedy a condition that caused the children’s removal. We held that

the trial court erroneously substituted its credibility determination for substantive evidence

sufficient to support its finding. Here, the trial court’s adjudication did not rest solely on its

finding that Garner lacked credibility. As noted earlier in this opinion, the trial court also

considered positive drug tests during Garner’s pregnancy with M.G. and a U-cord test that

was positive for methamphetamine and amphetamines at the time of M.G.’s birth.

B. Evidentiary Ruling

Garner argues that the trial court erred in refusing to admit into evidence a document

that purports to show that M.G. tested negative for illegal substances at birth. A trial court’s

rulings on the admissibility of evidence will not be reversed absent a manifest abuse of

discretion. Hopkins v. Ark. Dep’t of Human Servs., 79 Ark. App. 1, 83 S.W.3d 418 (2002).

Garner sought to admit a document entitled “Flowsheet Print Request.” The date

range is from May 18 to May 22, 2019. The patient’s name is “GARNER,

BGELIZABETH.” There is a medical-records number (MRN) below the name. The

toxicology section of the document shows that the patient, weighing 2.8 kilograms with a

height of 45.72 centimeters, tested negative for illegal substances.

The trial court had earlier permitted DHS to introduce the U-cord test into evidence

over Garner’s hearsay objection because DHS had subpoenaed medical records pursuant to

the Hospital Records Act. The trial court, however, denied Garner’s request to admit the

document purporting to show that M.G. had tested negative for illegal substances at birth.

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The trial court found that the protocol for admission of medical records had not been

followed to allow admission of Garner’s proffered document.

The Hospital Records Act, codified at Ark. Code Ann. § 16-46-306 (1999), provides

that a copy of a medical record shall be admissible in evidence to the same extent as though

the original record was offered and the custodian had been present and testified to the

matters stated in the affidavit. The Arkansas Rules of Evidence apply at adjudication

hearings. Ark. Code Ann. § 9-27-325(e)(1). On appeal, Garner contends that the proffered

exhibit was admissible as part of the Hospital Records Act and points out that the document

she sought to admit into evidence had the same MRN as the medical records subpoenaed

by DHS. Garner asserts that, because DHS subpoenaed the entirety of the medical records,

the urinalysis with the same MRN must have been included in the packet of records

containing the U-cord test.

At the hearing, the trial court questioned the parties as to whether the proffered

document was, in fact, included with the medical records subpoenaed by DHS. Counsel for

DHS flatly denied that it was included with the subpoenaed medical records, while Garner’s

counsel was equivocal and finally admitted that she had received the urinalysis from Garner

herself. In other words, Garner’s proffered document was not part of the subpoenaed medical

records that had been verified by the hospital. Moreover, there was no separate verification

for the proffered document. Under these circumstances, we cannot say that the trial court

abused its discretion in denying Garner’s request to admit the proffered document

purporting to show that M.G. had tested negative for illegal substances.

Affirmed.

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ABRAMSON and SWITZER, JJ., agree.

James & Streit, Attorneys at Law, by: Jonathan R. Streit, for appellant.

Ellen K. Howard, Office of Chief Counsel, for appellee.

Kimberly Boling Bibb, attorney ad litem for minor child.

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