Merritt v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 503

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-120

Opinion Delivered September 23, 2015
JESSICA MERRITT
APPELLANT APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. JV-2014-595]

ARKANSAS DEPARTMENT OF HONORABLE VICKI SHAW COOK,
HUMAN SERVICES JUDGE
APPELLEE
AFFIRMED

M. MICHAEL KINARD, Judge

Appellant Jessica Merritt appeals from the order adjudicating her children C.C. (born

2/24/10) and D.E. (born 12/18/13) dependent-neglected and finding the existence of

aggravated circumstances. She argues that there is insufficient evidence to support the trial

court’s findings. We affirm.

The evidence presented at the adjudication hearing established that appellant took

D.E. to his pediatrician in Hot Springs on August 19, 2014, after noticing that morning that

his head was soft and swollen on one side. The pediatrician advised appellant to take him

to the emergency room, where D.E. was diagnosed with a skull fracture and an epidural

hematoma. D.E. was then flown to Arkansas Children’s Hospital (ACH) in Little Rock

where doctors performed emergency surgery to evacuate the hematoma. Dr. Karen Farst,

who evaluates victims of suspected abuse at ACH, testified that there were three main

components to D.E.’s injury: (1) a scalp hematoma (a bruise and collection of blood just
Cite as 2015 Ark. App. 503

underneath the scalp); (2) a comminuted skull fracture (a very significant fracture because it

had “a couple of different pieces to it” as opposed to a simple crack through the bone); and

(3) an epidural hematoma (a fairly large collection of blood under the skull that was pressing

on the surface of his brain).

Appellant told Dr. Farst that the only incident she could recall had occurred three days

earlier, on Saturday, when D.E. fell from a bed and hit his head on a coffee table. However,

D.E. had not appeared injured to appellant until Tuesday. Appellant told Dr. Farst that she

had been D.E.’s only caregiver.

Dr. Farst opined that the incident described by appellant would not have accounted

for the severity of D.E.’s injury. She testified that the type of injury he had was seen in

children who had suffered much more significant blows to the head, such as from a car crash;

from falling from a significant height like from a porch onto a concrete surface; from

accidentally being hit in the head with a swinging baseball bat; from being struck forcibly

with a falling object; or from being slammed onto a hard surface. Dr. Farst said that even

significant household falls did not cause injuries this severe. She said that when a child falls

from a countertop or rolls off a couch and strikes a hard surface, it does not commonly result

in a skull fracture; if it does, it would be a simple linear crack, not a comminuted fracture.

Dr. Farst also testified that it was much more likely that the injury had occurred more

recent to Tuesday, August 19, than on Saturday, August 16. She noted that during the

operation, one of D.E.’s blood vessels was still in the active process of bleeding, and that if

blood had been collecting since Saturday, D.E. would likely have been in much worse

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condition by Tuesday. She said that if a child with this injury does not get medical care and

the blood continues to accumulate, it can cause seizures, trouble breathing, and lead to death;

however, D.E. was healing well and had a good prognosis.

Charles Anderson, Senior Investigator with the Arkansas State Police Crimes Against

Children Division, interviewed appellant twice. She denied that D.E. had been left alone

with anyone else and explained that on Saturday he had fallen off a bed onto a night stand

or entertainment center. Anderson said that appellant had a flat affect and no major

emotional response. In the second interview, appellant claimed the incident had occurred

on Sunday. Anderson later learned that D.E. had been left with his father, Michael Estell,

on Monday, August 18. Anderson said that appellant became defensive when confronted

with the fact that she had not told him about Estell. Appellant later told Anderson that she

remembered an incident on Monday morning wherein D.E. was struck on the head with a

radio. Anderson said that after describing the incident and measurements of the radio to Dr.

Farst, she told him this would not have caused D.E.’s injuries.

Estell told Anderson that on Sunday, August 17, appellant contacted him regarding

watching D.E. because she was starting a new job. Estell kept D.E. on Monday and claimed

he noticed a bump forming on his head that morning. Estell told Anderson that D.E. was

sleeping more than usual and was not as active. Estell said that he informed appellant of the

bump when she picked D.E. up that evening, and he thought she would get him checked

out. Estell said that shortly after she left, appellant accused him of doing something to the

child.

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A protective-services case had been open on the family since June 2014. The family’s

history with the Department of Human Services (DHS) included a true finding of failure to

protect on appellant based on an incident in June wherein C.C. was assaulted by his

grandmother. There was also a true finding of threat of harm on Estell stemming from a

domestic-violence situation between Estell and appellant that left D.E. with a scratch. At the

time of the adjudication hearing, appellant was pregnant with Estell’s child, and she

continued to see him despite a no-contact order. DHS’s investigator testified that the

children had been removed for their safety due to D.E.’s unexplained injuries and the history

of the children being placed in dangerous situations. At the conclusion of the hearing, the

trial court found that both children were dependent-neglected and that they had been

subjected to aggravated circumstances.

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) (Supp. 2013).

Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark.

Code Ann. § 9-27-325(h)(2)(B) (Supp. 2013). In reviewing a dependency-neglect

adjudication, we defer to the circuit court’s superior position to observe the parties and judge

the credibility of the witnesses. Bowie v. Arkansas Department of Human Services, 2013 Ark.

App. 279, 427 S.W.3d 728. Deference to the trial court is even greater in cases involving

child custody, as a heavier burden is placed on the circuit judge to utilize to the fullest extent

his or her powers of perception in evaluating the witnesses, their testimony, and the best

interests of the children. Id. We will not reverse the circuit court’s findings unless they are

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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.

A dependent-neglected juvenile includes one who is at substantial risk of serious harm

because of abuse or neglect to the juvenile or to a sibling. Ark. Code Ann. §

9-27-303(18)(A) (Supp. 2013). The trial court found that the following acts of abuse had

been inflicted upon D.E.: extreme or repeated cruelty to a juvenile; any injury that is at

variance with the history given; and any nonaccidental physical injury. Ark. Code Ann. §

9-27-303(3)(A)(i), (iv) & (v). The court also found that D.E. had suffered from medical

neglect, as defined in Ark. Code Ann. § 9-27-303(36)(A)(ii) & (v), and from inadequate

supervision, as defined in Ark. Code Ann. § 9-27-303(36)(A)(vii).

Appellant concedes that the finding that D.E. is dependent-neglected by a

preponderance of the evidence due to inadequate supervision is not clearly erroneous.

However, she attempts to challenge the finding that he was dependent-neglected due to

medical neglect. DHS contends that any argument with regard to medical neglect is moot

because only one basis for dependency-neglect is required. We agree that it is not necessary

to address the medical-neglect finding. See Stoliker v. Arkansas Department of Human Services,

2012 Ark. App. 415, 422 S.W.3d 123 (appellant does not specifically challenge the trial

court’s finding of neglect, and this alone would compel affirmance of the trial court’s

dependency-neglect determination). Appellant concedes inadequate supervision and does

not challenge the trial court’s findings of abuse. We conclude that these findings are not

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clearly erroneous and support the determination that the children were dependent-neglected.

Appellant contends that the one-time injury to D.E. did not put C.C. at substantial

risk of serious harm because there was no evidence that she had ever abused C.C. or that

C.C. was left with Estell. She acknowledges that abuse to a sibling can form the basis for a

child’s dependency-neglect adjudication, but she claims there was no risk of harm here. We

disagree. D.E. suffered a serious head injury while in appellant’s custody or during the time

she entrusted his care to Estell. Appellant provided no plausible explanation for the injury

and withheld from hospital staff and law enforcement the fact that D.E. had been with Estell.

The term “substantial risk” speaks in terms of future harm. Maynard v. Arkansas Department

of Human Services, 2011 Ark. App. 82, 389 S.W.3d 627. Even though C.C. had not yet been

harmed, he was at substantial risk of harm because of the unexplained abuse and neglect

suffered by D.E.

Appellant next challenges the trial court’s aggravated-circumstances finding. The

court found by clear and convincing evidence that the children had been subjected to

aggravated circumstances on the basis of extreme cruelty and abuse or neglect of a child or

sibling that could endanger the life of the child. Ark. Code Ann. § 9-27-303(6)(A) & (C).

We have held that an appellant’s challenge to the aggravated-circumstances finding in the

adjudication order is properly before our court on an appeal from the adjudication order

even when the appellant concedes the dependency-neglect finding. Callison v. Arkansas

Department of Human Services, 2014 Ark. App. 592, 446 S.W.3d 210.

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Appellant argues that D.E.’s life was never in danger because he was in stable

condition during his transfer to ACH; he was alert and active during his hospitalization; and

the dangerous symptoms potentially leading to death, which Dr. Farst said would occur if

treatment was delayed, had not occurred. DHS argues that Dr. Farst unambiguously stated

that D.E.’s injury could “lead to death,” and the trial court found her to be “very credible.”

Dr. Farst testified that if the collection of blood pushing on D.E.’s brain had continued to

accumulate without medical care, it could have caused seizures, trouble breathing, and death.

We hold that the trial court’s finding that the abuse or neglect suffered by D.E. could have

endangered his life was not clearly erroneous. This finding is sufficient to support the trial

court’s finding of aggravated circumstances, and we need not address appellant’s argument

regarding the finding of extreme cruelty. See Cole v. Arkansas Department of Human Services,

2014 Ark. App. 395.

Appellant also argues that the findings cannot stand against her when D.E.’s injury was

just as likely to have been caused by Estell. However, at the adjudication stage, the focus of

the juvenile code is whether the child is dependent-neglected: which parent committed the

acts or omissions constituting abuse and neglect is not the issue. Howell v. Arkansas

Department of Human Services, 2009 Ark. App. 612. The trial court’s findings are supported

even if appellant did not directly cause the injuries.

Affirmed.

GRUBER and HIXSON, JJ., agree.

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Dusti Standridge, for apellant.

Tabitha B. McNulty, Office of Policy & Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

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