Kendall Terry v. Arkansas Department of Human Services and Minor Child

Cite as 2024 Ark. App. 422
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-24-182

KENDALL TERRY Opinion Delivered September 18, 2024
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
V. SMITH DISTRICT
[NO. 66FJV-23-371]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE LEIGH ZUERKER,
CHILD JUDGE
APPELLEES
AFFIRMED

RAYMOND R. ABRAMSON, Judge

Kendall Terry appeals from the Sebastian County Circuit Court’s adjudication order

finding his Minor Child (“MC”) a dependent-neglected child.1 Terry argues that the evidence

does not clearly and convincingly prove that he is an unfit parent and that he did not abuse

MC. Because his argument is nothing more than a request to reweigh the evidence on appeal,

we affirm.

On September 5, 2023, MC was removed from Terry’s custody due to allegations of

abuse. The next day, the Arkansas Department of Human Services (DHS) filed a petition for

emergency custody with an attached affidavit detailing the basis for removal. DHS

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MC’s mother, Jessica Terry, does not appeal the adjudication of MC.
Investigator Jessica Crawford interviewed MC at her school after a hotline call reported that

MC had a black eye. During the interview, MC disclosed that her father had caused the black

eye by striking her, and he had also attempted to cut off her hair. The investigator took

photos of the bruising on MC’s eye and arm. MC told Investigator Crawford that her father

had told her to lie about the abuse.

DHS filed for emergency custody, and the circuit court held a probable-cause hearing

on September 14, 2023, wherein Terry stipulated to probable cause. The order was entered

on October 16. On October 26, the circuit court held an adjudication hearing in which

Investigator Crawford, MC, and Terry all testified. Specifically, Investigator Crawford

testified that DHS had only one reasonable explanation for the abuse, and that was provided

by MC. The family was unable to provide a reasonable explanation, and Terry’s version kept

changing. At the conclusion of the evidence, counsel gave closing statements. Of note, the

attorney ad litem impressed on the court during closing that MC had provided her account

of the incident to three different entities, and her account always remained consistent. The

attorney ad litem further noted that Terry’s statement of “I ought to cut your hair off” was a

statement of violence.

The court’s ruling stated,

The court has obviously been provided pictures. There are bruises on the arm. There
are bruises on the eye of the juvenile. The juvenile––the court found the juvenile’s
testimony to be credible. The court finds that she did not waiver in that testimony
and in her statement.

2
The order held: “Based upon the testimony and evidence presented, the Court finds,

by clear and convincing evidence (in the event that ICWA is hereafter definitely determined

to apply), that the allegations in the petition have been substantiated, and that the juvenile

is dependent/neglected upon the basis of parental unfitness and physical abuse.” The circuit

court designated a goal of reunification. This timely appeal followed.

The purpose of an adjudication hearing is to determine whether the allegations in

the petition are substantiated by the proof. E.g., Araujo v. Ark. Dep’t of Hum. Servs., 2019 Ark.

App. 181, at 4, 574 S.W.3d 683, 685. The burden of proof in adjudication hearings is

normally preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(1) (Supp. 2023).

The burden of proof changes for cases that the court believes includes the removal of a child

that is an Indian child. 25 C.F.R. § 23.11 (2024). Such is the case here. The Indian Child

Welfare Act (“ICWA”) requires that the evidence must clearly and convincingly prove

dependency-neglect. Ark. Code Ann. § 9-27-325(h)(2)(B). Thus, in this case, DHS has the

burden to prove by clear and convincing evidence that the child is dependent-neglected.

Dependency-neglect proceedings are reviewed de novo on appeal. Porter v. Ark. Dep’t

of Health & Hum. Servs., 374 Ark. 177, 183, 286 S.W.3d 686, 692 (2008). The appellate court

will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Ullom v.

Ark. Dep’t of Hum. Servs., 67 Ark. App. 77, 992 S.W.2d 813 (1999). 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. Yarbrough

v. Ark. Dep’t of Hum. Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). This, however, does

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not mean that the appellate court is to act as a “super factfinder,” substituting its own

judgment or second-guessing the credibility determinations of the court; the court reverses

only those cases in which a definite mistake has occurred. Benedict v. Ark. Dep’t of Hum. Servs.,

96 Ark. App. 395, 397, 242 S.W.3d 305, 308 (2006).

An adjudication hearing is held to determine whether the allegations in a

dependency-neglect petition are substantiated by the proof. Ark. Code Ann. § 9-27-

327(a)(1)(A) (Supp. 2023). In reviewing dependency-neglect adjudications, we will defer to

the circuit court’s evaluation of the credibility of the witnesses. Worrell v. Ark. Dep’t of Hum.

Servs., 2010 Ark. App. 671, at 9, 378 S.W.3d 258, 263. A circuit court’s findings will not be

reversed unless they are clearly erroneous or clearly against the preponderance of the

evidence. Id.2 A finding is clearly erroneous when, although there is evidence to support it,

the reviewing court is left with a definite and firm conviction that a mistake has been

committed. Merritt v. Ark. Dep’t of Hum. Servs., 2015 Ark. App. 552, at 4, 473 S.W.3d 31, 34.

At an adjudication hearing, the focus is on the child, not the parent. Bean v. Ark. Dep’t of

Hum. Servs., 2016 Ark. App. 350, at 4, 498 S.W.3d 315, 318.

Here, we hold, even with the heightened burden of proof, there was sufficient

evidence to support the circuit court’s dependency-neglect finding. A dependent-neglected

juvenile is any juvenile who is at substantial risk of serious harm as a result of the following

2
Again, this case requires a heightened burden of proof due to the application of the
ICWA to clear and convincing, not preponderance of the evidence. 25 C.F.R. § 23.11; Ark.
Code Ann. § 9-27-325(h)(2)(B).

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acts or omissions to the juvenile, a sibling, or another juvenile: abandonment, abuse, sexual

abuse, sexual exploitation, neglect, parental unfitness, dependency, or 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(17) (Supp. 2023).

The court found that MC was a dependent-neglected juvenile due to physical abuse

and parental unfitness. The relevant parts of the definition of “Abuse” for purposes of this

case include “any injury that is at variance with the history given,” “any nonaccidental

physical injury,” “any . . . intentional or knowing acts, with physical injury and without

justifiable cause” including but not exclusive to “striking a child on the face.” Ark. Code

Ann. § 9-27-303(3)(A)(iv), (v), (vi)(d). “Parental unfitness” is not specifically defined in the

Juvenile Code, but case law is clear that it is not necessarily predicated on the parent’s

causing some direct injury to the child in question. Young v. Ark. Dep’t of Hum. Servs., 2018

Ark. App. 270, 549 S.W.3d 383.

Only one ground is necessary to support a dependency-neglect finding. Garner v. Ark.

Dep’t of Hum. Servs., 2020 Ark. App. 328, 603 S.W.3d 858. On appeal, Terry’s argument

would require us to reweigh the evidence, which we will not do. See McCord v. Ark. Dep’t of

Hum. Servs., 2020 Ark. App. 244, at 11–12, 599 S.W.3d 374, 381 (“The circuit court’s

weighing the evidence differently than appellant wanted it to be weighed is not reversible

error. We do not act as a super fact-finder, nor do we second-guess the circuit court’s

credibility determinations.”).

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On appeal, Terry relies on the attorney ad litem’s closing argument. He attempts to

posit that the closing argument somehow is more telling than the testimony of Investigator

Crawford, MC, and even himself. We do not find his argument persuasive. The circuit court

relied on the evidence that was presented to the court through the testimony of the witnesses

and the photographs of the injuries to MC.

Further, the circuit court found MC to be a credible witness while never addressing

Terry’s credibility. The court relied on the photos and credible testimony of MC to find by

clear and convincing evidence that MC was a dependent-neglected child due to parental

unfitness and physical abuse. We have continually expressed that we will not reweigh

evidence. E.g., Christ v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 354, at 7, 635 S.W.3d at

337. Accordingly, we affirm the Sebastian County Circuit Court’s order adjudicating MC

dependent-neglected.

Affirmed.

KLAPPENBACH and BROWN, JJ., agree.

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Janet Lawrence, attorney ad litem for minor child.

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