                                   2014 Ark. App. 599



                ARKANSAS COURT OF APPEALS
                                  DIVISIONS III & IV
                                    No. CV-14-515


 LASHONDA GOODWIN             Opinion Delivered October 29, 2014
                    APPELLANT
                              APPEAL FROM THE CRITTENDEN
 V.                           COUNTY CIRCUIT COURT
                              [NO. JV-2013-203]
 ARKANSAS DEPARTMENT OF
 HUMAN SERVICES and MINOR     HONORABLE RALPH WILSON, JR.,
 CHILD                        JUDGE

                               APPELLEES AFFIRMED


                             RHONDA K. WOOD, Judge


       The circuit court adjudicated Lashonda Goodwin’s child dependent-neglected.

Goodwin appeals from the court’s adjudication order. Because the court’s findings are not

clearly against the preponderance of the evidence, we affirm the adjudication order.

      Goodwin, 23-years old, gave birth to M.G. in November 2013. The Department of

Human Services (DHS) exercised a hold on M.G. after Goodwin reported to hospital staff

that she had lost custody of her other children, had a history of depression, had not taken

her medication, and had unstable living arrangements. At the adjudication hearing,

Goodwin testified to the following facts: (1) she had four other children besides M.G. but

did not have custody of any of them; (2) the State of Ohio had terminated her rights to at

least one of the children, Ma.G., after he was born weighing one pound, seven ounces; (3)

another child, X.G., was taken by the State of Arkansas, then returned, only for Ohio to
                                         2014 Ark. App. 599


“come and get [sic] him”; (4) the longest she had custody of any of her children was seven

months; (5) she had a six-year-old daughter living with an “Auntie,” but she had not had

contact with her in over a year because “Auntie” changed the phone number; (6) two

weeks before the hearing, she had moved in with her stepbrother and his wife in a two-

bedroom apartment; and (7) she was not employed, and food stamps were her only source

of income.

      DHS’s family-service worker testified that she had not visited Goodwin’s new

apartment because Goodwin had just moved in right before the hearing. The worker also

testified that no home study had been conducted on the father, Michael Lewis, because he

had just been released from jail and was awaiting a court date on a revocation charge;1

thus, he could not pass a home study. In her defense, Goodwin testified that she would be

able to keep and care for M.G., unlike her other children, because she had a support

network in Arkansas consisting of her stepbrother, her stepbrother’s wife, and M.G.’s

father.

      The court adjudicated M.G. dependent-neglected based on Goodwin’s admission

that she had lost custody of her other children, her diagnosis for depression, and her

unstable housing and income.

          In dependency-neglect cases, the standard of review on appeal is de novo, but we

do not reverse the court’s findings unless they are clearly erroneous or clearly against the

preponderance of the evidence. Moiser v. Ark. Dep’t of Human Servs., 95 Ark. App. 32, 233

S.W.3d 172 (2006). A finding is clearly erroneous when, although there is evidence to


          1   This was for violating probation on a residential-burglary charge.
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                                     2014 Ark. App. 599


support it, the reviewing court on the entire evidence is left with a definite and firm

conviction that a mistake has been committed. Eason v. Ark. Dep’t of Human Servs., 2012

Ark. App. 507, 423 S.W.3d 138.

       At a dependency-neglect adjudication hearing, DHS has to prove the allegations in

the petition by the preponderance of the evidence. Ark. Code Ann. §§ 9-27-325(h)(2)(B);

9-27-327(a)(1) (Supp. 2013). A dependent-neglected juvenile is one “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). Neglect is defined in the

Juvenile Code and can mean, among other things, an act or omission by the parent that

constitutes a “failure to take reasonable action to protect the juvenile from . . . parental

unfitness when the existence of this condition was known or should have been known.”

Ark. Code Ann. § 9-27-303(36)(A)(iii). “The statutory definition of a neglected child

does not require proof of actual harm or impairment having been experienced by the

child. The term ‘substantial risk’ speaks in terms of future harm.” Maynard v. Ark. Dep’t of

Human Servs., 2011 Ark. App. 82, at 7, 389 S.W.3d 627, 630. At an adjudication hearing,

the focus is on the child, not the parent. Seago v. Ark. Dep’t of Human Servs., 2009 Ark.

App. 767, 360 S.W.3d 733.

       Here, the court adjudicated M.G. dependent-neglected because Goodwin’s rights

to another child had been terminated and because of Goodwin’s unstable housing and

                                              3
                                    2014 Ark. App. 599


income.2 Goodwin argues that these findings are clearly against the preponderance of the

evidence. First, Goodwin argues that DHS offered no evidence that her other children,

M.G.’s siblings, were ever subjected to a substantial risk of serious harm. Second, she

argues that she had stable housing because she was living with her stepbrother; she also

points out that she was receiving assistance in the form of food stamps

       Goodwin’s arguments lack merit.        For one thing, Goodwin admitted at the

adjudication hearing that her parental rights to at least one of her children had been

terminated by the State of Ohio. Her attorney argued at the hearing, and also argues on

appeal, that DHS should have proved this fact with written documentation and, citing

Arkansas Rule of Evidence 901 (2013), maintains that Goodwin’s testimony is not the best

evidence of her history in other child-welfare cases. This argument is misplaced for two

reasons. First, Rule 901 concerns authentication and identification of evidence; it has

nothing to do with the best-evidence rule, which resides in Rule 1002. Second, the best-

evidence rule applies only when a party tries to prove the content of a writing. 3 But here,

DHS was trying to establish the existence of a past fact—that is, that Goodwin’s rights to

another child had been terminated. Of course, a document or writing from an Ohio court

could have demonstrated this fact. But there is no rule that prohibits Goodwin’s own




       2 The court was also concerned with Goodwin’s diagnosis for depression. But there
was no evidence that this diagnosis inhibited her parental abilities or could otherwise cause
future harm to M.G.
       3 “To prove the content of a writing, recording, or photograph, the original

writing, recording, or photograph is required, except as otherwise provide by these rules
or by [rules adopted by the Supreme Court of this state or by] statute.” Ark. R. Evid.
1002.
                                             4
                                   2014 Ark. App. 599


testimony from demonstrating this fact too.4 Indeed, Goodwin can testify to any fact

within her personal knowledge. Ark. R. Evid. 602. And the question whether her rights

to any of her children had been terminated surely resides within her personal experience.

       Summing up this point: Goodwin’s admission that her rights to one of her children

had been terminated, that other states had taken another child into custody, and that she

did not have custody of any of her children is sufficient to show by a preponderance of the

evidence that M.G. is at substantial risk of serious harm because of neglect or parental

unfitness.

       In addition to Goodwin’s admitted history of parental unfitness, the court found by

a preponderance of the evidence that Goodwin had unstable housing. Supporting this was

Goodwin’s testimony about living in Arkansas, then Ohio, and now living back in

Arkansas. Goodwin also testified that she had moved again two weeks before the hearing.

Her current living arrangement, where she is staying with her stepbrother, supports the

court’s finding that Goodwin tends to be incapable of living on her own and supporting

herself. The court also had a sufficient basis to find that her income was unstable based on

her testimony that she did not have a job and that her sole source of income was food

stamps.




       4 See, e.g., Lin Mfg. Co. of Ark. v. Courson, 246 Ark. 5, 8, 436 S.W.2d 472, 474
(1969) (“There is a distinction between proving a fact which has been put in writing and
proving the writing itself. Because a fact has been described in writing does not exclude
other proof of the fact.”).


                                             5
                                    2014 Ark. App. 599


      All in all, the circuit court was faced with a mother who does not have custody of

her other four children. At least one loss of custody resulted from termination. In order to

prevent the next child, M.G., from suffering serious harm, the court made the decision to

adjudicate the child dependent-neglected. As stated previously, the focus is on the child

and the potential harm to that child. Seago, supra. This is not to say that once a parent’s

rights to a child have been terminated, the rest of her children are automatically

dependent-neglected. Rather, based on these particular facts, the court’s dependency-

neglect ruling is not clearly against the preponderance of the evidence after considering

Goodwin’s history of parental unfitness, unstable housing, and her current inability to

support herself. A dependency-neglect case will give Goodwin an opportunity, under

supervision, to demonstrate whether she has changed and can potentially raise M.G. in the

future.5

       Based on this record, we hold that the court’s dependency-neglect finding is not

clearly against the preponderance of the evidence and affirm the adjudication order.

       Affirmed.

       GLADWIN, C.J., and HARRISON, WYNNE, and GLOVER, JJ., agree.

       BROWN, J., dissents.
       Dusti Standridge, for appellant.
       Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellee.
       Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor child.



       5We are hopeful that during the pendency of this case, DHS will display better
preparedness than it displayed at this hearing. It would have been helpful to the trial court
and our court on appeal had DHS sought and obtained the records concerning the
mother’s past interactions with the states of Arkansas, Ohio, and Michigan regarding her
other children.
                                             6
                                        2014 Ark. App. 599



                   ARKANSAS COURT OF APPEALS
                                       DIVISIONS III & IV
                                         No. CV-14-515

LASHONDA GOODWIN                                 Opinion Delivered:   October 29, 2014
                                 APPELLANT
                                                 APPEAL FROM THE CRITTENDEN
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. JV-2013-203]
ARKANSAS DEPARTMENT OF
HEALTH AND HUMAN SERVICES and HONORABLE RALPH WILSON, JR.,
MINOR CHILD                   JUDGE

                                   APPELLEES DISSENTING OPINION


                              WAYMOND M. BROWN, Judge


         The majority has affirmed a trial court order based on unsubstantiated inferences

drawn from Ms. Goodwin’s own testimony, an ignorance of the statutory definition of

“neglect,” and improper and inappropriate reliance on Brewer.1 I am left with a definite

and firm conviction that a mistake has been committed. Accordingly, I dissent.

         A parent’s interest in the companionship, care, custody, and management of her

child rises to the level of a constitutionally secured right, and the State registers no gains

toward its stated goals of protecting children when it separates a fit parent from the

custody of her children. 2 Adjudication hearings are held to determine whether the




1
    Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001).
2
    Stanley v. Illinois, 405 U.S. 645 (1972).
                                     2014 Ark. App. 599


allegations in a petition are substantiated by the proof. 3 The State bears the burden of

establishing dependency-neglect by a preponderance of the evidence. 4

         Here, although the trial court based its order on such inferences, the Department

presented no evidence of Ms. Goodwin’s prior history with either its services or similar

services from other states. No evidence was presented to substantiate the cause for removal

of any of the children except through Ms. Goodwin’s own testimony, in which she stated

that one child was removed at birth because he was severely premature and she would not

have been able to support his medical needs. The record also demonstrates that the

Department never visited the family home, despite citing Ms. Goodwin’s lack of stable

housing as a basis for the adjudication.

         In the case before us we are presented with a young mother with no legal training

who is facing the State of Arkansas. In her attempt to be forthright with hospital staff, she

disclosed that she previously had children but she was no longer the custodial mother of

those children. Rather than simply accessing the records in regard to these older siblings,

so as to support grounds for whether or not her newborn should be adjudicated

dependent-neglected, the Department instead set the stage for the inference that Ms.

Goodwin was not a fit mother because she did not exercise custody over her other

children. Affirming such a practice sets a dangerous precedent whereby the Department

can put families on the fast-track to parental termination without doing the homework

that the taxpayers pay them to do.
3
    Ark. Code Ann. § 9-27-327(a)(1) (Supp. 2011).
4
    Ark. Code Ann. § 9-27-325(h).


                                             2
                                     2014 Ark. App. 599


         In addition to failing to retrieve documentation evidencing the cause of non-

custody of Ms. Goodwin’s older children, the circuit court seems to have overlooked our

statutory definition of “neglect.” The circuit court based the adjudication on Ms.

Goodwin’s instability of housing and income. “Neglect” means those acts or omissions of

a parent that constitute failure or refusal to provide the necessary food, clothing, etc., for

the juvenile’s well-being, except when the failure “is caused primarily by the financial

inability of the person legally responsible and no services for relief have been offered.” 5

This plain language reading of this statutory definition states a two-part test that, when

met, excludes the act or omission from constituting neglect. Ms. Goodwin’s situation

meets this test. First, any argument that the Department can make for neglect would have

to be a result of financial inability. Second, nothing in the record indicates that any

services were offered to Ms. Goodwin to help her financially or with her housing.

According to our law, these services should have been offered before the adjudication.

         Perhaps the most troubling aspect of the circuit court’s adjudication is its strong

reliance on Brewer; a fact the majority chooses to ignore. The Department and the circuit

court used this case to stand for the proposition that a child may be removed from a parent

if that child’s older siblings suffered harm by the parent. While I understand this

proposition and believe that it should hold a place in our law, Brewer is far too

distinguishable for us to continue to allow lower courts to cite it as the authority for

removing a child based solely on the fact that the child’s older siblings had suffered any

harm whatsoever. In Brewer, the nineteen month-old sibling of the child adjudicated
5
    Ark. Code Ann. § 9-27-303(36)(A)(ii).


                                              3
                                   2014 Ark. App. 599


dependent-neglected was airlifted to the hospital, where she was placed on a ventilator and

in danger of death. She had a low blood count and a large hematoma on her back that was

discovered to be caused by a direct blow. She had bruises at different stages on her body,

including above the ears and around the eyes. She had rectal tears consistent with sexual

abuse and bruising on her labia majora. Further tests at the hospital established brain

hemorrhaging and a spinal fracture. We may be able to cite this case to be relied on in the

future for the purpose of justifying removal when an older sibling of a child suffered

substantial and direct harm or physical or sexual abuse, but it should not be allowed as

precedent in the instant case where the record indicates that the Department made no

effort to discover why Ms. Goodwin no longer had custody of her children and, at best,

can only point to her potential indigence as “harm” that would be suffered by the child.

       In summation, as my learned, seasoned, former circuit-judge colleague, writing for

the majority today, has previously stated “Given the completely miniscule amount of

evidence of dependency-neglect once we remove the inference of guilt, I find that the

circuit court should take a second look at the case and determine if the court would still

adjudicate.” 6




6
 Bowie v. Ark. Dep’t of Human Servs., 2013 Ark. App. 279, at 8, 427 S.W.3d 728, 732
(Wood, J., dissenting).
                                            4
