{ "id": 6136658, "name": "ARKANSAS DEPARTMENT of HEALTH and HUMAN SERVICES v. Steven MITCHELL and Sarah Mitchell", "name_abbreviation": "Arkansas Department of Health & Human Services v. Mitchell", "decision_date": "2007-09-26", "docket_number": "CA 07-427", "first_page": "45", "last_page": "51", "citations": [ { "type": "official", "cite": "100 Ark. App. 45" }, { "type": "parallel", "cite": "263 S.W.3d 574" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "91 S.W.2d 265", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1936, "pin_cites": [ { "parenthetical": "holding that a judgment in a criminal prosecution for DWI did not bar a subsequent civil proceeding founded on the same facts" } ], "opinion_index": 0 }, { "cite": "192 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415049 ], "year": 1936, "pin_cites": [ { "parenthetical": "holding that a judgment in a criminal prosecution for DWI did not bar a subsequent civil proceeding founded on the same facts" } ], "opinion_index": 0, "case_paths": [ "/ark/192/0371-01" ] }, { "cite": "336 Ark. 423", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51328 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0423-01" ] }, { "cite": "360 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5459787 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/360/0340-01" ] }, { "cite": "364 Ark. 292", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3034897 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/364/0292-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-303", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(18)(A)" }, { "page": "(36)(A)(iii)" } ], "opinion_index": 0 }, { "cite": "90 Ark. App. 223", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139337 ], "weight": 3, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/90/0223-01" ] }, { "cite": "80 Ark. App. 104", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137744 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/80/0104-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-325", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2007, "pin_cites": [ { "page": "(h)(2)(B)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 665, "char_count": 12847, "ocr_confidence": 0.767, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1748511206637916 }, "sha256": "60b118fe9e55aebd7be3e00e21a145f4400678e59af2a068808f586d6bd3c84b", "simhash": "1:5bb94c95e4b245de", "word_count": 2174 }, "last_updated": "2023-07-14T22:52:18.034517+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Marshall and Miller, JJ., agree." ], "parties": [ "ARKANSAS DEPARTMENT of HEALTH and HUMAN SERVICES v. Steven MITCHELL and Sarah Mitchell" ], "opinions": [ { "text": "Karen R. Baker, Judge.\nDHHS has appealed from an order of the Izard County Circuit Court dismissing its petition to have the three children of appellees Steven Mitchell and Sarah Mitchell declared to be dependent-neglected. We affirm.\nE.M. was bom in May 2002, J.D.M. in April 2004, and C.M. in December 2006. Steven was a schoolteacher who was charged with sexual offenses against some of his students, seventeen-year-old males. On August 23, 2005, the Izard County Circuit Court entered a judgment and disposition order based on a negotiated plea of guilty, finding that Steven was guilty of two counts of sexual assault in the second degree with a victim under the age of eighteen. He was required to register as a sex offender.\nOn December 29, 2006, Steven and Sarah agreed to a safety plan created by DHHS. Steven agreed not to babysit any child, including his own children; not to assist any child in any hygiene process; and not to hold any position in the community that allowed him unsupervised contact with any minor. The safety plan also stated that Steven would be supervised at all times while in the presence of a child and that, if appellees failed to follow the plan, the children would be placed into foster care. It also stated: \u201cMrs. Sarah Mitchell will ensure that Mr. Steven Mitchell is not left alone with any of the children unless there is another adult present and that adult must know about Mr. Mitchell\u2019s past child sexual abuse history.\u201d\nOn January 2, 2007, DHHS filed a petition for an emergency order finding the children to be dependent-neglected because they were at substantial risk of serious harm. It asked for an ex parte order to provide \u201cspecific appropriate safeguards for the protection of the juveniles if the alleged offender has a legal right to custody or visitation with the juveniles or a property right allowing access to the home where the juveniles resides [sic].\u201d Attached to the petition was an affidavit by Michael Fitch, a DHHS employee, alluding to Sarah\u2019s alleged failure to protect the children. That same day, the circuit court entered an ex parte order finding probable cause to believe that the children were dependent-neglected. The court set a probable-cause hearing on January 3, 2007, and an adjudication hearing on February 7, 2007.\nIn their responses to DHHS\u2019s requests for admissions, Steven and Sarah admitted that he had pled guilty to two counts of sexual assault in the second degree with a victim under the age of eighteen and that he was ordered to register as a sex offender. They also admitted that, after Steven informed Sarah that he had negotiated the guilty plea, Sarah had allowed Steven to be alone with the parties\u2019 children.\nAt the February 7, 2007 hearing, DHHS chose to stand on the pleadings and did not call any witnesses (including Fitch) or present any evidence. DHHS\u2019s attorney, David Fuqua, summed up his case as follows:\nI sent requests for admissions out to both Mr. and Mrs. Mitchell and I think the substance of the admission[s] are that Mr. Mitchell is a convicted sex offender. Mrs. Mitchell knew of that and after knowing of that she allowed him unsupervised contact with their children. And I think that\u2019s the facts of the case. So the department is asking the court to find that Mrs. Mitchell is guilty of failure to properly supervise the children by allowing them to be in the unsupervised custody of a convicted sex offender, their father.\nFuqua argued that the children were at substantial risk of harm as a result of sexual abuse or sexual exploitation and that Sarah had failed to take reasonable action to protect them. He asked for a finding of dependency-neglect against Sarah with a safety plan ordering that Steven not have unsupervised contact with the children. Steven\u2019s criminal file was not made a part of this record.\nAn attorney ad litem appeared at the hearing on behalf of the children. She stated that she was bothered by the lack of proof and was unaware of any statute providing that a child is automatically dependent-neglected whenever they are living in the home with a registered sex offender.\nAfter the trial court denied appellees\u2019 motion for directed verdict, Sarah testified. She said that she believed that her children were safe while in the care of Steven and that, because they were her first priority, she would leave him immediately if she thought they were in harm\u2019s way. She said that, since August 2005, as a condition of the plea agreement, Steven had been in counseling. Sarah said that Steven told her that he did nothing to the students and that she believed him. She stated that she and her husband decided that he should accept the plea agreement so that he would not go to prison and would be there to help her raise their children. She also said that, after a jury had been seated in his criminal trial, she and Steven had been informed that there were jurors who had already decided that he was guilty. Sarah discussed in great detail the close relationship that she, Steven, and the children have with the children\u2019s grandparents. She said:\nMy children are absolutely the most important thing in my life. I will do everything in my ability to protect my children. My parents and my husband\u2019s parents are vigilant and caring grandparents. If they thought anything was happening to their grandchildren I feel like I have a relationship with them such that they would come to me and say \u201cwe believe this, this is strange. This child is doing this.\u201d\nSarah was adamant about her children being safe and said that she considered herself a vigilant parent; that she had seen nothing to indicate that Steven was molesting her children; and that, if she did see such signs or if her children told her, she \u201cwould be out of that house immediately.\u201d Sarah stated that she had signed the safety plan only to prevent having her children taken from her. She testified that, although the safety plan had made her life \u201chell,\u201d she had followed it \u201cto a tee\u201d so that her children could stay in her home.\nElizabeth Cooper, a DHHS worker in Izard County, testified that she had been assigned to this case and had visited appellees\u2019 home. She stated that she believed Sarah\u2019s statement that she would leave Steven if the children were in danger. She said that, when she was at their house, E.M. said \u201cDaddy doesn\u2019t do diaper duty,\u201d which indicated that they were following the plan. She stated that she believed that appellees were doing everything that DHHS had asked of them since the safety plan was put in place, even though it was a hardship. She stated that she had not removed the children from their parents\u2019 care because she did not have grounds to do so.\nAt the conclusion of the hearing, appellees renewed their motion to dismiss. The attorney ad litem stated that she was not in a position to make a recommendation as to whether the court should find dependency-neglect because Fitch, who signed the affidavit, did not testify. The court found that DHHS did not meet its burden of proving by a preponderance of the evidence that the children were in imminent danger merely because Steven had been convicted of two sexual offenses and was a registered sex offender. On February 12, 2007, the court entered a dismissal order directing DHHS to close its case. DHHS filed a notice of appeal.\nDHHS argues on appeal that the trial court erred in refusing to find that the children were dependent-neglected because they were, as a matter of law, at substantial risk of harm because their mother had left them in the care of their father, who had pled guilty to sexual assault of teenage boys. The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark. Code Ann. \u00a7 9-27-325(h)(2)(B) (Supp. 2007). On appeal from a trial court\u2019s ruling in a dependency-neglect case, we will not reverse unless the trial court\u2019s findings are clearly erroneous, giving due regard to the trial court\u2019s opportunity to judge the credibility of the witnesses. Ark. Dep\u2019t of Human Servs. v. McDonald, 80 Ark. App. 104, 91 S.W.3d 536 (2002). In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Maxwell v. Ark. Dep\u2019t of Human Servs., 90 Ark. App. 223, 205 S.W.3d 801 (2005). Additionally, in matters involving the welfare of young children, we will give great weight to the trial judge\u2019s personal observations. Id.\nA dependent juvenile is defined in part as \u201cany juvenile who is at substantial risk of serious harm as a result of. . . (ii) Sexual abuse; . . . (iv) Sexual exploitation . . . .\u201d Ark. Code Ann. \u00a7 9-27-303(18)(A) (Supp. 2007). \u201cNeglect\u201d includes a parent\u2019s failure to take reasonable action to protect the juvenile from sexual abuse or sexual exploitation when the existence of this condition was known or should have been known. Ark. Code Ann. \u00a7 9-27-303(36)(A)(iii) (Supp. 2007).\nDHHS\u2019s entire case is premised on the assumption that it conclusively established that Steven assaulted the teenagers because he accepted a plea agreement and that this fact, in and of itself, requires a finding that the children are dependent-neglected because Sarah left them in their father\u2019s care before the safety plan was implemented. Even if we were to agree that Steven\u2019s guilty plea conclusively established that he assaulted the teenagers, we decline to hold that this fact alone is sufficient to establish that the trial court erred in finding that DHHS had not met its burden of proof. DHHS argues that, because, as a group, sex offenders are more likely than any other type of offender to be re-arrested for a new sexual assault, Sarah\u2019s children are, as a matter of law, dependent-neglected as a result of having been left alone with Steven, citing Ark. Dep\u2019t of Human Servs. v. Bixler, 364 Ark. 292, 219 S.W.3d 125 (2005). We disagree.\nIn that case, the offender, the children\u2019s step-grandfather, had been convicted of sexually abusing a family member (his niece), and DHHS put on evidence that one of the children had exhibited unusual behavior that cast suspicion on the offender; the agency did not simply rely on a legal conclusion. DHHS also cites Camarillo-Cox v. Ark. Dep\u2019t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005), in which the supreme court affirmed the termination of the mother\u2019s parental rights because, among other things, she married a convicted sex offender who, as a condition of his parole, could not have unsupervised contact with minors. Again, that case was fully litigated, and the mother\u2019s marriage was only one of many factors considered by the court. Here, other than appellees\u2019 admissions that Steven pled guilty, DHHS offered no evidence that appellees\u2019 children are dependent-neglected. In fact, Steven\u2019s judgment and commitment order, and rules of probation, which DHHS could have provided, are not in the record.\nThe circuit court was correct in holding that DHHS did not meet its burden of proof.\nAffirmed.\nMarshall and Miller, JJ., agree.\nDHHS appears to argue that the children should have been found to be dependent-neglected as to both parents. However, at the hearing, DHHS focused only on Sarah.\nDHHS\u2019s assumption is faulty, in light of the current state of Arkansas law as to the collateral-estoppel effect of a guilty plea in a subsequent civil proceeding. In Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999), the supreme court overruled prior case law and held that the criminal conviction of a life-insurance beneficiary of first-degree murder of the insured following a trial collaterally estopped the retrial of certain issues in a later civil trial concerning the disposition of the proceeds of the insurance policy. The court cautioned that it did not address the issue of collateral estoppel for criminal convictions other than murder and that it did not overrule Washington National Insurance Co. v. Clement, 192 Ark. 371, 91 S.W.2d 265 (1936) (holding that a judgment in a criminal prosecution for DWI did not bar a subsequent civil proceeding founded on the same facts).\nIn its statement of the case, DHHS states: \u201cThe Mitchells did not comply with the safety plan.\u201d Also, DHHS says in its brief that \u201cSarah knowingly violated this safely [sic] plan agreement.\u201d We find no support in the record for these assertions. Although Sarah admitted having left the children with Steven after his guilty plea and before the implementation of the safety plan, she adamandy denied having done so afterward.", "type": "majority", "author": "Karen R. Baker, Judge." } ], "attorneys": [ "Gray Allen Turner, Office of Chief Counsel, for appellant.", "Glen Hoggard, for appellee.", "Sharron P. Glaze, attorney ad litem, for the minor children." ], "corrections": "", "head_matter": "ARKANSAS DEPARTMENT of HEALTH and HUMAN SERVICES v. Steven MITCHELL and Sarah Mitchell\nCA 07-427\n263 S.W.3d 574\nCourt of Appeals of Arkansas\nOpinion delivered September 26, 2007\nGray Allen Turner, Office of Chief Counsel, for appellant.\nGlen Hoggard, for appellee.\nSharron P. Glaze, attorney ad litem, for the minor children." }, "file_name": "0045-01", "first_page_order": 73, "last_page_order": 79 }