Carroll v. Arkansas Department of Human Services

Karen R. Baker, Judge, dissenting. The majority affirms this case based upon the conclusion that when appellant stipulated to probable cause at the probable-cause hearing, she stipulated that each and every allegation set forth in the affidavit attached to the petition was true. That is not the case.

Appellant’s stipulation to probable cause was nothing more than an acknowledgment that if the preparer of the affidavit testified, the testimony would be that which was contained in the affidavit. While the judge could consider the testimony in the affidavit, which contained hearsay for purposes of this emergency proceeding, he could not find the allegations in the affidavit to be deemed admitted. See Price v. Price, 29 Ark. App. 212 , 780 S.W.2d 342 (1989); Burton v. Brooks, 25 Ark. 215 (1868) (holding that where parties stipulate that an agreed statement of what an absent witness would testify to if present may be read to a jury, this statement goes to the jury simply as testimony, and not as an absolute admission).

Hearsay is not excluded at the probable cause hearing and the affidavit was filled with hearsay upon hearsay. No separate evidence of the facts alleged in the complaint and upon which the majority relies was introduced. Without those allegations being deemed as admitted, there is insufficient evidence to support the trial court’s termination of parental rights.

For us to hold that a parent’s stipulation to probable cause results in an admission of each alleged fact is legally and procedurally unsound. First, the purpose of a probable cause hearing is specifically limited “to the purpose of determining whether probable cause existed to protect the juvenile and to determine whether probable cause still exists to protect the juvenile.” Ark. Code Ann. § 9-27-315 (B)(i) (Repl. 2002 & Supp. 2003). Although no case law directly addresses this issue, our supreme court has addressed the question of admissibility of testimony from a preliminary hearing to determine probable cause in the context of a criminal case. In Scott v. State, 272 Ark. 88, 92-93 , 612 S.W.2d 110, 112-13 (1981), the Arkansas Supreme Court stated:

There has traditionally been an exception to the right of confrontation where a witness who testified at a prior trial is unavailable at a later judicial proceeding. State evidentiary rules can fall within this exception if two tests are met. First, the witness must be “unavailable”.... Next, the evidence must be reliable.... [A]dmission depends upon the circumstances surrounding the hearing. In the case of a preliminary hearing admission depends upon what kind of hearing is involved and whether it is a “full fledged” hearing or a limited one.

(Citations omitted.) Compare Hamblen v. State, 44 Ark. App. 54 , 866 S.W.2d 119 (1993) (holding that testimony of child’s mother during temporary-custody probable-cause bearing regarding defendant father’s shaking of child, where defendant proceeded without counsel, was admissible under hearsay exception for former testimony, because the defendant’s motive to develop the testimony in the chancery case was very similar to his motive in the criminal case i.e., to avoid any implications of child abuse).

In Scott v. State, supra, the court found that the transcript of the probable cause hearing was not reliable because it violated the rules of evidence and violated the defendant’s Sixth Amendment right to confront a witness. The court reasoned that:

The appellants were represented by attorneys but were not obligated to cross-examine the witness. To presume that they should have done so would be to presume that they knew that the testimony could be used later in the absence of the witness. That would mean a preliminary hearing could not be one solely to learn if only probable cause existed.

Id. at 95, 612 S.W.2d at 113 . The sole purpose of the probable cause hearing is to determine whether probable cause existed. Ark. Code Ann. § 9-27-315 (B)(i).

Second, this limitation is necessary given the emergency nature of probable cause hearings and given that “[a]ll probable cause hearings are miscellaneous hearings as defined in Rule 1101(b)(3) of the Arkansas Rules of Evidence, and the rules of evidence, including, but not limited to, the Hearsay rule, Rule 802 of the Arkansas Rules of Evidence, are not applicable.” Ark. Code Ann. § 9-27-315 (e) (Repl. 2002 & Supp. 2003). Hearsay is accepted for the purpose of the hearing, that is, for the limited purpose of determining whether a cause of action can be articulated. As the court in Scott made evident, the testimony from such a hearing is not reliable if it fails to conform with the rules of evidence. Scott, 272 Ark. at 94 ; 612 S.W.2d at 111 . Therefore, the facts alleged in the affidavit could not be considered as evidence.

Without the admission of those facts into evidence, insufficient evidence supports the termination of parental rights. Regarding the employment issues, the testimony was that Mark was consistently employed even though he had various jobs throughout the time period. In fact, his reluctance to apply for housing in another community was based on transportation considerations related to his employment. The majority’s characterizations of the parent’s refusal to seek housing and their choice to live in hotels despite their meager incomes ignores DHS’s testimony that they had no resources to provide deposits and initial monies for establishing other living arrangements and that no other non-profit groups would assist in providing those resources. Neither did the Department’s case plan address this housing issue. The majority also ignores the year long waiting list for local housing options. As for the drug test, a single failed drug test for marijuana falls short of the burden to terminate parental rights.

Therefore, I would reverse.