The opinion
Cite as 2023 Ark. App. 405
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-23-150
ARKANSAS DEPARTMENT OF HUMAN
Opinion Delivered September 27, 2023
SERVICES
APPELLANT
APPEAL FROM THE HOT SPRING
V. COUNTY CIRCUIT COURT
[NO. 30JV-22-100
AMBERLEY STEPHENS, AMANDA
MITCHELL, AND JUNIEL MONTELARA HONORABLE CHRIS E WILLIAMS,
JUDGE
APPELLEES
AFFIRMED IN PART; REVERSED
AND DISMISSED IN PART
ROBERT J. GLADWIN, Judge
This appeal comes to the court from an order of the Hot Spring County Circuit Court
declining to adjudicate the children of Amberley Stephens, Amanda Mitchell, and Juniel
Montelara dependent-neglected.1 On appeal, the Arkansas Department of Human Services
(DHS) argues that the circuit court’s denial of the petition for dependency-neglect conflicts
with the court’s order that MC1 shall remain in foster care and requires reversal. We affirm
the circuit court’s dependency-neglect finding, reverse the portion of the court’s order
requiring that MC1 remain in foster care and DHS custody, and dismiss.
1
Stephens is the stepmother of MC1, MC2, and MC3 and is the biological mother
of MC4 and MC5. Amanda Mitchell is the biological mother of MC1, MC2, and MC3.
I. Background Facts
On September 1, 2022, DHS exercised a seventy-two-hour hold on MC1, MC2, MC3,
MC4, and MC52 in order to protect the juveniles from immediate danger to the juveniles’
health or physical well-being. Two of the five children, MC1 and MC2, alleged that their
father, Juniel Montelara (Montelara) had sexually abused them. The juveniles also alleged
that their stepmother, Amberley Stephens (Stephens), knew of the abuse but failed to take
any action. DHS had a history of investigating sexual abuse allegations in the family.
On September 6, 2022, DHS filed a petition for ex parte emergency custody and
dependency-neglect of the juveniles, pleading sexual abuse, neglect, and parental unfitness
as the basis for granting the petition. That same day, the circuit court entered an ex parte
emergency order for custody and placed custody of the juveniles with DHS. On September
13, the court held a probable-cause hearing after which the circuit court entered an order
(filed on September 30) wherein the court found probable cause existed for the emergency
order to remain in place.
The circuit court held an adjudication hearing on November 8 and heard testimony
from MC1, Stephens, Montelara, and Debbie McClanahan. MC1 testified as to the alleged
sexual abuse by her father; said that she did not feel comfortable at home because of the
abuse taking place; specifically testified that “he would always make me get in the shower
2
The juveniles involved are MC1, a female born on May 11, 2007; MC2, a female
born on July 26, 2008; MC3, a male born on August 31, 2009; MC4, a female born on July
29, 2019; and MC5, a female born on July 30, 2019.
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with him,” that he “made me have sex with him in the front seat,” that he “strapped me
down to the bed,” that “he put his penis in my front area again,” and that her father forced
her to watch porn videos. MC1 further stated that she felt safer in foster care because she
did not want the abuse to continue. MC1 also expressed concern for her siblings and alleged
that she told her stepmother—Stephens—of the abuse, but that it continued after this
conversation.
Montelara testified and admitted that MC1 had previously made other allegations of
sexual abuse—which resulted in investigations “into every single one”—but those had been
“unsubstantiated.” He also acknowledged other allegations of abuse by MC2, including
those of sexual abuse. However, Montelara denied the allegations and noted discrepancies
in MC1’s testimony, such as the brand of the vehicle where the rape took place. He suggested
that MC1 made the allegations in response to his rule against dating and because of a “40
year old that she was talking to.” Stephens and Stephens’s mother, Debbie McClanahan,
both denied having knowledge of MC1’s allegations and agreed that the accusations were in
response to Montelara’s refusal to allow MC1 to date.
The circuit court denied DHS’s dependency-neglect petition and held as follows:
[MC1] made one statement and the parents made another. There were previous
investigations that were unsubstantiated. There should have been a psychological
evaluation in one of those investigations that the Court should have received today
but was not given. The Court needs more than the Court received today. This is a
“he said she said” issue. The Court finds that the Department has failed to meet its
burden to prove the juveniles are dependent-neglected. The Department has not
proven its case.
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The Department shall keep a protective services case open. The Court is only worried
about [MC1] at this time. There is no proof that the other children were abused.
[MC1] shall remain in foster care and the other juveniles shall be returned to the
custody of the parents. As to [MC1] the Court finds that it is contrary to the welfare
of the juvenile to go home and foster care is the least restrictive means to protect the
child at this time but does not make any findings as to adjudication. Custody of
[MC2] and [MC3] is hereby returned to the custody of the parent, Juniel Montelara.
Custody of [MC4] and [MC5] is hereby returned to the custody of the parents,
Amberley Stephens and Juniel Montelara.
Further, the court held that the attorney ad litem shall remain in place and entered a Rule
54(b) certificate, making this a final adjudication. Even so, the circuit court held that
jurisdiction of the case would continue with a review hearing to take place on January 10,
2023.
After the circuit court announced its ruling at the hearing, DHS objected, arguing
that the juvenile code does not permit a juvenile to remain in foster care without a
dependency-neglect finding and requested that the circuit court make a parental-unfitness
finding if it intended to keep MC1 in foster care. The court, however, maintained its
position, stating that the court could “still leave a protective services case upon the child
through the Ad Litem.” Furthermore, the circuit court reiterated its concern in MC1
returning home with Montelara and Stephens, maintaining that “if she goes back in, then I
can tell you, the whole household is going to blow up.”
The circuit court entered the adjudication-hearing order on December 20, 2022, and
DHS filed a timely notice of appeal. This one-brief appeal followed.
II. Standard of Review
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The purpose of an adjudication hearing is to determine whether the allegations in
the petition are substantiated by the proof. Ark. Dep’t of Hum. Servs. v. Hall, 2021 Ark. App.
108, 618 S.W.3d 219. The burden of proof at an adjudication hearing is preponderance of
the evidence. Id. In dependency-neglect cases, the standard of review on appeal is de novo,
but the appellate court will not reverse the circuit court’s findings unless they are clearly
erroneous. Hilburn v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 420, 558 S.W.3d 885. 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. Hall, supra. Moreover, in reviewing dependency-neglect adjudications, we 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, 378 S.W.3d 258.
III. Points on Appeal
DHS argues that (1) the circuit court erred by not adjudicating the juveniles
dependent-neglected; and (2) the circuit court committed error when it ordered that MC1
remain in foster care without a dependency-neglect finding.
IV. Discussion
The circuit court’s order held that DHS failed to meet its burden to prove the
juveniles dependent-neglected but, nonetheless, that a protective-services case remain open
for MC1 and that she remain in foster care. Regarding the other four juveniles, the court
held there is no proof that they were abused; therefore, they were returned to the custody of
the parents. On appeal, DHS maintains that the court’s findings are inconsistent because
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the Juvenile Code does not allow a juvenile to remain in foster care without a dependency-
neglect finding. Accordingly, DHS argues, the circuit court’s order is clearly erroneous and
should be reversed. We agree that the court’s findings are inconsistent, and the court’s order
for MC1 to remain in foster care is not in accordance with Arkansas law.
In dependency-neglect proceedings, we give great deference to the circuit court since
it is in a far superior position to judge the credibility of the witnesses. Minor Children v. Ark.
Dep’t of Hum. Servs., 2019 Ark. App. 588, 589 S.W.3d 495. Arkansas Code Annotated
section 9-27-303(17)(A) (Supp. 2023) defines a “dependent-neglected juvenile” as
[a]ny juvenile 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:
(1) Abandonment;
(2) Abuse;
(3) Sexual abuse
(4) Sexual exploitation;
(5) Neglect;
(6) Parental unfitness; or
(7) Being present in a dwelling or structure during the manufacturing of
methamphetamine with the knowledge of his or her parent, guardian, or custodian.
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)(A) (Repl. 2020), and such
allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-
325(h)(2)(ii) (Supp. 2023). The focus of an adjudication hearing is on the child, not the
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parent; at this stage of a proceeding, the Juvenile Code is concerned with whether the child
is dependent-neglected. Skalski v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 433, at 4.
Here, after listening to the testimony of MC1 as well as Montelara, Stephens, and
Stephens’s mother, the circuit court held that DHS had not proved by a preponderance of
the evidence that MC1 was dependent-neglected. While the court’s order made no specific
findings regarding credibility—instead qualifying this as a “he said she said” issue—the circuit
court was clear in its determination that DHS failed to meet its burden of proof. In reaching
this conclusion, the circuit court had to have given greater weight to the testimony of
Montelara, Stephens, and McClanahan, rather than that of MC1. This the circuit court was
free to do, as it is vested with the responsibility of making credibility determinations. Because
this court does not act as a “super-fact-finder” or substitute our judgment for that of the
circuit court, we cannot conclude that the court made a firm and definite mistake in its
dependency-neglect finding. See Bean v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 350, 498
S.W.3d 315.
However, we do find that the circuit court committed clear error when it ordered that
MC1 was to remain in foster care without a dependency-neglect finding. Additionally, the
court’s justification for keeping MC1 in foster care while dismissing the case regarding her
four siblings because “[t]here is no proof that the other children were abused” is also
erroneous. Arkansas Code Annotated section 9-27-303(17)(A) mandates that a finding of
dependency-neglect of a sibling can establish that another sibling is at substantial risk of
serious harm. Furthermore, our case law supports a circuit court’s finding of dependency-
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neglect for any sibling of a child who has suffered neglect or abuse—even though there is no
reason to think that the other siblings have also been abused or neglected. See Eason v. Ark.
Dep’t of Hum. Servs., 2012 Ark. App. 507, 423 S.W.3d 138. Therefore, DHS was not required
to prove the dependency-neglect basis as to each juvenile. Accordingly, the court’s order
mandating MC1 to remain in foster care while her siblings return to the custody of the
parents is clearly erroneous and must be reversed.
Moreover, the court cites no precedent—and we have found none—that gives a circuit
court the authority to deny a dependency-neglect petition but nonetheless order a juvenile
to remain in foster care and instruct DHS to keep a case open as to only one of five siblings.
When DHS raised its objection and concerns at the hearing, the circuit court adamantly
proclaimed that it could “open up a protective services case for the young lady and see how
this works out.” After counsel for the parents stated that they were “fine” with MC1 staying
with her aunt “indefinitely,” the court specified that counsel needed to prepare an agreed
order reflecting that MC1’s case was still pending “only for the purposes of protecting the
family unit.” However, no agreed order was ever entered.
Arkansas Code Annotated section 9-27-329(a) (Supp. 2023) states: “If the circuit
court finds that the petition has been substantiated by the proof at the adjudication hearing,
a disposition hearing shall be held for the court to enter orders consistent with the
disposition alternatives.” Further, the statute requires that in considering the disposition
alternatives, the court “shall give preference to the least restrictive disposition consistent with
the best interest and welfare of the juvenile. . . .” Here, the court uses the least-restrictive-
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disposition language of the statute in its order when holding that MC1 must remain in foster
care while expressly holding that it is not making “any findings as to adjudication.” Because
the court declined to adjudicate MC1 dependent-neglect, it cannot jump to the disposition
alternative of foster care without the requisite finding. While we acknowledge the circuit
court’s finding that “it is contrary to the welfare of [MC1] to go home” and are sympathetic
to the court’s express concerns regarding MC1, a circuit court simply cannot require a
juvenile to remain in DHS custody without the requisite authority to do so. Pursuant to
Ark. Code Ann. § 9-27-329(a), disposition alternatives such as foster care may be explored
only after a dependency-neglect finding. Thus, the portion of the circuit court’s order
requiring MC1 to remain in foster care and in DHS custody—despite the court’s declination
to adjudicate the juveniles dependent-neglected—is reversed, and the case is thereby
dismissed.
V. Conclusion
Giving due deference to the circuit court’s dependency-neglect finding, we cannot say
that the court’s conclusion was clearly erroneous; however, the portion of the order
mandating that MC1 remain in foster care is reversed and the case is accordingly dismissed.
Affirmed in part; reversed and dismissed in part.
GRUBER and MURPHY, JJ., agree.
Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for
appellant.
One brief only.
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