Clark v. Arkansas Dept. of Human Services

• Decision Date: 13 April 2005
• Docket Number: No. CA 04-967.,CA 04-967.
• Citation: 206 S.W.3d 899
• Parties: William Keith CLARK, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.
• Court: Arkansas Court of Appeals

206 S.W.3d 899

William Keith CLARK, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.

No. CA 04-967.

Court of Appeals of Arkansas, Divisions IV, I.

April 13, 2005.

Martha O. Carder, Little Rock, for appellant.

Gray Allen Turner; and Stasia Burk, Attorney Ad Litem, Little Rock, for appellees.

WENDELL L. GRIFFEN, Judge.

William Keith Clark appeals from an order adjudicating his two sons, G.C. and J.C., dependent-neglected. He argues that the trial court erred in not appointing counsel for him at the adjudication hearing. He also challenges the sufficiency of the evidence finding the children dependent-neglected. We hold that the trial court erred in failing to appoint appellant counsel prior to the adjudication hearing. Therefore, we reverse and remand.

The Arkansas Department of Human Services ("DHS") filed a petition for dependency-neglect on May 3, 2004, alleging physical abuse against G.C. and mental abuse against J.C.¹ As a result of the incident, Karen Clark (appellant's wife and G.C. and J.C.'s mother) agreed to a safety plan with DHS. Among other things, Mrs. Clark agreed to not allow appellant to be around the children during the pendency of the investigation.

Before the hearing, appellant asked the court to appoint him counsel; however, the trial judge's law clerk sent appellant and Mrs. Clark a letter stating that they did not qualify financially for a court-appointed attorney. When appellant arrived at the hearing without counsel, the following exchange occurred:

COURT: And the Court will note for the record that, in this matter, Mr. Clark filled out an Affidavit of Indigency requesting an attorney, and the Court denied that based on the income that was presented to the Court and the fact that four people were living in his home.

Subsequently, I think my law clerk had some contact with either him and/or mom, or either one, and indicated to mom that she needed to-if she wanted a court-appointed attorney, that she needed to indicate that she was unemployed but Mr. Clark was providing some financial support to the home. So mom did that, and the Court appointed Ms. Free to represent her.

And Mr. Clark never asked to be considered for a court-appointed attorney after that.

Mr. Clark, have you sought the services of an attorney? . . .

* * *

APPELLANT: I thought filling out the papers was the court-appointed attorney. I was denied that, as you have said, and I contacted an individual, and he has to have a $5,000 retainer fee and—

COURT: Contacted an attorney?

APPELLANT: Since then, yes.

COURT: You said "an individual." I just wanted to know if they were an attorney.

APPELLANT: Yes, ma'am, I'm sorry.

COURT: Who needed a $5,000 retainer?

APPELLANT: Yes. So I didn't proceed or pursue it.

COURT: At this point, are you able to separate how much money you're living on from the money that you are living the family?

APPELLANT: Everything I'm making is going into the bank, and she's paying bills, and they're living on it. I'm just getting gas and what I have to have.

COURT: And where are you living, Mr. Clark?

APPELLANT: I'm living in Texas—east Texas.

COURT: If this matter proceeds, do you want the Court to take up the issue of whether you would be entitled to a court-appointed attorney based on your income, as best we can—as Jethro says— "cipher" it?

APPELLANT: I don't understand "if this Court proceeds."

COURT: If the petition is not dismissed today. I don't have a clue what's going to happen.

APPELLANT: Oh.

COURT: That's what I'm saying. If the petition is dismissed, of course, you wouldn't need one. If the Court proceeds and there is a finding of dependency/neglect, either after an agreement which is accepted by the Court or after an adjudication where I make that determination, that's what I meant "if we proceed."

APPELLANT: I understand.

COURT: Yes.

APPELLANT: Yes, ma'am.

COURT: And actually, then that may make a whole different thing. If all the money is going to her, then she may not be indigent. See, that doesn't make any sense either. That's not the information I had here. So if most of your money is going to her and the family, then they may not be indigent for your income, the bulk of it, based— because if I'm not mistaken, you bring home—

APPELLANT: Your Honor?

COURT:-$558 every week; right?

APPELLANT: I'm sorry?

COURT: That's what—$558 a week?

APPELLANT: Yes, ma'am.

COURT: And how much of that 558 a week goes to your wife?

APPELLANT: It all goes into the bank.

COURT: I know, but aren't you drawing some of it out? You have got to be getting money from somewhere if you are living in—

APPELLANT: Just, like I said, enough to get for gas and $20, $30 to make it through the week.

COURT: I got you.

APPELLANT: And everything else goes to pay bills, and not much left over when we do that.

COURT: Okay. So Mrs. Clark; is that right? You're getting the bulk of the money?

Ms. CLARK: Yes, ma'am. Well—

COURT: Well then, you're not indigent. I'm listening. Keep going.

Ms. CLARK: I have—he's a minister.

COURT: I understand that.

Ms. CLARK: And the church deacon just puts his check into the bank, and I write out the bills. He had been paying all the bills—

COURT: Right.

Ms. CLARK:—before he was removed from the home.

COURT: Right.

Ms. CLARK: But he still has access to withdraw some cash from the ATM where he is. He has done so. He took 100, and he took 50, and he's withdrawn the 50.

COURT: I got you.

Ms. CLARK: I'm not sure what the total is, but he hasn't taken a lot of money out of it, but—

* * *

MS. CLARK: Your Honor, out of that money, I have been paying for him his truck payment, which is 339 a month.

COURT: Oh, I'm not talking about the—

MS. CLARK: You didn't need to know that? Okay.

COURT: Hold on. No, I don't need to know that because everybody's got—not everybody—but most people have obligations. I look at the income that comes in, the net income, and the number of persons in the home based on that income. Everybody's got bills. Some people make a million dollars and spend two, so—

MS. CLARK: Yes, ma'am.

COURT: Okay. Oh, goodness. So what I will do then is, I will—if this proceeds and I will appoint an attorney for dad, and then I'm going to reserve the right to order everybody or anybody to pay a reasonable amount of attorney's fees. If I do that, it may be partial, and it may just be a reasonable amount of money. So I will just do that.

Regarding the allegations stated in the petition for dependency-neglect, Lawrence Barron testified that DHS received a report alleging that appellant wrapped a belt around G.C.'s neck. Barron talked to G.C., who told him that on April 20, 2004, appellant left the house and told G.C. that if he wanted to go somewhere, he needed to call first. G.C. told appellant he was seventeen and did not need to call him or tell him anything. When appellant returned, G.C. was playing video games. Appellant told G.C. that he was glad that G.C. was there because "I would have had to put this belt on you." The two exchanged words, "one thing led to another," and appellant put the belt around G.C.'s neck. G.C. told Barron that while appellant pulled the belt tight around his neck, he did not cut off his airway. The belt left red marks around G.C.'s neck. In his investigation, Barron also checked with child protective services in Quitman, Texas, and discovered that appellant had a history of physical abuse with another son.

Appellant's version of the story did not substantially differ from Barron's. He testified that he went to the hospital to visit a member of his church who was dying. When he returned home, he saw G.C. playing video games and said that he was glad to see him there and that if he were not there, he might have to use a belt on him. Appellant said that he smiled and that G.C. smiled back. G.C. then said that he was seventeen and could leave whenever he wanted. Appellant testified that the two were just playing and that at one point, he "just fell down on top of him with the belt and held him down against the love seat." He denied actually wrapping the belt around G.C.'s neck and stated that he was on G.C. for less than twenty seconds.

The trial court found both G.C. and J.C. dependent-neglected. It stated that even if appellant put the belt around G.C.'s neck in a non-hostile way—a contention it did not believe—his behavior was still inappropriate and caused marks that were still present three days after the incident occurred. The trial court found J.C. dependent-neglected based on the previous finding of abuse of an older sibling and because J.C. was at the house when the incident with G.C. occurred.

After the adjudication, the trial court asked the parties whether it would be unreasonable for appellant to move back into the house to participate in DHS's services. The trial court heard further testimony from Mrs. Clark, who stated that she was afraid of appellant because he had abused her in the past and because he might abuse her or the children again. She also testified that G.C. and J.C. were satisfied with appellant being out of the home because it was more peaceful and less tense.

Appellant testified that he was the sole breadwinner of the house and that Ms. Clark had no job. However, his church was going to vote the following Wednesday on whether he could stay based on what happened at the hearing that day. Appellant also testified that his family was in Texas and that both his mother-in-law and father-in-law had been sick. Both J.C. and G.C. said that they wanted to see their father and that they could work that out.

In its order, the trial court stated its findings of dependency-neglect. The order also placed the children in Mrs. Clark's physical custody, provided supervised visitation for appellant (to be worked out between DHS and appellant), and allowed appellant to have phone and mail contact with J.C. and G.C. The trial court later appointed counsel for appellant.

Appealability

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