as: 76 Ark.App. 71, 61 S.W.3d 184)
of Appeals of Arkansas, Divisions II and III.
Snow BURKS and Larry Burks
DEPARTMENT OF HUMAN SERVICES.
was sufficient to prove beyond a reasonable doubt that continued
custody of Indian children by their mother and father was
likely to result in serious emotional or physical damage to
children, as required for termination of parental rights under Indian
Child Welfare Act (ICWA); father failed to complete ordered anger
management and domestic violence counseling, mother alleged that father whipped
two of the children with a belt, leaving bruises, and
mother maintained daily contact with father after being ordered not
to do so. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
chancery cases Court of Appeals reviews the case de novo,
but it does not reverse findings of the chancellor unless
they are clearly erroneous or clearly against the preponderance of
the evidence. Rules Civ.Proc., Rule 52(a).
finding is "clearly erroneous" when, although there is evidence to
support it, the reviewing court on the entire evidence is
left with the definite conviction that a mistake was committed.
reviewing a chancery court's findings, Court of Appeals gives due
deference to the court's superior position to determine the credibility
of the witnesses and the weight to be accorded their
of occupational therapist and director of domestic violence intervention program
was sufficient to satisfy qualified expert witness testimony requirement for
termination of mother and father's parental rights to their Indian
children under the Indian Child Welfare Act (ICWA); therapist had
degree in occupational therapy and was knowledgeable and experienced in
psychology, therapist had worked with one of the children intermittently,
and director testified that father did not attend sessions of
domestic violence program, and that domestic violence was not a
"quick fix thing," and that program lasted 26 weeks. Indian
Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Timothy C. Sharum, Fort Smith, for appellant.
Kathy L. Hall, Office of Chief Counsel, Little Rock, for
TERRY CRABTREE, Judge.
The appellants, Larry and Donna Burks, appeal from an order
from the Sebastian County Chancery Court, in which the court
terminated their parental rights. Larry and Donna are separate appellants
in this case. Appellants argue on appeal that the appellee,
Arkansas Department of Human Services ("DHS"), did not meet its
burden of proof, and that DHS was required, but failed
to submit, expert testimony pursuant to the Indian Child Welfare
Act. We find
no error, and affirm.
On September 20, 1996, the appellee filed a petition for
emergency custody of Joseph Burks, born January 7, 1996, alleging
that the child was dependent/neglected under Arkansas law. An affidavit
from a DHS caseworker alleged that the child had suffered
a fractured femur and the mother's explanation of how the
injury occurred was inconsistent with the type of injury. An
Order for Emergency Custody was entered, and on November 18,
1996, an Agreed Adjudication Order was entered **186
and the child was adjudicated as dependent/neglected with custody remaining
A similar proceeding took place with appellants' minor child Larry
Ray Burks, born January 6, 1995. An affidavit from a
DHS caseworker alleged an incident of abuse by Mr. Burks.
An Agreed Adjudication Order was also entered on November 18,
1996, custody continuing with DHS.
Appellants were directed to do certain things to reach the
goal of reunification, including a psychological evaluation, completion of parenting
classes, visiting regularly with the children, and cooperating with the
DHS caseworker. Review hearings were conducted throughout 1997, with a
review order entered on August 12, 1997, returning custody of
the children to appellants, with a protective services case continued
by DHS. The court entered a review order on February
4, 1998, in which it found that appellants had complied
with the court's orders and the DHS case plan.
On June 16, 1998, Mrs. Burks reported to her caseworker
that Mr. Burks had whipped the two older boys with
a belt and had left bruises from the incident. She
stated that she left Mr. Burks. A review hearing was
held on June 30, 1998, in which the court continued
custody with the mother, appellant Mrs. Burks. Mr. Burks did
not appear, but was ordered to have no contact with
the children or Mrs. Burks, and was to attend counseling
for anger management and domestic violence issues. Mrs. Burks was
ordered not to have any contact with Mr. Burks.
Another review hearing was held on December 1, 1998, at
which neither of the appellants appeared. The court issued a
bench warrant for Mrs. Burks, and she was arrested on
January 28, 1999. That same date, custody of the children
was placed with DHS. DHS also filed a petition for
emergency custody of appellants' youngest child, William Burks, born December
10, 1997, and custody was placed with DHS. Review hearings
were subsequently held, in which Mrs. Burks was told not
to have any contact with Mr. Burks. On January 6,
2000, the court found that the goal was *75
to reunify the children with Mrs. Burks. Mrs. Burks was
ordered to report if she learned the whereabouts of Mr.
Burks, saw him, or talked to him.
On February 15, 2000, appellee filed for termination of parental
rights. The court entered an order terminating appellants' parental rights
and granting power to consent to adoption as to the
appellants' children. It is
from this order that appellants appeal.
Arkansas Code Annotated § 9-27-341(b)(3)(Supp.2001)
An order forever terminating parental rights shall be based upon
a finding by clear and convincing evidence;
That it is in the best interest of the juvenile,
including consideration of the following factors:
The likelihood that the juvenile will be adopted if the
termination petition is granted; and
The potential harm, specifically addressing the effect on the health
and safety of the child, caused by continuing contact with
the parent, parents, or putative parent or parents;
Of one (1) or more of the following grounds:
That a juvenile has been adjudicated by the court to
be dependent-neglected and has continued out of the home for
twelve (12) months and, despite a meaningful effort by the
department to rehabilitate the home and correct the conditions which
caused removal, those conditions have not been remedied by the
In this case, appellee cited (3)(B)(i)(a) as the grounds on
which it sought to terminate parental rights. Further, the children
are of Cherokee Indian descent through their father, and thus
this case is controlled by the Indian Child Welfare Act,
25 U.S.C. § 1901
The Indian Child Welfare
Act in 25 U.S.C. § 1912(f)
(1988) provides in pertinent part that:
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony by qualified expert *76
witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.
Thus, it must be shown by proof beyond a reasonable
doubt that the continued custody with appellants is likely to
result in serious emotional or physical damage to the children.
Appellants argue this burden has not been met. We disagree,
and note that the trial court specifically states on page
two of its opinion that it finds the "Department has
proved all the necessary elements of the case beyond a
chancery cases we review the case de
novo, but we do not
reverse findings of the chancellor unless they are clearly erroneous or
clearly against the preponderance of the evidence Ark. R. Civ. P. 52(a);
Presley v. Presley,
66 Ark.App. 316, 989 S.W.2d 938 (1999). A finding is clearly
erroneous when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite conviction that
a mistake was committed. Turner
v. Benson, 59 Ark.App.
108, 953 S.W.2d 596 (1997). In reviewing a chancery court's
findings, we give due deference to the court's superior position to determine
the credibility of the witnesses and the weight to
be accorded their testimony. Hunt
v. Hunt, 341 Ark. 173,
15 S.W.3d 334 (2000).
As to the evidence with respect to Mr. Burks, it
showed that Mr. Burks was ordered to undergo anger management
and domestic violence counseling, however Mr. Burks attended one meeting
and never returned. Mr. Burks failed to exercise any visitation
with the children from June 1998 through January 1999, during
which time he could have visited with the children. There
were also the allegations of the whipping with the belt
leaving bruises on two of the children. Also, initially Joseph
Burks, was taken by DHS as a result of allegations
of abuse when his leg was broken. Further, allegations of
abuse were what prompted DHS to take Larry Ray Burks
The evidence as to Mrs. Burks showed that she maintained
daily contact with Mr. Burks after being ordered not to
do so. She was ordered by the court to report
if she knew where Mr. Burks was, or if she
heard from him. She did not follow these orders. Paula
Davis testified that Mrs. Burks dropped Mr. Burks off at
work every morning. The trial court noted that Mrs. Burks
said at the hearing that if DHS would get out
of her life she would reunite with Mr. Burks, and
would return the children to their home.
Based on the above evidence, we hold that the chancellor
did not err when he found that appellee had proven
all the necessary elements of the case beyond a reasonable
Mrs. Burks argues that appellee failed to present expert testimony to
support its allegations as required by the Indian Child Welfare Act. Under
25 U.S.C. § 1912(f), in order for parental rights to be terminated,
not only must appellee's case be proven beyond a reasonable doubt, it
must also be supported by the testimony **188
of "qualified expert witnesses." Guidelines for
state courts have been promulgated by the Bureau of Indian Affairs to
assist in defining a qualified expert witness under the Act. 44 Fed Reg.
67584 (1979). While not binding on this court, section D.4(b)
of the guidelines sets the following as the persons who are most likely
to meet the requirements of a qualified expert witness for purposes of
Indian child custody proceedings:
A member of the Indian child's tribe who is recognized
by the tribal community as knowledgeable in tribal customs ...
A lay expert witness having substantial experience in the delivery
of child and family services to Indians ...
A professional person having substantial education and experience in the
area of his or her specialty.
In the case at bar, Mr. Artie Marino, an occupational
therapist, testified that he has a degree in occupational therapy,
and is knowledgeable and experienced in the area of psychology.
He has been working with children since 1994, and has
previously worked as a residential counselor for emotionally
disturbed children. He has experience working with children who have
witnessed domestic violence or have been victims of domestic violence.
He has worked with Joseph Burks intermittently since May 1997.
Appellee asked Mr. Marino, to opine whether Joseph exhibited any
signs of being involved in a domestic violence situation. Mr.
Burks objected to the question on the basis that the
witness was not qualified. Appellee responded that even though Mr.
Marino does not have any credentials in psychology, he does
have experience in counseling and in domestic violence. The court
then overruled the objection. Mr. Marino testified that Joseph was
very delayed, not developing his fine motor skills properly, and
was exhibiting behaviors he would have gone through at age
one or two had he been in a safe environment.
Mr. Marino testified that when he visited with Joseph last,
in April 1999, he was performing at twenty-two months when
chronological age was thirty-eight months. He testified that Joseph has
progressed while he has been in therapy.
Ms. Jackie Hamilton, the director of the Domestic Violence Intervention
Program, testified that appellant, Mr. Burks, inquired about a domestic
violence program, but did not attend the sessions. Ms. Hamilton
testified without objection. Hamilton testified that domestic violence is not
a "quick fix thing" and that her program lasts twenty-six
weeks. She testified that statistically, victims leave their abusers six
times before they finally leave for
good. She also testified that children learn to act violently
from watching their parents, and testified about the emotional and
physical problems that would likely occur in these children as
a result of witnessing domestic violence. She further testified that
from an emotional standpoint, the symptoms are identical from children
who have been in a violent home and observed violent
behavior, with children who have been sexually abused. She testified
that children who are raised in a violent home are
twenty-four times more likely to commit rape or assault against
another individual, and they are seventy-four percent more likely to
commit a crime against a person.
We hold that the above testimony was sufficient to satisfy
the qualified expert witness testimony requirement of the Indian Child
Welfare Act. We hold that Mr. Marino and Ms. Hamilton
possess adequate experience, and have unique qualifications to sufficiently satisfy
the statute's requirements. We note that the Cherokee Nation agreed
at trial that the parental rights of appellants should be
We have found nothing in the record to suggest that
the purpose of the Act has been compromised in this
ROBBINS, BIRD, and BAKER, JJ., agree.
VAUGHT and JENNINGS, JJ., dissent.
JOHN E. JENNINGS, Judge, dissenting.
I am unable to agree that the requirements of the
federal statute, 25 U.S.C. § 1912(f)
have been met in this case. Perhaps the leading case
in this area of the law is In
the matter of N.L.,
754 P.2d 863 (Okla.1988). There the Oklahoma Supreme Court said:
showing that continued custody of the child by the parent
is likely to result in serious emotional or physical harm
the child is necessary. Testimony from a qualified expert witness
indicating that such harm will result from continued custody of
the parent is sufficient. Where cultural bias is clearly not
implicated, expert witnesses who do not possess special knowledge of
Indian life may provide the necessary proof that continued custody
of the child by the parent will result in serious
emotional or physical harm to the child.
at 868 (citations omitted).
Social workers may qualify as expert witnesses under the Act
but to do so they must possess "expertise beyond the
normal social worker qualifications." In
the Matter of N.L., id.; State ex rel. Juvenile Dep't
70 Or.App. 10, 688 P.2d 1354 (1984); In
31 Wash.App. 550, 643 P.2d 887 (1982); In
the Matter of M.E.M.,
195 Mont. 329, 635 P.2d 1313 (1981).
Mr. Marino, an occupational therapist, clearly does not qualify as
an expert witness under the Act, and not even the
department contends that he does. On this record I cannot
conclude that Ms. Hamilton has been shown to possess "expertise
beyond the normal social worker qualifications." Furthermore, I cannot say
that cultural bias is clearly not implicated in the case
at bar. Finally, neither Mr. Marino nor Ms. Hamilton testified
that the continued custody of the child by the parent
would be likely to result in serious emotional or physical
damage to the child. See
In the Matter of N.L., supra; In the Matter of
140 Mich.App. 594, 364 N.W.2d 754 (1985).
Apart from the question of whether the federal statute has
been complied with, I have other concerns. The department's involvement
began when one of the children suffered a broken leg
under suspicious circumstances. The children were returned to the home
until Mr. Burks spanked them hard enough to leave bruises,
and the court ordered Mrs. Burks to have no contact
with Mr. Burks. At this point the department's goal was
to reunify the children with Mrs. Burks. It appears that
she complied with the instructions of the department and the
orders of the court except that, when Mr. Burks' car
broke down, she took him back and forth to work.
This clearly precipitated the department's decision to terminate her parental
I neither condone nor excuse Mrs. Burks' conduct, but question
whether this a sufficient basis to seek to sever the
bond between mother and child. I recognize that both the
trial court and *80
the department are hurried by the legal requirements as to
time imposed by Ark.Code Ann. § 9-27-337
& 338 (Supp.1999), as well as the practical consideration that
a child neither returned to the home nor given a
new permanent home will soon become an adult. Even so,
we might do well to remember the supreme court's admonition**190
284 Ark. 191, 680 S.W.2d 704 (1984):
best interest of the child is a matter of primary
concern in adoption proceedings. Termination of the maternal relationship is
much more far reaching than a change of custody. Adoption
changes the natural relationship between parent and child; it changes
the course of lives, the manner of inheritance, the people
with whom the child associates, and cuts the ties and
relationship between the child and the family of the parent
whose rights are terminated. To make a decision based solely
upon the best interest of the child could be a
dangerous thing. A literal interpretation of what is in the
best interest of the child could conceivably lead to a
decision to award the child to the parties who were
able to furnish the most material things for the comfort
and pleasures of life. The wealthy, even though strangers, could
take the children of the poor because the children would
obviously be better off in a
home of plenty. The phrase "best interest of the child"
means more than station in life and material things. "Best
interest of the child" includes moral, spiritual, material and cultural
values, matters of convenience and friends and family relationships. We
have recognized as a cardinal principle of law and nature
that parents who are able to support their child in
their own style of life, however poor and humble they
might be, should not be deprived of parental privileges, except
when urgently necessary to afford the child reasonable protection. (Citation
I respectfully dissent.
VAUGHT, J., joins in this opinion.
76 Ark.App. 71, 61 S.W.3d 184