dissenting. The issue in this case is whether the parents placed their children in danger by allowing them to have unsupervised, overnight visitation with a person who they knew, or had reason to suspect, was a convicted child sex offender. The majority would reverse on the ground that the children were not placed in danger because there was no “suggestion of abuse.” I dissent because the Child Maltreatment Act does not require proof of actual harm in order to have an offender’s name placed on the Child Maltreatment Central Registry. Accordingly, reasonable minds could have concluded, as the ALJ did, that because the Bixlers either knew or should have known of Bonds’s history of committing a sexual offense with a child, they endangered their children by leaving them in his exclusive care.
The majority fails to cite to all of the relevant portions of the ALJ’s order. In determining that the Bixler children had been neglected the ALJ reasoned, in relevant part, as follows:
In this case, sufficient evidence indicates that the Petitioners knew or should have known that their children’s step-grandfather, Roger Bonds, was a convicted sexual offender. This ALJ agrees that after the death of the children’s grandmother, the Petitioners had a duty to inquire about the “rumors” they had heard concerning Mr. Bonds’ conviction. This ALJ recognizes that the Petitioners believed that they had sufficiently “watched” Mr. Bonds over a seven (7)-year period. However, after the death of the children’s grandmother, circumstances in the Bonds’ home changed and there was only one adult in the home: "a convicted sexual offender.’’ At the very least, the Petitioners should have asked about the circumstances surrounding Mr. Bonds’ conviction; and, they should have assured that their children were not left alone in Mr. Bonds’ presence, especially overnight. Despite the ages of the Petitioners’ children, this ALJ finds that reasonable minds would find that it was not in the children’s best interests to remain overnight, without other adult supervision, in the home of a convicted sexual offender.
The Petitioners did not present any evidence that would lead this ALJ to find that the agency failed to meet its burden of proof in this matter. Therefore, I find that the agency met its burden of proof against the Petitioners; and I find that the Petitioners’ actions in this matter constitute a violation of Ark. Code Ann. § 12-12-503(12)(G) because the Petitioners allowed their children to be left alone overnight in inappropriate circumstances; i.e., the home of a convicted sexual offender. The Petitioners’ names shall remain on the Arkansas Child Maltreatment Central Registry based on the October 16, 2002 report. (Emphasis in original.)
A person who has been found to be an offender pursuant to the Child Maltreatment Act (“Act”), Ark. Code Ann. § 12-12-501 (Supp. 2003) et seq., is subject to having his name placed on the Child Maltreatment Central Registry (“Registry”). As correctly cited by the ALJ, the definition of “child maltreatment” under this Act includes “neglect” which, in turn, is defined as an act or omission of a parent that constitutes the “[fjailure to appropriately supervise the juvenile that results in the juvenile’s being left alone at an inappropriate age or in inappropriate circumstances that put the juvenile in danger.” Ark. Code Ann. §§ 12-12-503(6) & (12)(G). Given these authorities and the ALJ’s order, it is implicit that the ALJ found that the Bixlers placed their children in danger, in violation of § 12-12-503(12)(G), because they allowed the children to be left alone overnight in the home of a convicted sexual offender.
In essence, the majority holds that reasonable minds could not have concluded that the Bixler children were placed in danger, in violation of § 12-12-503(12)(G), because they were not sexually abused. The majority opinion cites to no authority requiring actual harm, nor explains why the Act would require actual harm in order to hold that the children were placed in danger, except to state that to hold otherwise would defeat the intent of the Act. However, the opposite is true: to hold as the majority does defeats the intent of the Act, which is consistent with the general intent of our criminal and civil laws to protect juveniles from the risk of harm.
For example, under our criminal code, a parent is criminally liable if he knows that his minor child is in illegal possession of a firearm upon the premises of a school, but fails to report the possession, even if the child does not use the weapon. Ark. Code Ann. § 5-26-206 (Supp. 2003). Further, any person may be criminally liable for second-degree endangerment of a minor where the person knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of a minor. Ark. Code Ann. § 5-27-204 (Repl. 1997).
Moreover, pursuant to the civil statutes governing the termination of parental rights, which is a much harsher penalty than simply having one’s name placed on the Child Maltreatment Central Registry, a child may be considered to be dependent-neglected where there is only a substantial risk of harm due to neglect. Ark. Code Ann. § 9-27-303 (17)(A)(v) (Supp. 2003); Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)(a) (Supp. 2003). Notably, one definition of neglect, for termination purposes, is identical to the definition of neglect at issue in this case. Ark. Code Ann. § 9-27-303(35)(G).
Consistent with this general intent to protect juveniles from the risk of harm, and despite the majority’s holding, § 12-12-503(12)(G) does not require that a child suffer actual harm in order to be considered neglected under the Act. That § 12-12-503(12)(G) applies in the absence of physical harm is supported by the fact that § 12-12-503 contains two separate sections that apply where actual harm has occurred. Section 12-12-503(12)(A) defines neglect as the failure or refusal to prevent the abuse of the juvenile when the parent knows or has reasonable cause to know that the juvenile is or has been abused. Section 12-12-503(12)(C) defines neglect as the failure to take reasonable action to protect a juvenile from sexual abuse or neglect when the existence of the condition was known or should have been known. Thus, §12-12-503 clearly provides grounds for placing a parent’s name on the Registry in situations in which a child is placed at risk of harm, and where the harm has actually occurred. Accordingly, the majority’s opinion reversing the ALJ’s interpretation of § 12-12-503(12)(G) and requiring actual harm violates the clear intent to protect juveniles from the risk of harm.
Given these authorities, reasonable minds could have concluded, as the ALJ did, that the Bixlers neglected their children by either acting or failing to act in such a manner as to place their children in inappropriate circumstances that put the children in danger. The evidence regarding what the Bixlers knew about Bonds’s prior conviction is conflicting, but the ALJ made a specific finding, by which this court is bound, that Ms. Hayes, the DHS worker, was credible. Hayes, who interviewed the Bixlers, testified that the Bixlers admitted that they knew Bonds had been imprisoned due to his conviction for a sexual offense. Mrs. Bixler told Hayes that they had seen copies of Bonds’s court papers. Mr. Bixler told Hayes that Bonds informed them of his past at the time he married Mr. Bixler’s mother and that he (Mr. Bixler) was aware of one allegation of sexual molestation.
In contrast to Hayes’s testimony, the Bixlers testified that they had merely heard “rumors” about Bonds but did not know why he had been imprisoned; however, Mr. Bixler admitted that he heard rumors that Bonds’s offense involved “child sex abuse.” Yet, the Bixlers said that they were not concerned about leaving their children in Bonds’s exclusive care because the children were so close to home; because they required the children to visit in pairs; and because the Bixlers never saw Bonds act inappropriately around the children.
The evidence that the Bixlers were aware of, but ignored, Bonds’s criminal sexual history is disturbing, especially when one considers that the recidivism rate of sexual offenders is generally acknowledged to be high. Even before our General Assembly required sexual offenders to register for this very reason, the Arkansas Supreme Court recognized the inherent proclivity of persons who sexually abuse minors to repeat such acts with multiple victims. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). Given the recognized risk that a sexual offender is likely to re-offend, it seems axiomatic that placing a child into a home, unsupervised, with a person who has previously been convicted of sexually abusing a minor, places that child in inappropriate circumstances that puts the child in danger.
As a practical matter, it makes no difference whether the Bixlers merely heard rumors or actually knew about Bonds’s criminal history. If the Bixlers, in fact, knew about Bonds’s history, then they should not have placed their children in his care. However, even if the Bixlers only heard rumors that Bonds had committed a sexual offense, they should have determined whether the rumors were true before allowing their children to stay, unsupervised, in his presence. The majority concludes that the Bixlers permitted their children to visit Mr. Bonds only “in pairs,” even though the ALJ made no finding in this regard. Even if this conclusion is accurate, the majority’s reliance on it is misplaced, because even if the children always visited Mr. Bonds in pairs, that did not lessen the danger to which they were exposed. Sexual abuse often happens when others are present in the same house; thus, the point is not whether the children stayed alone or in pairs. The point, as stated by the ALJ, is that “it was not in the children’s best interests to remain overnight, without other adult supervision, in the home of a convicted sexual offender.” (Emphasis added.)
The majority ignores that the very fact that the Bixlers were concerned enough to require the children to visit Bonds in pairs demonstrates their awareness that they were placing their children at risk by allowing the unsupervised visits. This is alarmingly demonstrated by Hayes’s testimony that the Bixlers told the children that if Mr. Bonds touched them inappropriately, they needed to tell someone. Given these facts, the majority is hard-pressed to argue that the Bixlers did not place their children in inappropriate circumstances that put them in danger.
Finally, we have recognized that in order to defeat a petition to terminate parental rights it is not enough for a parent to refrain from personally harming the child; instead, it is the parent’s duty to take affirmative steps to protect the child from harm. Wright v. Arkansas Dept. of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003)(emphasis added). By the same reasoning, in the face of actual knowledge or even mere rumors that the person to whom they had entrusted their children’s welfare was a sexual offender, the parents here should have taken affirmative actions to protect their children from harm. Accordingly, I would affirm the ALJ’s decision because the Bixlers’ neglect of their children justifiably resulted in their names being placed on the Registry.