Contreras v. Ark. Dep't of Human Servs.

2013 Ark. App. 519

• Court: Court of Appeals of Arkansas
• Decided: September 18, 2013
• Docket: CV-13-385
• Status: Published

Opinion

Susan Williams Cite as 2013 Ark. App. 519 2019.01. ARKANSAS COURT OF APPEALS 02 15:16:44 DIVISION III No. CV-13-385 -06'00' Opinion Delivered September 18, 2013

MONICA CONTRERAS APPEAL FROM THE WASHINGTON APPELLANT COUNTY CIRCUIT COURT [NO. JV-12-190] V. HONORABLE STACEY ARKANSAS DEPARTMENT OF ZIMMERMAN, JUDGE HUMAN SERVICES, CHRISTINE WILLIAMS, AND MINOR CHILD APPELLEES AFFIRMED

WAYMOND M. BROWN, Judge

Appellant appeals the circuit court’s grant of permanent custody of her son J.G., born

February 15, 2002, to his maternal grandmother, Christine Williams. On appeal, she argues

(1) that there was insufficient evidence that granting permanent custody to Christine Williams

was in the best interests of the child and (2) that the trial court erred in granting permanent

custody to Christine Williams and closing the case. We affirm.

The Department of Human Services (DHS) exercised a seventy-two hour hold on J.G.

on February 22, 2012, after appellant failed to pick up J.G. from school and was unable to be

contacted. DHS filed a petition for emergency custody and dependency-neglect on February

27, 2012, pursuant to Ark. Code Ann. § 9-27-303, and an order granting emergency custody

was filed on that same date. On March 1, 2012, a probable cause order was filed finding it Cite as 2013 Ark. App. 519

necessary for J.G. to remain with DHS until the adjudication hearing.1 Following its March

28, 2012 adjudication hearing, the court entered an adjudication and disposition order on

March 29, 2012, in which it adjudicated J.G. dependent-neglected due to neglect and parental

unfitness by appellant and temporarily placed J.G. with Christine. In that order, in addition

to the case plan, the court required appellant to (1) cooperate with DHS; (2) keep DHS

informed of where she was living; (3) participate in individual counseling; (4) refrain from use

of illegal drugs and alcohol; (5) submit to weekly, random drug testing; (6) obtain and

maintain stable housing; (7) demonstrate an ability to protect J.G. and keep him from harm;

and (8) maintain contact with her attorney.

Initially, appellant was not compliant with her case plan. She failed to (1) call DHS

weekly; (2) cooperate with DHS; (3) follow through on counseling; and (4) submit to weekly,

random drug screens. On April 13, 2012, she failed to appear at a show cause hearing which

resulted in issuance of a bench warrant for her arrest on the same date. After being picked up

on the arrest warrant on April 24, 2012, and appearing before the court on April 25, 2012,

the court sentenced appellant to thirty days in jail; however, appellant was released by an

order filed May 1, 2012, so that she could travel to Dallas, Texas, to appear before the county

criminal court there.2

By her August 30, 2012 review hearing, appellant had begun making progress in her

case. A review order was entered on September 5, 2012, in which the court noted that

1 A probable cause hearing was held on February 29, 2012. 2 Appellant pled guilty to two unrelated charges and was sentenced to a period of time in jail.

2 Cite as 2013 Ark. App. 519

appellant (1) completed her psychological evaluation; (2) failed to complete her drug and

alcohol assessment; (3) had five non-random drug screens; (4) completed parenting classes; (5)

had been incarcerated in Texas; (6) had not resolved her probation stemming from her Texas

charges; (7) would be moving into an apartment on August 31, 2012; and (8) was in a custody

case in Texas involving J.G.’s younger brother who lived with his paternal grandmother.

Visitation between J.G. and appellant was prohibited until the attorneys obtained a visitation

recommendation from J.G.’s counselor and the court issued an order detailing how contact

would be made. Appellant was required to pay thirty dollars per week in child support.3 The

court also required DHS to do an Interstate Compact on the Placement of Children home

study of appellant’s Texas home and noted that appellant passed her drug test taken that day.

The goal of the case was reunification.

The court filed an agreed order for supervised visitation on November 14, 2012,

awarding supervised visitation to appellant once per month, on two consecutive days for at

least one hour.4 A second agreed order for supervised visitation was filed on December 20,

2012, awarding supervised visitation to appellant for at least two hours.5

On January 28, 2013, Christine Williams, through counsel, moved to intervene in the

matter and petitioned for permanent custody of J.G., arguing that appellant was an unfit

parent who continually manifested indifference to J.G.’s safety, stability, and well-being. She

3 Child support payments were to begin on October 5, 2012. 4 Visitation was to begin on November 13 and 14, 2012, and was to be supervised by DHS or J.G.’s custodian. 5 There was no mention of consecutive days as previously agreed to. Visitation was to begin on December 21, 2012. 3 Cite as 2013 Ark. App. 519

alleged that appellant (1) abandoned J.G. at school in February 2012, (2) continually abused

and neglected J.G. throughout his lifetime, (3) had a criminal history, (4) had enrolled J.G.

in nine different schools in two states in the past three years, and (5) recently lost custody of

J.G.’s half brother in Texas.6

In DHS’s January 17, 2013 court report, DHS stated that appellant had been compliant

with her case and acknowledged that appellant had (1) obtained a residence in Arlington,

Texas, (2) been employed since June 2012, (3) completed counseling, (4) been cooperative

with the department and contacted her caseworker regularly, (5) completed parenting classes

in Texas in July 2012, and (6) completed her psychological evaluation on June 20, 2012.

Following a January 18, 2013 permanency planning hearing, while finding appellant in

compliance with the case plan and court orders, the court entered a February 15, 2012 order

granting permanent custody of J.G. to Ms. Williams and closing the case.

This timely appeal followed.

6 In support of her allegations that appellant has a criminal background, Ms. Williams submitted a copy of a sheet detailing a February 7, 2006 DWI charge in Washington County, a copy of a Madison County Court Docket for a March 5, 2006 DWI charge, and a printout from the Dallas County Criminal Background Search Service showing two undated charges attributed to appellant for DWI and public lewdness. In support of her allegation that J.G. had attended nine different schools in three years, Ms. Williams submitted a copy of a sheet listing the schools she alleged he attended and when. In support of her allegation that appellant lost custody, Ms. Williams submitted an Order from Tarrant County, Texas, signed October 9, 2012, showing that the court awarded joint custody to appellant and the father of J.G.’s half brother and awarded physical custody to the father with supervised visitation to appellant; no child support was awarded. 4 Cite as 2013 Ark. App. 519

The burden of proof in dependency-neglect proceedings, including reviews and

permanency-planning hearings, is preponderance of the evidence.7 In equity matters, such as

juvenile proceedings, the standard of review on appeal is de novo, although we do not reverse

unless the circuit court’s findings are clearly erroneous.8 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 committed.9 We give due

deference to the superior position of the circuit court to view and judge the credibility of the

witnesses.10 This deference is even greater in cases involving child custody, as a heavier burden

is placed on the judge to utilize to the fullest extent his or her powers of perception in

evaluating the witnesses, their testimony, and the best interest of the children.11 Moreover,

on de novo review the appellate court will only reverse on grounds properly argued by the

appellant.12

7 Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 522, at 4, 385 S.W.3d 367, 369–70 (citing Ark. Code Ann. § 9-27-325(h)(2)(B) (Repl.2009)). 8 Thomas v. Ark. Dep’t of Human Servs., 2012 Ark. App. 309, at 4, 419 S.W.3d 734, 736 citing Moiser v. Ark. Dep’t of Human Servs., 95 Ark. App. 32, 34–35, 233 S.W.3d 172, 174 (2006)). 9 Ark. Dep’t of Human Servs. v. Mitchell, 2012 Ark. App. 240, at 4-5, 423 S.W.3d 86, 89 (citing Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001)). 10 Thomas, supra (citing Chastain v. Chastain, 2012 Ark. App. 73, at 7, 388 S.W.3d 495).

11 Id., 2012 Ark. App. at 4-5 (citing Chastain, supra). 12 Anderson, 2011 Ark. App. at 4, 385 S.W.3d at 369-70 (citing Country Gentleman, Inc. v. Harkey, 263 Ark. 580, 569 S.W.2d 649 (1978)). 5 Cite as 2013 Ark. App. 519

Appellant’s first argument on appeal is that there was insufficient evidence that granting

permanent custody to Christine Williams, maternal grandmother to J.G., was in the best

interests of the child. In support of this argument, appellant argues that Ark. Code Ann. § 9-

27-338©) requires that a juvenile be returned to a parent before custody of the minor may

be given to another person. It is well settled that only the specific objections and requests

made at trial will be considered on appeal.13 Arguments not raised below, even constitutional

ones, are waived on appeal.14 Because this argument was not made below, it is not preserved

for appeal.

Even if appellant had made this argument below, she would not have prevailed. Her

interpretation of said statutory provision is incorrect. Arkansas Code Annotated § 9-27-338©)

permits the court, based on the facts of the case, to place the minor with a fit parent, return

the juvenile to the guardian or custodian from whom the juvenile was initially removed at the

permanency planning hearing, or authorize a plan to place custody of the juvenile with a

parent, guardian, or custodian under certain conditions.15 This list is in order of preference,

but it does not require that a child be placed in that order.16 The court was not required to

grant custody to appellant—whether on a trial basis, temporary or permanent basis—before

granting permanent custody to Ms. Williams.

Lucas v. Jones, 2012 Ark. 365, at 9, 423 S.W.3d 580, 585 (citing Johnson v. State, 303 13

Ark. 12, 792 S.W.2d 863 (1990); Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989)).

Id. (citing Tracy v. Dennie, 2012 Ark. 281, 411 S.W.3d 702). 14

15 Ark. Code Ann. § 9-27-338(c)(1)-(3) (Repl. 2009). 16 Ark. Code Ann. § 9-27-338(c). 6 Cite as 2013 Ark. App. 519

In further support of her insufficiency argument, appellant also argues that neither the

caseworker nor the judge provided evidence that appellant was an unfit parent or could not

obtain return of J.G. immediately or within three months. The substantive law on this topic

prefers a parent over a grandparent or other third person, unless the parent is proved to be

incompetent or unfit.17 While there is a preference in custody cases to award a child to its

biological parent, that preference is not absolute.18 Rather, of prime concern, and the

controlling factor, is the best interest of the child.19 The rights of parents are not proprietary

and are subject to their related duty to care for and protect the child; the law secures their

preferential rights only as long as they discharge their obligations.20 The court found appellant

to be unfit in its March 29, 2012 adjudication and disposition order. Appellant did not appeal

this order, nor did she make this fitness argument at the permanency planning hearing, so this

fitness argument is waived.

With regard to her argument that no evidence was provided showing that appellant

could not obtain return of J.G. immediately or within three months, “[t]he burden is on the

parent, guardian, or custodian to demonstrate genuine, sustainable investment in completing

the requirements of the case plan and following the orders of the court in order to authorize

17 Camp v. McNair, 93 Ark. App. 190, 198, 217 S.W.3d 155, 159 (2005) (citing Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003); Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988); Jones v. Strauser, 266 Ark. 441, 585 S.W.2d 931 (1979); Payne v. Jones, 242 Ark. 686, 415 S.W.2d 57 (1967); Riley v. Vest, 235 Ark. 192, 357 S.W.2d 497 (1962). 18 Id. (citing Dunham, supra). 19 Id. 20 Id. 7 Cite as 2013 Ark. App. 519

a plan to return home as the permanency goal.”21 It was appellant’s duty to provide such

evidence. She cannot remain silent on an issue for which she has the burden and then argue

that DHS failed to do her job. Furthermore, appellant did not make this argument below. It

is well settled that the failure to raise a challenge or obtain a ruling below is fatal to the

appellate court’s consideration of an issue on appeal.22

During its ruling at the permanency planning hearing, the court cited J.G.’s preference

to remain with Ms. Williams and his continued trust issues with appellant as its reasons for

granting permanent custody to Ms. Williams. The judge stated, “I can’t return you to your

mom today because I think just putting you there after you’ve had these worries that I think

are well-founded—and I think it’s supported by the record about your mom not being stable

for you.” It went on to state, “she hasn’t made enough progress with your trust and me

placing you with her to place you in her custody.” Furthermore, contrary to appellant’s

assertion that J.G.’s reasons for wanting to stay with Ms. Williams were all materialistic, the

record shows, in J. G.’s letter to the court, that he wished to remain in the custody of Ms.

Williams for a number of nonmaterialistic reasons. Those reasons included making good

grades in gifted and talented classes at school while handling the responsibilities he has with

21 Ark. Code Ann. § 9-27-338(c)(2)(A)(iii). 22 Anderson, 2011 Ark. App. at 8, 385 S.W.3d at 371 (citing Bryant v. Ark. Dep’t of Human Servs., 2011 Ark. App. 390, 383 S.W.3d 901). 8 Cite as 2013 Ark. App. 519

regard to his horse and dogs, feeling safe, having security, and that he loves his grandparents.23

We cannot say that the court’s ruling was clearly erroneous.

Affirmed.

HARRISON and WYNNE, JJ., agree.

Janet Lawrence, for appellant.

Tabitha B. McNulty, County Legal Operations, for appellant.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

23 In his letter to the court, J.G. wrote that he brushes, feeds, waters, washes and trains his horse. He also wrote: “I have the ability to get up in the morning and not have to worry about were [sic] I am going to go several times [sic] to not worry about is she (my mom) gonna leave me somewere [sic].” 9