Mary Cloird v. Josephine Young, Arkansas Department of Human Services, and Minor Child

2021 Ark. App. 271, 625 S.W.3d 739

• Court: Court of Appeals of Arkansas
• Decided: May 26, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 271

Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION III No. CV-20-347 2023.06.27 15:30:32 -05'00' 2023.001.20174

Opinion Delivered May 26, 2021

MARY CLOIRD APPELLANT APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT V. [NO. 35JV-19-287]

JOSEPHINE YOUNG, ARKANSAS HONORABLE EARNEST E. DEPARTMENT OF HUMAN BROWN, JR., JUDGE SERVICES, AND MINOR CHILD APPELLEES AFFIRMED

MIKE MURPHY, Judge

Mary Cloird appeals the Jefferson County order awarding permanent custody of her

then two-year-old grandson, JD, to the appellee, Josephine Young. Mary is JD’s paternal

grandmother; Josephine is JD’s maternal grandmother. On appeal, Mary argues that placing

JD with Josephine instead of with her was not in JD’s best interest. We affirm.

The Arkansas Department of Human Services (DHS) became involved with this

family when it removed JD from the custody of his father, Jeremy Scott. Jeremy had been

drinking and driving and crashed into a tree, killing JD’s mother, Pamela Suggs. JD was

unrestrained in his mother’s lap at the time of the crash. Jeremy was later charged with

second degree murder, endangering the welfare of a minor, and domestic battery. Both

Josephine and Mary were involved with the case from the beginning, and both offered their

homes as available custodial placements. At the probable-cause hearing held on September 12, 2019, the circuit court placed JD in Josephine’s temporary custody. Jeremy was not

permitted to have contact with JD pursuant to a no-contact order in his criminal case.

On October 29, 2019, Josephine filed an amended petition seeking permanent

custody of JD. In it, she alleged that she had spent a significant amount of time in the home

with JD, she had participated significantly in his care and supervision, and there was a “strong

bond” between them. Two days later, Mary filed a motion to intervene and a motion for a

grant of permanent custody, asserting that there was also a strong bond between her and JD.

A CASA report was filed three days later. It provided that Josephine’s home was

appropriate and that JD is “in a home where he is loved and all of his needs are met.” CASA

did not recommend permanent placement at the time, however, citing the need to await

the completion of all home studies.

The court’s adjudication order, entered on November 5, found that JD was

dependent-neglected based on abuse, neglect, and parental unfitness and cited Jeremy’s

decision to drive under the influence while knowing that JD was not appropriately

restrained. DHS responded to Mary’s and Josephine’s petitions and argued that petitioning

for intervention and permanent custody was premature when reunification with a parent

was still a case goal. The court granted both Mary’s and Josephine’s petitions to intervene.

On December 17, Josephine petitioned for termination of reunification services to

the father. She asserted that Jeremy had been charged in criminal court with murder in the

second degree, child endangerment, and domestic battery in the second degree as a result

of his actions that led to Pamela Suggs’s death. Attached to this petition were home studies

for both Mary and Josephine. Both home studies are positive, and both recommend Mary

2 and Josephine as potential placement candidates. The court held a review hearing on January

16, 2020, wherein it closed the case and granted permanent custody of JD to Josephine. The

court stated:

Because the child cannot be placed with either parent, the court looks to the grandparents for potential placement. The court finds that the paternal grandparents (Ira and Mary Cloird) are not an appropriate placement. Until yesterday, the father was residing with the [Cloirds]. The Court finds that it was a bad decision for the Cloirds to allow the father to live with them while they were also seeking placement of their grandchild (particularly when said grandchild is the subject of a No Contact Order against the father). In addition, Ms. Cloird made inconsistent statements in her testimony today when compared with the statements she gave to the [case]worker immediately after the mother was killed. The court believes Ms. Cloird’s judgment was impaired and she would not provide for the best interests of [JD] due to her loyalties to her own son (Jeremy Scott). Further, the Court feels that if the [Cloirds] were granted permanent custody, the father would be right back in the [Cloird] home despite the no contact order that is in place. The [Cloird] home is not a suitable home for the minor child.

The court is satisfied that it is in the best interests of the minor child that the maternal grandmother, Josephine Young, be granted permanent custody. The minor child has been placed with Ms. Young and has been doing well. Ms. Young has ensured that all his health and safety needs have been met. In addition, Ms. Young’s home study was favorable. The Court finds that this is the most suitable and most appropriate placement for the minor child.

Mary has now appealed. On appeal, she asserts that sufficient evidence does not support the

finding that placing JD in Josephine’s permanent custody was in JD’s best interest.

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

permanency-planning hearings, is by a preponderance of the evidence. Ark. Code Ann. §

9-27-325(h)(2)(B) (Repl. 2020). On appeal, the standard of review is de novo, but we will

affirm the circuit court’s findings unless they are clearly against the preponderance of the

evidence. Mosier v. Ark. Dep’t of Hum. Servs., 95 Ark. App. 32, 233 S.W.3d 172 (2006). We

give due regard to the circuit court’s opportunity to judge the credibility of the witnesses,

3 and we will not reverse the circuit court’s ruling in a dependency-neglect case unless the

ruling was clearly erroneous. Ark. Dep’t of Hum. Servs. v. McDonald, 80 Ark. App. 104, 91

S.W.3d 536 (2002). A finding is clearly erroneous when, although there is evidence to

support it, the reviewing court is left with a definite and firm conviction that a mistake has

been made. Id.

The juvenile code specifically provides that placing a juvenile in the permanent

custody of a relative is a disposition option available to the court in dependency-neglect

cases when such a disposition is in the child’s best interest. Ark. Code. Ann. § 9-27-

334(a)(2)(A). Specific statutes within the Juvenile Code permit a circuit court to grant

permanent custody of a child at different dependency-neglect hearings. E.g., Ark. Code

Ann. §§ 9-27-315(a)(1)(B)(ii) (probable-cause hearing); 9-27-334(a)–(b) (disposition

options after adjudication).

Mary’s argument is, essentially, that given the competing requests for permanent

custody of JD, the court weighed the evidence and credibility of witnesses incorrectly and

should have picked Mary as the custodian. However, it is well settled that appellate courts

will not reweigh the evidence on appeal, and credibility determinations are left to the circuit

court. Blasingame v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 71, at 6, 542 S.W.3d 873,

877. A de novo review supports a placement with Josephine. At the final hearing there was

evidence that JD was doing well in Josephine’s care, there was a favorable home study in

place by CASA, and JD was in a loving home where all of his health and safety needs were

met. Mary asks us to reweigh the evidence, which we will not do.

Affirmed.

4 ABRAMSON and HIXSON, JJ., agree.

Robinson & Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.

McKissic & Associates, PLLC, by: Jackie B. Harris, for separate appellee Josephine

Young.

Andrew Firth, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.