Metcalf v. Arkansas Department of Human Services

2015 Ark. App. 402, 466 S.W.3d 426, 2015 Ark. LEXIS 465, 2015 Ark. App. LEXIS 467
CourtCourt of Appeals of Arkansas
DecidedJune 17, 2015
DocketCV-14-1130
StatusPublished
Cited by4 cases

This text of 2015 Ark. App. 402 (Metcalf v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Metcalf v. Arkansas Department of Human Services, 2015 Ark. App. 402, 466 S.W.3d 426, 2015 Ark. LEXIS 465, 2015 Ark. App. LEXIS 467 (Ark. Ct. App. 2015).

Opinion

PHILLIP T. WHITEAKER, Judge

| Appellant Angela Metcalf appeals from a decision of the Pulaski County Circuit Court awarding custody of Metcalfs daughter, A.P., to A.P.’s father, Jonathan Phillips, and closing the dependency-neglect case. She argues that the evidence was insufficient to support the court’s order granting permanent custody to Phillips. We find no error and affirm.

I. Standard of Review

In 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. Thomas v. Ark. Dep’t of Human Servs., 2012 Ark. App. 309, 419 S.W.3d 734. 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. Stewart v. Ark. Dep’ of Human Servs., 2011 Ark. App. 577, 2011 WL 4477858. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Thomas, supra. 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 of his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id. With these standards in mind, we now turn to the evidence before the court and consider Metcalf s arguments challenging the sufficiency of this evidence.

II. The Evidence

The case began when the Arkansas Department of Human Services (DHS) filed a petition for ex parte emergency custody and dependency-neglect following Met-calfs arrest on drug charges. At the time of her arrest, Metcalf and A.P. were passengers in a vehicle that was being driven by a registered sex offender; methamphetamine and drug paraphernalia were also found in the car. When a DHS caseworker made contact with Metcalf at the Sherwood Police Department, Metcalf tested positive for methamphetamine. She was charged with endangering the welfare of a minor, possession of methamphetamine with purpose to deliver, and possession of drug paraphernalia. Because A.P. was left without a legal caretaker following Metcalfs arrest, DHS took custody of A.P. on the basis of neglect and parental unfitness. Based upon this evidence, the court found probable cause and later adjudicated A.P. dependent-neglected, specifically finding that she was at substantial risk of serious harm as a result of neglect and parental unfitness. Despite this finding, the court set |sthe goal of the case to be reunification and set the case for subsequent evidentiary review hearings.

At the review hearings, the court received evidence pertaining to Jonathan Phillips, who had submitted to DNA testing. Based upon the results, the court determined Phillips to be the biological father of A.P. 1 Following that determination, the court placed A.P. in Phillips’s temporary legal custody based upon a recommendation from DHS that Phillips was able to provide “stability and structure” for A.P. 2 Additional evidence showed that A.P. had started cheerleading practice and that Phillips had obtained a tutor for A.P. so she could improve her math grades.

In addition to the evidence concerning Phillips’s stability, the court received evidence concerning Metcalf s instability with respect to her housing, employment, criminal charges, visitations, compliance with the case plan, and her ability to meet the needs of A.P.

In the area of housing, DHS noted that Metcalf had moved five times, had six different addresses, and had not notified DHS in a timely manner when she did move. Metcalf admitted that she had lived at several different addresses during the short pendency of the case. She described how she left her husband’s home because he was abusive; she moved to the Ward Women’s Shelter and then to Our House, where there was a “good program” and access to a bus route. After leaving Our House, she moved to Jacksonville. |4After her husband was incarcerated, she moved her trailer to Prothro Junction, but it was broken into there and she did not feel safe, so she moved to her current location in Benton. Metcalf explained that she had moved so many times because she was trying to find a better environment for herself and her daughter.

With respect to her employment, Met-calf admitted that she was unable to find a job while she lived in Jacksonville because she did not have access to transportation. By the date of the final hearing, however, Metcalf said that she had been working at Harps Grocery for about four weeks. She stated that she had been terminated from her previous job at a hotel over allegations that she was “confrontational” and had “fraternized with a client,” although she claimed this was not true. Metcalf said that she could provide stability for A.P. because she was “pretty set” at her job and did not plan on moving again.

With regard to her criminal charges, Metcalf acknowledged that they were still pending, but she noted that she had entered a not-guilty plea and that she was scheduled for trial in December.

DHS expressed concerns regarding the area of visitation. DHS explained that Metcalf had missed six of her thirty-six visitations after the review hearing in April: of those, one was because Metcalf was sick; and two were because A.P. was out of town, and Metcalf could not reschedule the visits because she was working. DHS further reported “numerous conversations” with Metcalf about her visits. The Department was concerned with “the appropriateness of the conversation that she’s been having with A.P. Ms. Met-calf does speak to A.P. about adult things, not age-appropriate topics.” Caseworker Bethany Taylor noted [fithat Metcalf had been compliant, but not consistent, with her visitations. Metcalf said that she had missed some of her visits with A.P., but she was working one of those days, was sick another, and miscommunicated with her DHS caseworker on another. She asserted that the supervised visitations with Phillips’s parents had not gone well because his parents were rude to her and “made comments that were against” her.

With regard to Metcalfs compliance with the case plan, DHS reported that communication with Metcalf was “very poor,” in that she did not always answer her phone when DHS called, and when she did speak to the Department, “we have known to catch her in a lot of untruths.” Although Metcalf had provided ten clean drug screens since the case began, DHS described Metcalf s compliance with the case plan as having “more than partially complied, but not substantially complied with the court orders.” In addition to her instability in housing and employment, DHS reported non-compliance with court-ordered therapy. Metcalf admitted that she missed her court-ordered therapy for three weeks because she was looking for a job in White Hall to be closer to A.P., but she asserted that she notified her caseworker and therapist of her plans beforehand.

Finally, with regards to Metcalfs ability to meet A.P.’s needs, the court heard evidence concerning Metcalfs lack of transportation and her inability to provide for A.P. educationally.

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Bluebook (online)
2015 Ark. App. 402, 466 S.W.3d 426, 2015 Ark. LEXIS 465, 2015 Ark. App. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metcalf-v-arkansas-department-of-human-services-arkctapp-2015.