Diona L. Sharum and Michael Sharum v. Jeremy Coleman

ca02-758

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

DIONA L. SHARUM AND

MICHAEL SHARUM,

APPELLANTS

V.

JEREMY COLEMAN

APPELLEE

CA02-758

MAY 7, 2003

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT,

NO. E2001-814 (I),

HON. FLOYD G. ROGERS, JUDGE

AFFIRMED

This is a child-custody case concerning a minor child, T.C., born in 1998 to appellant Diona Shrum. T.C. has a half-sibling, C.F., who was born in 1993 to Diona Sharum of a marriage to Jerry Foley.1 After her divorce from Foley, T.C. was fathered out of wedlock by Jeremy Coleman. Some time later, Mrs. Sharum married her present husband, appellant Michael Sharum. At that time, Mrs. Sharum had custody of both children. In November of 2001 Mr. Coleman filed a petition to establish paternity of T.C. and for visitation, later amending his petition to request custody of T.C. Following a hearing, the court found that it was in the best interest of T.C. that custody be awarded to Mr. Coleman.

On appeal the Sharums argue, as their only point, that the trial court was clearly

erroneous in finding that it was in T.C.'s best interest that his custody be awarded to Mr. Coleman, and that such finding was against the preponderance of the evidence. We do not agree, and we affirm the decision of the trial court.

Arkansas Code Annotated section 9-10-113(b) and (c)(2002) provides:

(b) A biological father, provided he has established paternity in a court of competent jurisdiction, may petition the chancery court, or other court of competent jurisdiction, wherein the child resides, for custody of the child.

(c) The court may award custody to the biological father upon a showing that:

(1) He is a fit parent to raise the child;

(2) He has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and

(3) It is in the best interest of the child to award custody to the biological father.

In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that there are no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as much weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). A finding is clearly against the preponderance of the evidence, when, although thereis evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).

The trial court heard extensive testimony from fourteen witnesses in the consolidated custody hearing below. As the appellants point out in their brief, testimony from each side alleged numerous failings and shortcomings of the other. The witnesses included police officers, schoolteachers, relatives, a DHS worker, an attorney ad litem, and a doctor. This court has closely reviewed the evidence in this case. It is obvious from this review that although there was testimony regarding numerous issues related to Mrs. Sharum, Mr. Coleman, and the child, the crux of the case and the lower court's ruling revolve around whether or not the children in Mrs. Sharum's custody were physically abused by Mr. Sharum. We see no need to set forth in detail the testimony of each and every witness in this opinion. Instead, we will summarize the testimony related to the alleged physical abuse and other relevant evidence. While we recognize that the custody of C.F. is not at issue in this appeal, the testimony regarding abuse allegedly inflicted upon both children was relevant to the trial court's determination and is, thus, relevant to our review.

Testimony Generally Regarding T.C.

Appellant, Mrs. Sharum, testified at trial with respect to T.C., stating that while Mr. Coleman's mother had been involved with T.C. since his birth, Mr. Coleman had not significantly shared in that involvement. She said that Mr. Coleman's mother had to make him spend time with T.C. She also said that when T.C. was ten months old she startedallowing him to stay overnight at Mrs. Coleman's house; Mrs. Sharum testified that when she would pick up T.C., Mrs. Coleman would be sitting there crying because Mr. Coleman would not stay home with T.C. Regarding T.C.'s injuries, which entailed bruising on his buttocks, Mrs. Sharum testified that she believed he received the injuries while playing at her own grandmother's house.

Mrs. Sharum's grandmother, Helen Riley, also testified regarding T.C.'s injury. She stated that she had been called by her daughter and asked about T.C.'s injury. She said at first she did not remember any injury, but that she later called Mrs. Sharum back and explained that T.C. had fallen while playing at her house. She further stated that during the ensuing investigation, T.C. had told a DHS worker that he had fallen while playing at her house.

Appellee Jeremy Coleman also testified. Mr. Coleman stated that he worked at a job that required him to be out of town three to four months out of the year; he further stated that he lived with his parents and that T.C. would also stay there if he were granted custody. Mr. Coleman admitted that his mother had spent more time with T.C. than he had. He stated that he had tried to talk to Mrs. Sharum after T.C. was first born but she would scream and "holler." He said he had been paying child support all along, but that he only started paying by check approximately six months after T.C. was born so he could prove he made the payments. Mr. Coleman stated that in the past he had gotten to see T.C. four or five times a week.

Mr. Coleman's mother, Tona Coleman, also testified. She stated that T.C. begancoming to her house to visit when he was about six weeks old and that her son, Mr. Coleman, was living in her house at this time; she further testified that she had tried to help Mrs. Sharum in the past by paying for her training and retreats required in her job with Mary Kay. Mrs. Coleman also stated that she had helped Mrs. Sharum look for a house so that she could have a more stable environment for the children, instead of moving constantly. Mrs. Coleman further stated that for a time she was keeping T.C. at her home three or four days a week; in addition, at this time, she would often keep C.F. as well. However, according to Mrs. Coleman, this started to change after Mrs. Sharum married Mr. Sharum.

Mrs. Coleman testified that she was allowed to keep T.C. less and less as time went by. She further testified that T.C. was afraid of Mr. Sharum; and that T.C. would "act out" toward his toys, carry a belt, and ask if someone wanted to be spanked. Mrs. Coleman also told the court that C.F. had come to her and said that Mr. Sharum had thrown T.C. up against the wall and held him by his throat; she stated that she had a talk with Mrs. Sharum about this incident and that Mrs. Sharum acknowledged that she knew about it. According to Mrs. Coleman, when she confronted Mr. Sharum about this incident, he said he did not throw T.C. up against the wall, but, instead, held him against the wall because he was crying for Mrs. Sharum and that she would not always be there for him. Mrs. Coleman said that Mr. Sharum further stated that he had been abused as a child and that she didn't know "what abuse was." T.C. was two years old at the time this incident was alleged to have taken place. Mrs. Coleman also testified that once when she took T.C. home, he was crying and shaking because he did not want to stay; she further testified that T.C. had been afraid of Mr. Sharumfrom nearly the very beginning.

Mrs. Coleman also testified regarding an incident that occurred in October of 2001; she stated that she had planned to have a birthday party for her husband and had received permission from Mrs. Sharum to have T.C. spend the weekend with them. On the evening that T.C. was supposed to come over, Mrs. Sharum called and said that T.C. had a rash and that they were going to take him to the hospital. Eventually, T.C. arrived at Mrs. Coleman's house; Mrs. Coleman testified that Mrs. Sharum thought T.C. had a rash and Mr. Sharum thought he had fallen. Mrs. Coleman testified that she also heard other potential explanations from other members of either Mr. or Mrs. Sharum's family. Mrs. Coleman took pictures of T.C. and his area of injury because she felt he had been spanked or that something had happened to him. There was a report of T.C.'s injury made to DHS. According to Mrs. Coleman, Mr. Sharum called her shortly after the DHS report had been made and informed her that someone at DHS owed him a favor and had called and told him about the report of T.C.'s injury; she further stated that both Mr. and Mrs. Sharum told her that until this was resolved she would not get to see T.C. There was also testimony by Mrs. Coleman that in the summer of 2001 Mr. Sharum told her that he was going to kill Jerry Foley and that he had other people on his hit list. Mrs. Coleman said that Mr. Sharum appeared to be serious when he made those statements.

Mr. Sharum also testified regarding T.C. He stated that from what he knew from others, T.C. had gotten his injuries from falling while he was at Mrs. Sharum's grandmother's house. He further denied ever threatening to kill anyone. Regarding theincident in which T.C. was allegedly thrown up against the wall, Mr. Sharum stated that he simply grabbed T.C. by the shoulders, turned him around, and told him to stop crying. Mr. Sharum also admitted that in the past T.C. had been scared of him. He further stated that he was sometimes overbearing and got a little louder than he should.

Testimony Generally Regarding C.F.

Mr. Sharum testified regarding a whipping he had given C.F. just before June 20, 2001. He stated that he had given C.F. two separate swats on that occasion, once with a belt and once with his hand. Mr. Sharum stated that he made an attempt to swat C.F. on her buttocks but that he hit her leg instead. Mr. Sharum also testified that he called C.F.'s father, Mr. Foley, and apologized for this incident because he knew that Mr. Foley would be upset about it; that Mr. Sharum eventually met with Mr. Foley and Mr. Foley wanted him to refrain from spanking C.F.; and that he (Sharum) told Mr. Foley that he did not know if he could agree not to spank C.F. because he had to be able to control his house. Mr. Sharum further testified that he didn't know how hard he hit C.F., but that he had seen the bruises on her leg and they were about two inches wide, about the width of a belt. Mr. Sharum admitted that leaving bruises on a child is overstepping corporal punishment and admitted that he had made a mistake. He also said that it would never happen again; however, he admitted that he would whip C.F. again if it was necessary and Mrs. Sharum approved.

Mrs. Sharum also testified regarding C.F. She stated that before she married Mr. Sharum, she and C.F.'s father, Mr. Foley, had gotten along well; however, their relationship had been bad since her marriage. She stated that she had witnessed the whipping that Mr.Sharum gave C.F. on June 17, 2001, and that she basically agreed with Mr. Sharum's testimony regarding the incident. She said that she did not see that Mr. Sharum had done anything wrong; and that while she did not agree that he should have caused the bruise, she also did not believe that he hit C.F. that hard intentionally. She said that she would never let anything happen to her children that would hurt them in any way.

Mr. Foley testified regarding C.F. as well. He stated that he lives in a three bedroom house and that C.F. had her own room when she stays with him. He was employed as an Emergency Room Technician at St. Edward Hospital. He testified that he had met with Mr. Sharum regarding the whipping C.F. had received with the belt. According to Mr. Foley, Mr. Sharum told him that C.F. was eight years old, that she needed to learn to mind, and that he felt she needed the discipline. Foley said he also discussed the incident with Mrs. Sharum, and that she said that she allowed Mr. Sharum to discipline the children; Mr. Foley said that Mrs. Sharum told him that C.F. needed the spanking because she was crying. Mr. Foley also related a prior incident in which C.F. had come to his house with small bruises on her buttocks; according to Foley, C.F. said that she had gotten the bruises from a whipping given to her by Mr. Sharum.

Testimony Generally Regarding Both T.C. and C.F.

Dr. Jim Herndon, an emergency room physician, testified regarding the injuries to both children. He was asked to examine photographs taken of T.C.'s injuries. He stated that T.C.'s injuries, two different lesions, looked as if they had been caused by a linear object that was curved on the end, possibly a belt. He further testified that he considered this to bephysical abuse and that if he saw these injuries in the emergency room he would be obligated to report it to Child Protective Services for further investigation. Under cross examination, Dr. Herndon admitted that he couldn't really draw a conclusion as to what caused the injuries in the photos.

Dr. Herndon also testified that he examined C.F. on or about June 20, 2001. He stated that she had two bruises on her leg: one of which was a six-centimeter elliptical bruise on her anterior thigh with some hematoma formation, which means that a bruise was bleeding into the tissue; the other bruise was a six to seven centimeter elliptical bruise on the posterior aspect of her left thigh. Dr. Herndon testified that the bruises were in separate locations, one on the front and one on the back; he further stated that the one on the front was more severe. Dr. Herndon testified that more bleeding was required for a hematoma to occur than was required to form a bruise. Dr. Herndon stated that C.F. told him that her step-dad had caused her injuries by spanking her with a belt. Dr. Herndon further testified that the injury was excessive disciplining in his view and had he not believed that the case had been referred by DHS, he would have reported it to the hotline. In his opinion, C.F. had been physically abused.

State Trooper Ted Grigson testified regarding both children. Trooper Grigson, at the time, was a criminal investigator assigned to the crimes-against-children division. He stated that he had been working as a criminal investigator in child-abuse situations for a little over five years of his career. Trooper Grigson also stated that he had received over five-hundred hours of training in this area; some of his training consisted of recognizing certain types ofinjuries. Trooper Grigson testified that he had conducted a limited investigation of the cases involving C.F. and T.C. During that limited investigation he received a few documents and interviewed only Mrs. Coleman; the documents included reports from DHS, the prosecutor's office, medical reports from the hospital, and some photographs taken of T.C. Trooper Grigson also stated that he had reviewed the medical report from Dr. Herndon regarding C.F. and had also reviewed photographs of C.F.'s injuries. Trooper Grigson's investigation did not go any further. Trooper Grigson stated that the reason he did not pursue the case was because of the determination by DHS that the allegations of abuse were unfounded. He stated that this made the case difficult to prosecute due to the standard of proof and that the prosecutor released him from the case, believing that a criminal charge could not be proven beyond a reasonable doubt, in light of the DHS reports. Nonetheless, Trooper Grigson testified that he did form an opinion based on the evidence, viewed in light of his training and knowledge, that both T.C. and C.F. had been physically abused and that it was likely to occur again. However, Trooper Grigson admitted that he would have liked to have had an opportunity to interview more witnesses in the case.

Sue Hamilton, a second grade teacher who had C.F. in her class, also testified. Ms. Hamilton is a close cousin of Mrs. Coleman. Ms. Hamilton testified as to attendance problems that C.F. had in the past and in regards to C.F. being sleepy because of not getting enough sleep at night. This testimony generally did not favor Mrs. Sharum. Regarding the alleged physical abuse, Ms. Hamilton testified that she had never seen any bruises or marks on C.F. However, Ms. Hamilton told the court that C.F. had come to her one day andwanted to talk about some problems at home. C.F. told Ms. Hamilton that she could not get any sleep the night before because T.C. had cried almost all night long after Mr. Sharum had whipped him so hard. From the conversation, Ms. Hamilton believed that T.C. had been forced to stay in a wet bed as well. Ms. Hamilton stated that C.F. was upset because she knew the whipping had really hurt T.C. Ms. Hamilton also stated that C.F. expressed fear for herself during this conversation. According to Ms. Hamilton, T.C. would have been almost two years old at this time.

On cross examination, Ms. Hamilton stated that although she reported this incident to her counselor at school, she did not report it to DHS. She also stated that C.F.'s grades had improved in her class, and that Mrs. Sharum had called and did seem to care and was concerned about C.F. Ms. Hamilton also testified that Mr. Coleman had been involved with T.C. in school.

Ruth Freeman, a DHS area supervisor, also testified regarding the allegations of abuse made to DHS. She testified by referring to the DHS reports because she did not personally investigate any of the allegations, other than as a reviewer of the investigations. Freeman said there were three different allegations made against Mr. Sharum in regards to T.C. and C.F. In the first allegation, made on June 20, 2001, an anonymous caller said that Mr. Sharum had whipped C.F. with a belt, causing bruises. A DHS caseworker had investigated this allegation and found it to be unfounded. The second allegation was made on October 21, 2001, and was in regards to the bruise on T.C.'s buttock. The same caseworker investigated this allegation; it was also deemed to be unfounded. There was a thirdallegation that was investigated by a caseworker from another county; this out-of-county caseworker was requested because of allegations that the previous DHS investigations had been biased. This third allegation of abuse was also deemed unfounded.

On cross-examination, Ms. Freeman admitted that during the first investigation no one had talked to Dr. Herndon; she said this was because they did not know that he had examined C.F. Ms. Freeman further admitted that the caseworker did not speak to C.F.'s father, Mr. Foley; and that apparently the caseworker never spoke with Mr. Sharum either. Ms. Freeman also admitted that the caseworker did not take any pictures of T.C. while investigating the second allegation. She stated that the caseworker did bring back pictures from the investigation, but that they were pictures given to the caseworker by someone. The caseworker asked Ms. Freeman to review these photos. Ms. Freeman said that she would have taken those pictures into consideration but that department guidelines require the face of the child to be in the picture; in the pictures she reviewed, no face could be seen. Ms. Freeman's testimony indicates that these photographs were considered, but not in the same light as if they had shown the child's face. With regard to the third allegation, Ms. Freeman stated that the caseworker who investigated it was from another jurisdiction and that it was also unfounded. Ms. Freeman also pointed out that this caseworker had written in her report that Mrs. Coleman was very upset and wanted to have custody of the children, no matter what she had to do to get it. Ms. Freeman also stated that during this third investigation, there was no effort to contact Dr. Herndon. Ms. Freeman testified that the third allegation had to do with mental abuse and that she did not see why the investigator would have neededto speak with Dr. Herndon regarding this allegation.

The Decision of the Court

There is no question that this case proved to be a difficult one for the trial court. In its findings, the court pointed out that there had been quite a bit of good done by both parties in this matter with respect to the children. Nonetheless, the court found that the discipline given by Mr. Sharum was excessive in light of the circumstances. Mr. Sharum himself admitted that he had made a mistake when he caused the bruise on C.F. with his belt. Also, Mr. Foley testified as to at least one other incident of bruising on C.F. that was believed to have been caused by Mr. Sharum.

Furthermore, there was other evidence regarding T.C. and the bruising on his buttocks that allegedly occurred due to an accident at the home of Mrs. Sharum's grandmother. In addition to this there was evidence that T.C. had cried all night due to a whipping given to him by Mr. Sharum. When consideration is given also to the testimony by Trooper Grigson and Dr. Herndon, both of whom believed these injuries to constitute excessive punishment, it is clear that the trial court had before it enough evidence to find that the children had received excessive punishment.

We should also note the court's disappointment with the investigations conducted by DHS. As to these investigations, the trial judge stated that they were a "travesty" and that DHS "fumbled the ball." In spite of the fact that DHS found the allegations of abuse to be unfounded, it is clear from the court's findings that the trial judge did not give much weight to DHS's investigations. While there were no specific findings as to the showing requiredby Ark. Code Ann. § 9-10-113, none were requested pursuant to Arkansas Rule of Civil Procedure 52(a). We indulge in the presumption that the trial court acted properly and made the findings necessary to support its judgment. Tillery v. Evans, 67 Ark. App. 43, 991 S.W.2d 644 (1999).

There was evidence that Mr. Coleman was a fit parent, that he had been providing care, supervision, protection, and financial support for the child, and that it was in the best interest of the child to award custody to him. There was testimony to the contrary regarding these three requirements as well. Giving due deference to the trial judge's superior position to evaluate the credibility of the witnesses and the evidence, we cannot say that the trial court's finding that custody should be awarded to Mr. Coleman was clearly erroneous or clearly against the preponderance of the evidence.

Affirmed.

Gladwin and Vaught, JJ., agree

1 The record of proceedings in the trial court indicates that an issue regarding the custody of C.F. was apparently heard simultaneously with the case involving the custody of T.C., resulting in an award of C.F. to Mr. Foley. However, the order awarding custody of C.F. to Foley is not before us in this appeal.