Shannon Bizzell v. Kimberly Bizzell

ca03-557

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

SHANNON BIZZELL

APPELLANT

V.

KIMBERLY BIZZELL

APPELLEE

CA 03-557

March 24, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

TWELFTH DIVISION [DV-00-6081]

HONORABLE ALICE S. GRAY,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

This is a custody case. Appellant, Shannon Bizzell, is the father, and appellee, Kimberly Bizzell, is the mother. The child's name is Austin, and he was born in March 2000. The parties were married in July 1999 and separated in November 2000. The divorce decree was entered January 2, 2003. The trial court awarded custody of Austin to the mother, and the father appeals that decision, raising four points on appeal: (1) the trial court erred in appointing an attorney ad litem after the appellee had rested her case, and the attorney ad litem did not follow the standards mandated by Supreme Court Administrative Order Number 15, section 5; (2) the trial court exhibited bias in favor of the pro se appellee; (3) the trial court erred in failing to take into consideration the appellee's prescription-drug use in making the award of custody; (4) the trial court's award of custody to the appellee was contrary to the preponderance of the evidence. We affirm.

There were several preliminary hearings in this case regarding jurisdiction and temporary custody of the child. Those hearings, however, are not pertinent to the issues raised

on appeal. In addition, the hearings concerning the issue of custody were spread out over time, with the first two hearings occurring on January 14 and January 16, 2002. The third and final hearing was held on August 16, 2002. Appellee represented herself in these three hearings, and the attorney ad litem was appointed after the first two hearings. Accordingly, the testimony in this case was a bit redundant. The following recitation of testimony is from those custody hearings.

Cynthia Alexander, a nurse with Gentiva Health Services, testified that she began checking on Austin when he first came home from the hospital because he experienced a birth injury. She said that the house was always clean and neat, as was Austin. She stated that appellee was willing to learn and did a good job taking care of Austin. She said that her visits lasted from forty-five minutes to two hours, and that she was aware appellee had two positive drug tests.

Appellant testified that he now lives in New Mexico and that he moved there in connection with his job and to be closer to his family. He explained that he returned to Arkansas to take Austin to New Mexico at appellee's request because of her probation problems. He said that he filed for legal separation in order to simplify the paperwork for Medicaid benefits for Austin. He explained that he was seeking custody because he did not think that it was in Austin's best interests to be with appellee due to the amount of medication that she was "abusing."

Upon direct examination by the trial judge, appellee testified that she got in trouble for drugs six years ago and was placed on probation. She stated that in October she was on medication for a sinus infection and that it caused her to test positive twice for methamphetamine. She said that her probation officer told her that if she did not get appellant to pick up the baby, he would be taken to DHS. She explained that she called appellant and asked him to come pick up the baby, who was six months old at the time. Appellee stated thatshe takes Synthroid, Diazepam, a hormone patch, and Propoxyphene, which she said is a generic Darvocet for migraines. She stated that Austin was six months old when he went to New Mexico with appellant, and that she and appellant currently share time with Austin on a monthly basis. She stated that she is on social-security disability because she is manic depressive and that she also takes Celexa and Wellbutrin.

Winnie Peeples, appellee's mother, testified that she stayed with appellee a lot of the time when the baby was there and that appellee tended to all of the baby's needs. She said that she just supervised appellee, but that appellee really did not need supervision. Ms. Peeples said that she has asthma and is a diabetic. She recounted the number of times that she signed time slips and progress notes regarding Austin when the nurse pediatrician visited, but stated that appellee was the primary caretaker and that she simply signed because appellee was busy.

Appellee testified that she rents the property in which she currently lives from her brother, John Peeples; that her rent is $300; that she owes her brother $500; that her utilities run about $90 in the winter and $125 in the summer; and that she has a telephone. She states that she receives $250 a month in food stamps; that she spends about $40 a month on prescription medication; and that her car is currently broken, but that she has somebody to take her and the baby to the doctor. She stated that her phone "has been shut off since back in October"; that she receives about $539 a month in social-security disability and $200 a month in child support from the father of her other child, Ashley. She acknowledged that when Austin was born and in critical condition, appellant never left his side.

Appellee "introduced" her affidavit of financial means upon direct examination by the trial judge. On cross-examination, appellee testified that she was supposed to be paying Arch Street Pharmacy $50 a month. She explained that the affidavit shows her monthly expenses as $899 and her total monthly income as $718. She said that her family helps her out and that she receives $150 - $200 a month from her brother. She stated that when appellant first left for New Mexico at the first of October 2000, he was to return to get her, Austin, and Ashley in December; that she had to get permission to take Ashley out of state; and that she also had to get permission from the court before leaving because of her probationary status. Near the end of October, however, she tested positive for methamphetamine and called appellant to come and pick up the child. She stated that she did not file for divorce until appellant filed for legal separation. She acknowledged testifying that she stopped taking Valium "when, in fact, last year alone, I took over 1,000 Valium because I forgot when I stopped taking it." She then corrected that figure to 893 Valium pills in 2001. She stated that she took Codeine #3 for migraines when she was pregnant. She stated that in January 2001, she purchased over 400 different types of pain medication and anti-depressants, but that she did not take that much. Appellee acknowledged that she knew she was positive for hepatitis C before Austin was born. The trial court conducted redirect examination of appellee, and appellee stated that the only medication she is on is Celexa, Synthroid for a thyroid condition, Dicyclomine for a spastic colon, Wellbutrin for depression, and Propoxyphene as needed for migraines. She stated that Austin's current health requirements are that he needs to have the feeding tube removed, that he still has blood-pressure problems, that he needs caps on this teeth because the medication has ruined his teeth, and that he is continuing his speech therapy.

Mark McMurry stated that he is the pharmacist and owner of Arch Street Pharmacy. He testified about the medication prescriptions that were filled for appellee from 1999 to present, using a pharmacy computer printout.

Cynthia Alexander, who had testified previously, was cross-examined by appellant's attorney at this stage of the hearings. She stated that she had brought her record that she keeps on patients, but not the official file that Gentiva keeps. She said that she could not explain why records between May 10 and May 30 were missing from the Gentiva file. She stated that every visit she made was based on a doctor's directive, except for the day that she babysat for Austin so that appellee could take her daughter to Magic Springs for an outing. She acknowledged that she became a personal friend to appellee and that appellee confided a lot of information to her about her marriage and about appellant. She also acknowledged that she was aware that appellee had asked appellant to drive from New Mexico to pick up Austin because appellee was afraid she was going to jail.

Dr. Frazier Kennedy, a board-certified pediatrician, testified that he was familiar with Austin, and that he had been Austin's treating pediatrician from the time Austin was seven weeks of age, except for the one-year period that Austin was in New Mexico with appellant. He explained that Austin had meconium aspiration at delivery and other complications that required life-support systems and subsequent procedures. Dr. Kennedy stated that there was no indication that Austin had received inadequate care in New Mexico while living with appellant. He said that he saw Austin about a month ago and that he was doing well. He said that Austin's hypertension was under control, but that it requires medication and monitoring. He said that Austin receives periodic evaluations by speech therapists, occupational therapists, and physical therapists. He concluded that he could not find fault with either parent regarding Austin's care.

Appellant, who had testified previously, explained that he lives in New Mexico in a three-bedroom, two-bath home. He stated that it is the same house as that which was visited by a New Mexico CASA worker, who submitted a favorable report to the trial court in this matter. He stated that he does not have to travel a lot with his job. He said that about two months after he and appellee were married, he started to suspect that she was abusing Valium and painkillers. Appellant acknowledged that he had to travel six to eight weeks at a time while appellee was pregnant with Austin. He stated, however, that he stayed in Little Rock for approximately three weeks after Austin was born and then returned to work because they were running out of money. He said that he did not learn of appellee's criminal record until after they were married. He explained again why he went to New Mexico and why he returned to get Austin. He stated that his mother is a pediatric nurse; that he stayed with his parents for the first two and one-half months so that his mother could supervise his care of Austin; and that when he felt comfortable, he and Austin moved to a rental house. Appellant explained how he tried to assist appellee in traveling to New Mexico to see Austin, sending her tickets for travel, and then facilitating transportation for exchanging Austin between the two locations for visitation. He stated that Austin is a healthy twenty-nine-month-old child; that he is no longer a special-needs child; and that he believes he can provide a better home for Austin. He stated that he is afraid Austin might get into appellee's medication; that she has problems with the use and abuse of drugs; that she does not have a way to support the child, other than child support; and that she has no independent means of transportation.

The attorney ad litem, who had entered the case by this time, also questioned appellant. Appellant stated that he is purchasing the house he is living in from his brother; that his parents live next door; that he has a GED; that he has a babysitter that is qualified for special-needs children; that she cares for Austin from six to nine hours a day; that he pays her $300 a week; that he is not dating anyone; and that he does not have insurance through his employment.

Over appellant's objection, the trial judge allowed the ad litem to conduct a direct examination of appellee, explaining that she always allows the plaintiff to present his or her case, the opposing party to present his or hers, and then she moves to the ad litem's presentation of evidence. Appellee testified that she had met with the ad litem in her office and that she had Austin with her during the meeting. She stated that she is not working outside of the home and that she has not considered relocating closer to New Mexico because her daughter's father lives in Little Rock. She explained that she has registered to get her GED and that the highest level of school she has completed is the seventh grade. She testified that she has had depression since she was young; that she takes an antidepressant; and that she has a track record of not working outside the home because she had a car wreck in 1993 that "messed up her nerves." She said that she believes she should have custody of Austin because she would be able to be home with him and she knows everything that he needs.

On cross-examination by appellant's attorney, appellee testified that the ad litem did not come to her house to conduct a visual inspection nor did she send anyone and that the ad litem did not come to the house to see her or her daughter's interaction with Austin. She acknowledged that she was aware that the ad litem petitioned the court to conduct those visits at appellant's house. She also acknowledged that it was her understanding that both she and appellant "would get checked out." She stated that she filed orders of protection against her daughter's father in August 1999 and November 1999; that she was held in willful contempt for denying that father visitation; that her daughter's grades were language - C, science - D, social studies - D+, spelling - D+; and that her daughter missed over twenty days of school that year.

Upon questioning by the court, appellee stated that she takes Valium because she "shakes real bad constantly" and "it helps her concentrate and write." She stated that it will not take her long to get her GED and go to work.

For his first point of appeal, appellant contends that the trial court erred in appointing an attorney ad litem after the appellee had rested her case and that the attorney ad litem did not follow the standards mandated by Supreme Court Administrative Order Number 15, section 5. In making this argument, appellant relies upon Arkansas Code Annotated section9-13-101(d)(2) (Supp. 2003) and Supreme Court Administrative Order Number 15, section 5. He cites no cases in support of his position.

Section 9-13-101(d)(2) provides:

(2) When a circuit judge determines that the appointment of an attorney ad litem would facilitate a case in which custody is an issue and further protect the rights of the child, the circuit judge may appoint a private attorney to represent the child.

Subsection (d)(3) provides in pertinent part that the "Supreme Court, with the advice of the circuit judges, shall adopt standards of practice and qualifications for service for attorneys who seek to be appointed to provide legal representation for children in custody cases." Supreme Court Administrative Order Number 15, section 5 sets forth the standards of practice for attorneys ad litem in domestic relations cases and guardianship cases when custody is an issue:

Section 5. Standards of practice for attorneys ad litem in domestic relations cases and guardianship cases when custody is an issue.

a. An attorney ad litem shall conduct an independent investigation consisting of review of all relevant documents and records. The ad litem shall interview the child, parents, and others having relevant knowledge to assist in representation. Continuing investigation and regular contact with the child during the pendency of the action are mandatory. Upon entry of a final order, the attorney ad litem's obligation to represent the minor child shall end, unless directed otherwise by the court.

b. An attorney ad litem shall determine the best interest of a child by considering such custody criteria as:

(1) Moral fitness factors: integrity, character, compassion, sobriety, religious training and practice, a newly acquired partner regarding the preceding elements;

(2) Stability factors: emotional stability, work stability, financial stability, residence and school stability, health, partner stability;

(3) Love and affection factors: attention given, discipline, attitude toward education, social attitude, attitude toward access of the other party to the child, and attitude toward cooperation with the other party regarding the child's needs;

(4) Other relevant information regarding the child such as stated preference, age, sex, health, testing and evaluation, child care arrangements; and regarding the home such as its location, size, and family composition.

c. An attorney ad litem shall appear at all hearings to represent the best interest of the child. All relevant facts should be presented to the court and if the child's wishes differ from the ad litem's determination of the child's best interest, the ad litem shall communicate the child's wishes to the court, as well as the recommendations of the ad litem.

d. An attorney ad litem shall file appropriate pleadings on behalf of the child, call witnesses, participate fully in examination of witnesses, present relevant evidence, and advocate for timely hearings.

e. An attorney ad litem shall explain to the child the court proceedings and the role of the ad litem in terms that the child can understand.

f. An attorney ad litem shall make recommendations to the court for specific and appropriate services for the child and the child's family. All recommendations shall likewise be communicated to the attorneys for the parties, or if a party is pro se, then to the party.

g. An attorney ad litem shall not be prevented by any privilege, including the lawyer-client privilege, from sharing with the court all information relevant to the best interest of the child.

h. An attorney shall not accept appointment to any case for which he or she cannot devote the requisite amount of time to comply with these standards of practice and the Model Rules of Professional Conduct.

Neither section 5 of Administrative Order number 15, nor section 9-13-101 sets a time limit for the appointment of an attorney ad litem, and appellant has cited no cases that address the issue. Moreover, he does not demonstrate, and we cannot find, any prejudice that he suffered as a result of the late appointment. In fact, we are not able to find in the abstract or addendum where the attorney ad litem actually made a recommendation to the court concerning custody.

While it is true that section 5 of Administrative Order number 15 provides in part that "continuing investigation and regular contact with the child during the pendency of the action are mandatory," and that "an attorney ad litem shall appear at all hearings to represent the best interest of the child" (emphasis added), that language alone, without any showing of prejudice, and without any citation of supporting legal authority, does not convince us that reversal of this case is required on that basis.

For his second point of appeal, appellant contends that the trial court was biased in favor of the appellee and against him because he took the child to New Mexico and thereby kept the child away from appellee for an extended period of time. In making this argument, appellant recaps several instances from the proceedings before the trial court and asserts that they demonstrate bias. However, appellant never made the bias argument to the trial court. An argument regarding judicial bias is not preserved for appellate review where there has been neither objection to the allegedly biased conduct below nor a motion for the trial judge to recuse. Southern Farm Bureau Cas. Ins. Co. v. Daggett, ____ Ark. ____, 118 S.W.3d 525 (2003).

For his third point of appeal, appellant contends that the trial court erred in failing to take into consideration appellee's prescription drug use. This point can best be discussed in conjunction with appellant's fourth and final point of appeal, in which he contends that the trial court's award of custody to the appellee was clearly erroneous.

In child custody cases, we review the evidence de novo, but we will not reverse the findings of the trial court unless it is shown that they are clearly contrary to the preponderance of the evidence. Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003); 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. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Id. A finding is clearly against the preponderance of the evidence, 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. Mason, supra.

Here, the question is whether we are left with a definite and firm conviction that a mistake has been made in this case. We are not so convinced. While the evidence does support appellant's position that appellee has had a history of heavy prescription-drug use, we cannot say that there was irrefutable evidence to show that she is currently abusing her use of them. Her probation ended March 10, 2001. Dr. Kennedy could find no fault with either parent's care of the child. While appellant seems more stable, is working, and is more financially secure, appellee has more time for the child. While we might have decided the custody issue differently below, under our standard of review we find no clear error in the trial court's decision.

Affirmed.

Crabtree and Baker, JJ., agree.