Jerry Johnson v. Arkansas Department of Human Services

ca04-303

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA04-303

January 5, 2005

JERRY JOHNSON

APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

NO. JJN 1999-2696

v.

ARKANSAS DEPARTMENT OF HONORABLE WILEY A. BRANTON JR.

HUMAN SERVICES CIRCUIT JUDGE

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

This is a DHS case in which appellant Jerry Johnson's two minor children, J.P. and J.A. Williams,1 were placed in the permanent custody of their maternal grandmother, Vergie Williams. For his sole point on appeal, Johnson argues that the trial court erred in finding sufficient evidence to grant permanent custody of his minor children to a third party. We affirm.

This case initially began in December 1999, when DHS filed a petition for emergency custody of the Williams children due to environmental neglect. The children were adjudicated dependent-neglected and placed in DHS custody. In its February 29, 2000 order, the trial court found that the Williams children were dependent-neglected; that Jerry Johnson was not a credible witness; that Yolanda Williams, the children's mother, was not able to care for the children herself due to a mental illness; and that it was in the children's best interests that DHS's custody be continued. The trial court ordered that both parents undergo psychological evaluations, random drug and alcohol screenings, and attend parenting classes; that Jerry Johnson undergo anger management classes; and that J.P. Williams be assessed for counseling. At subsequent review hearings the trial court found that both parents were making efforts toward complying with its orders, and reunification was continued as the goal. DHS eventually filed a petition to terminate parental rights, which the trial court denied. It ordered a home study of Vergie Williams's home, and she was given temporary custody of J.A. Williams, born November 30, 1999. The trial court found, however, that it was not contrary to J.P.'s best interest to be returned to the custody of his parents. J.P., now age twelve, continued in his parents' custody until January 2003.

On January 10, 2003, DHS filed an ex parte petition for an emergency hearing, alleging that circumstances at the Johnson-Williams home had changed since the entry of the trial court's last order; that Jerry Johnson had failed to comply with the trial court's orders; that Yolanda Williams had moved out of the home due to verbal and physical abuse; and that a hearing was needed to reassess the case. The petition was granted, and a hearing was held on January 14, 2003.

At the January 14 review hearing, the trial court heard testimony from several witnesses. It was established that Jerry was J.P.'s primary caregiver; that there were no allegations of abuse to J.P.; and that DHS had not observed any safety problems as far as J.P. was concerned. J.P. was attending school regularly and was making good grades. However, Jerry had not been timely on making appointments for J.P.'s counseling sessions, and J.P. had missed several weeks of counseling sessions because Jerry failed to complete the necessary paperwork. Jerry had also failed to complete anger management courses and refused to attend relationship counseling. Although Jerry was J.P.'s primary caregiver, he rarely exercised visitation with J.A.. J.P.'s expressed preference was to live with his father.

Jerry and Yolanda also engaged in verbal and physical altercations in the home. Most of these altercations pertained to their oldest son, who had just been released from prison. Jerry did not want him to visit the home, and Yolanda would permit him to visit when Jerry was not home. Jerry accused Yolanda of engaging in sexual activity with her son and his friends. Although Jerry denied it, two witnesses, including Vergie Williams, testified that Jerry had stated that he had pictures of Yolanda engaging in oral sex with their oldest son. Yolanda also testified that Jerry had punched her and verbally abused her constantly. J.P. was present in the home during these altercations, but was asleep, according to Yolanda. The trial court found that Jerry had lied about the pictures in an effort to taint Yolanda's relationship with her children. He found that Jerry had lied in court about having told Vergie Williams that he had pictures of Yolanda having sex with their son, and that Jerry was not a credible witness. He also found that given Jerry's volatile personality, J.P. was being subjected to emotional abuse in the home.

The trial court also heard evidence that on one occasion, Jerry instructed J.P., a ten-year old, to ride his bike twenty-five blocks to his place of employment. Jerry testified that he would not have J.P. ride his bike to his place of employment everyday, but that in that instance he thought it was appropriate because it was an emergency. The trial judge found that, notwithstanding the parenting classes and services offered by DHS, Jerry was continuing to make decisions that were contrary to the safety and well-being of his minor child. He equated the bike-riding incident with child endangerment.

At the conclusion of the hearing, the trial court found that Jerry Johnson was an unfit parent because (1) he directed his ten-year old to ride his bike to join him at work, some twenty-five blocks away, (2) he is verbally and emotionally abusive in the home, and because this abuse occurs in front of the child, it has a potentially harmful and negative impact on the child, and (3) his lack of character, including his attempt to sabotage the relationship between Yolanda and her children by lying about the existence of a sexual relationship between Yolanda and her son. The trial judge placed J.P. back into foster care, and placed J.P. with Vergie Williams. Both parents were given visitation, and the trial court scheduled a follow-up permanency planning hearing for March 11, 2003.

At the March 11 reviewing hearing, the trial court took judicial notice of all of its previous orders and held that both parents were unfit. The trial court ordered that as of May 1, 2003, legal custody of J.P. and J.A. be placed with Vergie Williams, and ordered Jerry to pay child support for the children. The trial court then stated, "I'm going to set us to come back July the 29th at 9:30. I'll call that still another permanency planning hearing. It may be a final custody hearing."

At the July 29 hearing, the trial court placed J.P. and J.A. in the permanent custody of Vergie Williams, a licensed foster parent, and stated that the order of permanent custody shall remain in effect until entry of further orders of the trial court or a court of competent jurisdiction. He ordered Jerry to file an affidavit of financial means so that reasonable child support could be set, and ordered him to file a proposed visitation schedule. It is from this order that Jerry appeals.

DHS first argues that Jerry is procedurally barred from challenging the custody placement of his children because the trial court's March 2003 order was a final appealable order, and that Jerry was required to appeal from that order. DHS argues that the July 29, 2003 hearing merely maintained the status quo, and that an appeal from that order is not a timely appeal of the issues raised during the March 2003 hearing. We disagree.

Arkansas Rule of Civil Appellate Procedure 2 provides that in juvenile cases where out of home placement has been ordered, orders from disposition hearings are final appealable orders. Ark. Code Ann. § 9-27-303(21) defines "Disposition hearing" as a hearing held following an adjudication hearing to determine what action will be taken in delinquency, family in need of services, or dependency-neglect cases. Rule 2(c)(3) further provides: (3) In juvenile cases where an out-of-home placement has been ordered, orders resulting from the hearings set below are final appealable orders:

(A) adjudication and disposition hearings;

(B) review and permanency planning hearings if the court directs entry of a final judgment as to one or more of the issues or parties and upon express determination supported by factual findings that there is no just reason for delay of an appeal, in accordance with Ark. R. Civ. P. Rule 54(b); and

(C) termination of parental rights.

Foreman v. Ark. Dep't Human Servs., 78 Ark. App. 48, 50-51, 82 S.W.3d 176, 177 (2002) (emphasis added.) An order that does not contain a Rule 54(b) certification under subsection (c)(3)(B) is not a final appealable order. Foreman, supra.

In this case, the trial court clearly indicated that the March 2003 hearing was a permanency planning hearing. It further stated that the July 29, 2003 hearing was being scheduled as a permanency planning hearing, but that it might result in a final custody hearing. Because the March 2003 hearing was a permanency planning hearing, and the order did not contain a Rule 54(b) certification, it was not a final appealable order.

The burden of proof in dependency-neglect hearings is the preponderance of the evidence. Ark. Code Ann. § 9-27-325(b)(1)(B). On appeal from a trial court's ruling in a dependency-neglect case, we will not reverse the trial court's findings unless they are clearly erroneous, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. Ark. Dep't Human 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, after reviewing all of the evidence the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.

It is well-settled that a preference for the natural parent must prevail in third-party guardianship cases unless it is established that the natural parent is unfit. Moore v. Sipes, 85 Ark. App. 15, 146 S.W.3d 403 (2004). While there is a preference for the natural parent, that preference is not absolute. Dunham v. Doyle, 83 Ark. App. 36, 129 S.W.3d 304 (2003). Rather, of prime concern, and the controlling factor is the best interest of the child. Id. The rights of the 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. Id.

We cannot say that the trial court's decision is clearly erroneous. The trial court's decision was based primarily on three issues. The most compelling, according to the trial court, was Jerry's verbal and physical abuse of Yolanda, which occurred while J.P. was present in the home. The trial court also found that, due to Jerry's volatile personality and the physical abuse occurring in the home, J.P. was being subjected to emotional abuse. Parental unfitness is not necessarily predicated on a finding that the parent has been physically abusive to the child in question. McDonald, supra. The fact that a parent has been abusive in the home, and has subjected the child in question to a substantial risk of serious harm may demonstrate parental unfitness. See McDonald, supra.

The trial court also found that Jerry had endangered J.P.'s well-being by instructing him to ride his bike twenty-five blocks to his place of employment, and that Jerry's lack of character contributed to his parental unfitness, particularly the false accusation regarding his wife and their oldest son. Although Jerry denied making the false allegations, two other witnesses testified that Jerry had indicated he had photographs of Yolanda behaving inappropriately with her oldest son. The trial court credited these witnesses' testimony and found that Jerry's attempt to sabotage Yolanda's relationship with her children made him unfit to have custody of the parties' children. We have often stated that we know of no other case in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981). In this instance, the trial court heard the testimony and observed the witnesses' demeanor. Given the standard of review and the duration of this case in the trial court, we cannot say that the trial court's decision is clearly against the preponderance of the evidence.

As to J.A., Jerry had failed to maintain contact with him for some time. He neither visited J.A. before the permanent custody placement, nor after, and the facts showed that he had been in Vergie William's custody since he was an infant. Jerry's lack of involvement and visitation demonstrates a manifest indifference toward J.A., and we affirm the trial court's permanent custody placement as to him.

Additionally, the Arkansas Code permits placement of dependent-neglected children in the permanent custody of another individual when the parent has failed to comply with court orders or upon proof that reunification services should be required to reunite the minor with his parents, and it is in the child's best interest. Ark. Code Ann. § 9-27-334.

In this case, Jerry had not complied with all of the trial court's orders. He failed to timely complete paperwork, which resulted in the cessation of J.P.'s counseling treatments. He failed to attend counseling sessions. He failed to complete anger management classes and was abusive to his wife in the home. Jerry also lied to the trial court. Based on Jerry's noncompliance with the trial court's orders, the trial judge have court could reasonably found that the State proved by a preponderance of the evidence that J.P. and J.A. should be placed in the permanent custody of Vergie Williams. Ark. Code Ann. § 9-27-334.

Accordingly, we affirm the trial court's order.

Affirmed.

Pittman, C.J., and Crabtree, J., agree.

1 During hearings the children were also referred to as J.P. Johnson and J.A. Johnson.