Coleman v. Ark. Dep't of Human Servs
Annotate this Case
Download PDF
Cite as 2010 Ark. App. 851
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA10-817
Opinion Delivered
DECEMBER 15, 2010
CAROLYN COLEMAN
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT
[NO. JN 2008-180]
HONORABLE BARBARA HALSEY,
JUDGE
AFFIRMED
JOHN B. ROBBINS, Judge
Carolyn Coleman appeals the Greene County Circuit Court’s order awarding
permanent custody of her daughter, K.W. (born 4/3/02), and her son, C.W. (born 8/3/03),
to their father, Eddie Wester, and closing their portion of the dependency-neglect case. The
court allowed Coleman’s third child, K.C. (born 3/19/94), to remain in her custody and kept
her portion of the case open.1 Coleman asserts that the court erred in granting permanent
custody of K.W. and C.W. to their father and closing their portion of the case at the
permanency-planning hearing by not following certain statutory requirements regarding the
termination of reunification services. Finding no error, we affirm.
1
Wester is not K.C.’s father.
Cite as 2010 Ark. App. 851
The Department of Human Services (DHS) had been involved with the family since
June 2008. On November 7, 2008, DHS petitioned for emergency custody of all three
children. According to the affidavit filed with that petition, the children were living with
Gloria Tensley, their guardian. The home in which the children were living was cluttered.
There were allegations that the children had hygiene problems reported by the school; that
Tensley had failed to take K.W. to a medical appointment; that Tensley spoke negatively
about Coleman to the children; that she yelled and cursed at the children; that she was abusive
to K.W.; and that she locked K.C. out of the home. There were also allegations that Tensley
threatened to take the children to a Native American reservation if DHS attempted to place
the children in foster care. An order for emergency custody was entered on November 7,
2008.
The court later found probable cause for entry of the emergency order. The probablecause order required Coleman to cooperate with DHS, remain drug free and submit to
random drug tests, submit to a drug and alcohol assessment and follow its recommendations,
and obtain and maintain stable housing and employment.
On January 7, 2009, the court held an adjudication hearing and found all three
children dependent-neglected. Temporary custody of all three children was awarded to Tanya
and Phillip Simpson. The goal of the case was to be reunification. Coleman’s visitation with
the children was to be supervised, with DHS given the discretion to increase the visitation
both as to the type and length of the visits. Coleman was ordered to cooperate with DHS,
-2 2
Cite as 2010 Ark. App. 851
follow the court’s orders and the case plan, remain drug free and submit to random drug tests,
submit to a drug and alcohol assessment and follow its recommendations, obtain and maintain
stable housing and employment, and submit to a psychological evaluation and follow the
recommendations. The case was referred to the Office of Child Support Enforcement to
pursue collection of child support.
A review hearing was held on March 30, 2009. The court found that Coleman had
complied with the case plan by submitting to random drug screens, submitting to a drug and
alcohol assessment and following the recommendations for outpatient treatment, submitting
to a psychological evaluation, obtaining stable housing, and attempting to find employment.
The court also placed the children on a thirty-day trial placement with Coleman. If there
were no problems, legal custody of the children would be returned to Coleman at the end of
the trial placement. After a successful trial visit, custody of all three children was returned to
Coleman on April 23, 2009.
Another review hearing was held on August 26, 2009. The court found that it was
in the children’s best interests for their custody to remain with Coleman following the
successful trial placement. The court found that, although Coleman had not completed
parenting classes, she had otherwise complied with the case plan.
On September 4, 2009, the department filed a petition seeking emergency custody due
to Coleman’s arrest for outstanding fines and a caregiver being unavailable. An order of
emergency custody was entered on September 4, 2009. The probable-cause order gave DHS
-3 3
Cite as 2010 Ark. App. 851
the discretion, subject to approval by the attorney ad litem, to return custody to Coleman
upon her release. Such an agreed order returning custody was entered on October 6, 2009.
On October 26, 2009, Eddie Wester filed a petition seeking visitation with K.W. and
C.W. The petition asserted that, although Wester and Coleman were never married, he had
acknowledged his paternity by having his name placed on the children’s birth certificates and
that he had provided for the children.
Another review hearing was held on October 30, 2009. Custody of the children
remained with Coleman. The court found that Coleman had complied with the case plan by
submitting to random drug screens, submitting to a drug and alcohol assessment and following
the recommendations for outpatient treatment, submitting to a psychological evaluation,
obtaining stable housing, and attending some parenting classes. The court granted Wester
standard weekend visitation. The court noted that K.C. had been improperly thrust into the
role of a parent by having to help her siblings with their homework.
On November 24, 2009, DHS filed another motion seeking emergency custody of the
children, based on allegations that K.W. and C.W. were left alone. There was also an
allegation that Gloria Tensley was allowed to have contact with the children in violation of
the court’s previous orders. Coleman had refused to take a drug test on November 19, stating
that she would be positive for drugs if tested. An order of emergency custody was entered on
November 24, 2009. The court subsequently granted temporary custody of K.W. and C.W.
to their father at the probable-cause hearing, with Coleman having supervised visitation. The
-4 4
Cite as 2010 Ark. App. 851
parents were ordered to cooperate with DHS and submit to random drug screens. The court
also ordered that K.C. be placed into foster care if it is determined that Shawn Hurt was
allowed to spend the night at Coleman’s home.
Yet another review hearing was held on January 20, 2010. The primary goal of the
case plan was to be reunification with Coleman. The court continued custody of K.W. and
C.W. with their father while Coleman retained custody of K.C.
On February 12, 2010, the department filed a motion to terminate reunification
services as to K.W. and C.W., alleging there was little likelihood that services to Coleman
would result in successful reunification with the children. The motion also asserted that K.W.
and C.W. are younger and require more supervision, direction, and parental care than their
teenage sister K.C.
The hearing leading to this appeal was held on March 3, 2010. Kathy Ray, the DHS
case worker, testified that the department was recommending that K.W. and C.W. remain
with their father and that portion of the case be closed while K.C. remain in Coleman’s
custody. Ray said that the department was not asking to be relieved of providing services to
Coleman and K.C., just to Wester, K.W., and C.W. She reported that K.W. and C.W. were
doing very well with their father, and that K.C. was doing better in school. Ray stated that
Coleman was never home so the department could visit the home for inspections and drug
tests. She noted that Coleman had recently moved, but she had been unable to visit the home.
-5 5
Cite as 2010 Ark. App. 851
On cross-examination, Ray said that the children had been out of Coleman’s care for
approximately nine months and that parents are usually allowed twelve months or more to
attempt reunification. She explained that DHS was recommending the change in the case plan
because of Coleman’s lack of cooperation with the department. According to Ray, Coleman
had not openly refused to allow DHS workers entry into her home, but simply refused to
answer the door when they knocked. She said that the only contact she had with Coleman
was when Coleman initiated the contact by calling her. She acknowledged that she knew
Coleman’s place of employment and phone number yet did not attempt to arrange for a time
to visit Coleman’s home. She called Coleman “grossly noncompliant.” Ray explained that
DHS was recommending that K.C. remain in Coleman’s custody because of her progress in
school and the fact that she is older and can “pretty much care for herself.” She also said that
DHS had not been able to randomly test Coleman for drugs because the only tests that were
done were done on days court hearings were held and, thus, Coleman knew of the tests in
advance. She said it would be easier for Coleman to give her an accurate work schedule so
that they could arrange times to visit and conduct the drug screen.
Appellee Carolyn Coleman testified that she did not have anything negative to say
about Wester or his parenting of K.W. and C.W., adding that he had done a very good job.
Although she wanted the children to be with her, she said that Wester was the only other
person she would want to have custody. She admitted that she had problems remaining in
contact with DHS due to a work schedule that changed every week. She asserted that she had
-6 6
Cite as 2010 Ark. App. 851
remained in contact with DHS by sending text messages to another case worker who called
Coleman back. Coleman denied that she tried to avoid the DHS workers, adding that she
never heard them knocking at her door. She said that DHS had been in her life since 2008
and that she “would rather [DHS] take care of somebody else.” She also expressed her
opinion that DHS could not provide her with anything other than to make sure things were
“okay.” Coleman acknowledged that she knew the location of the DHS office but had not
dropped her schedules off. Nor had she sent her schedule to DHS by text message. She also
admitted that she had failed at least one drug test, adding that her drug of choice was
methamphetamine. She also said that she had received drug and alcohol counseling, but had
not been to outpatient treatment.
On cross-examination, Coleman stated that she did not want the case closed on K.W.
and C.W. unless they were going to go home with her, and she objected to the goal being
changed. She added that she did not think it would take long, perhaps three months, for her
to rehabilitate herself to get K.W. and C.W. back with her. She was willing to take advantage
of whatever services DHS thought she needed in order to be reunified with K.W. and C.W.
Coleman said that she had given Wester approximately $600 to help with K.W. and
C.W. since he has had temporary custody. She explained that she refused a drug screen on
November 19, 2009, because she had taken two Xanax that were not prescribed to her.
Coleman would not say that she had significantly complied with the court’s orders and case
plan, stating instead that she had “measurably” complied. Although she preferred to have
-7 7
Cite as 2010 Ark. App. 851
K.W. and C.W. returned to her, she acknowledged that it would be better for the children
to finish the school year with their father. She asserted that she was financially able to care for
her children and would rely on her job and Social Security benefits for the children.
Bill Sweetwood, a certified alcohol and drug counselor and a licensed addictions
counselor, testified that he provided mental-health counseling and substance-abuse counseling
to Coleman. He never felt that Coleman was avoiding him and said that she was not difficult
for him to contact. He believed that he could make enough progress with her to warrant
giving her additional time. Sweetwood had also been in Coleman’s new home and reported
that it was an appropriate housing environment. He believed they could work toward her
providing the type of home environment and the type of parenting relationship that Coleman
needed to be able to take care of the children within the near future.
Sweetwood said that, although there were issues of Coleman being in denial as to the
extent of her substance-abuse problem, she had made improvements dealing with the issue.
He also said that he was working with Coleman on anger and frustration issues, calling her
testimony in court a “significant improvement” over how she handled herself during her
testimony at earlier hearings. According to Sweetwood, Coleman had “pretty much”
complied with everything in his treatment plan. He also said that there were times when
Coleman had difficulty accepting responsibility for her actions.
Eddie Wester testified that K.W. and C.W. currently resided with him and that he
wanted that arrangement to continue with him as permanent custodian. He added that he did
-8 8
Cite as 2010 Ark. App. 851
not want the children completely pulled away from their mother in the sense that Coleman
could never regain custody or see the children. He said that the children had not had any
problems in school since they had been with him, nor had there been any other issues. He
agreed that Coleman should have standard visitation with the children. Wester did not object
to Coleman having additional time to work toward eventually regaining custody of the
children, stating that Coleman was making an effort to improve her situation in order to
regain custody. According to Wester, the children preferred to live with Coleman. He said
that he had visited Coleman’s home and agreed that it was appropriate. Coleman had also
given him money to help with the children and the transportation between Wester’s home
in Saline County and Coleman’s home in Greene County. He said that the children were
now stable whereas they had not been when they were with Coleman.
The court ruled from the bench and granted permanent custody of K.W. and C.W.
to their father and closed their portion of the case, based on the fact that the children had been
removed from Coleman’s custody on three occasions. The court noted that it could not
reconcile Coleman’s testimony, finding that she talked out of both sides of her mouth. The
court found no significant progress or compliance on Coleman’s part. The court believed that
it was in a bad position as to K.C., but left her in Coleman’s custody and kept her portion of
the case open. Coleman was granted standard visitation with K.W. and C.W. The order
memorializing the court’s ruling was entered on May 26, 2010. Coleman timely filed her
notice of appeal.
-9 9
Cite as 2010 Ark. App. 851
In equity matters, such as 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.
Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007). 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. See id. We give
due deference to the superior position of the circuit court to view and judge the credibility
of the witnesses. See id. This deference to the circuit court is even greater in cases involving
child custody, as a heavier burden is placed on the circuit judge to utilize to the fullest extent
his or her powers of perception in evaluating the witnesses, their testimony, and the best
interest of the children. See id.
We note at the outset that some of Coleman’s arguments are difficult to follow.
Although the circuit court’s order from which this appeal arises is styled as a permanencyplanning order, Coleman argues that the order was, in reality, a no-reunification-services
order that did not comply with the statutory requirements.2 We need not decide whether the
circuit court entered a no-reunification-services order because, even if we agreed with
Coleman’s argument, we hold that the court substantially complied with the requirements of
2
Arkansas Code Annotated section 9-27-365 governs motions for no reunification
services and provides that any party may file such a motion at any time. Ark. Code Ann. § 927-365(a)(1)(A). The code also provides that an order terminating reunification services shall
be based on clear and convincing evidence that termination of reunification services is in the
children’s best interests and a finding of one or more of certain listed grounds. Ark. Code
Ann. § 9-27-365(c)(1), (2).
-1 0 1
Cite as 2010 Ark. App. 851
section 9-27-365 by making specific findings that the children had been removed from
Coleman’s custody on three occasions and that K.W. and C.W. had been successfully placed
with their father and were without need of further services from DHS. One of the grounds
for granting a no-reunification-services motion is a finding that a parent had subjected a child
to aggravated circumstances, which includes that the child had been removed from the
custody of the parent or guardian and placed in foster care or the custody of another person
three or more times in the past fifteen months. See Ark. Code Ann. § 9-27-365(c)(2)(A)(v).3
Coleman does not dispute this finding.
Contrary to Coleman’s argument, nothing in the Juvenile Code prohibits an award of
permanent custody prior to the children being out of the home for twelve months. Moreover,
the case had been ongoing for more than fifteen months at the time of the hearing.
In the present case, we cannot say that the circuit court clearly erred in placing K.W.
and C.W. in the custody of their father. As previously mentioned, Coleman’s actions required
DHS to remove the children on three occasions over a fifteen-month period. Coleman was
uncooperative with DHS regarding making herself available for drug testing, and most of the
recent tests that had been performed were positive. Continuing drug use shows both an
indifference to remedying the problems plaguing the family and is not in the best interest of
the children. Carroll v. Arkansas Dep’t of Human Servs., 85 Ark. App. 255, 148 S.W.3d 780
3
Pursuant to Ark. Code Ann. § 9-27-365(d), if the court grants an order terminating
reunification services, a separate permanency-planning hearing is not required if the court
achieves permanency for the children through permanent custody.
-1 1 1
Cite as 2010 Ark. App. 851
(2004). Coleman herself admitted that she had not made significant progress with the case
plan. This left the children in a state of uncertainty as to if, or when, Coleman could regain
custody of them. Living in such a state of prolonged uncertainty is not in the children’s best
interest. See Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001).
There was also evidence that the children were thriving with their father. The primary
consideration in child-custody cases is the welfare and best interests of the children involved;
all other considerations are secondary. Hicks v. Cook, 103 Ark. App. 207, 288 S.W.3d 244
(2008). Because we are not left with a distinct and firm conviction that a mistake has been
committed, we affirm. See Judkins, supra.
Affirmed.
G RUBER and B ROWN, JJ., agree.
-1 2 1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.