Ardith Laray MOSSHOLDER, Appellant v. Daniel COKER, Martha Coker, and Minor Children, Appellees
No. CV-16-29
Court of Appeals of Arkansas, DIVISION IV.
Opinion Delivered May 3, 2017
2017 Ark. App. 279
McKinney & McKinney, PLLC, Conway, by: Quincy W. McKinney; for appellee Martha Coker.
LARRY D. VAUGHT, Judge
Appellant Ardith Laray Mossholder (“Laray“) appeals the July 7, 2015 order entered by the Faulkner County Circuit Court awarding appellee Martha Coker permanent guardianship of Laray‘s children, H.C. (born July 7, 2004), and D.C. (born August 13, 2005). On appeal, Laray argues that the circuit court erred in awarding guardianship to Martha because she did not properly intervene; she was an unsuitable guardian; and she failed to prove that Laray was unfit. We affirm.
This case has a long history.1 Laray and appellee Daniel Coker (Martha‘s son) were
Daniel married Kathleen Coker (“Kathy“) in August 2008. Laray married Joshua Mossholder in 2008.2
The record reflects that in March 2008, Laray began making reports to the Arkansas Department of Human Services (“DHS“) and the Faulkner County Sheriff‘s Office that Daniel was sexually abusing H.C. and D.C.3 On September 30, 2008, Daniel filed a petition for change of custody, alleging that a material change in circumstances had occurred. He claimed that Laray had made “numerous complaints” that he had sexually abused H.C. and D.C. that were unfounded and were detrimental to the parties’ children. Laray responded and counterclaimed for custody, claiming that the allegations of sexual abuse were true and supported by physical evidence. An attorney ad litem was appointed for the children on January 28, 2009.
Between 2009 and 2012, Laray and Daniel filed multiple motions (i.e., change of custody, modify visitation, contempt) against each other, and temporary custody of the children was transferred back and forth between them. In June 2012, an emergency hearing was held wherein the attorney ad litem reported to the circuit court that there had been numerous allegations of abuse, that she believed Laray was exacerbating the children‘s fear and negativity about Daniel by calling him a pedophile and a rapist, that what the children were reporting was unbelievable, that the children‘s counselors were not trained to determine whether the сhildren were telling the truth, that the children had been forced to undergo multiple examinations and no physical evidence of abuse had been found, and that the parties and their children needed to be evaluated by a forensic psychologist, which had been previously ordered by the court. The ad litem stated that Daniel had submitted to the evaluation but that the psychologist could not conclude the evaluation until Laray submitted to the testing. The attorney ad litem stated that Laray would not follow court orders.
Dr. Deyoub performed forensic psychological evaluations of the parties and their children in December 2012. In sum, Dr. Deyoub found that Daniel had no diagnoses. In great detail, he documented his evaluation of Laray and diagnosed her with сyclothymic (a mood disorder) and borderline personality disorder. He found that both H.C. and D.C. denied any sexual abuse by their father and indicated that Laray told them that their father sexually abused them. Dr. Deyoub stated that he was unable to find that Daniel abused his children and that the children “are being harmed by these constant allegations and unending examinations.” Dr. Deyoub recommended that Daniel be awarded primary physical and legal custody of the children and that Laray have supervisеd visitation with the possibility of unsupervised visitation at a later date upon approval by the court.
A hearing was held on August 26-31, 2013, wherein twenty-four witnesses testified. The circuit court held another hearing on September 5, 2013, to announce its ruling. The circuit court noted that Martha testified that she stood ready to accept custody of H.C. and D.C. and that she orally moved to intervene in the case. The court granted her oral motion to intervene. The court found that the children had been аbused; however, it stopped short of identifying who subjected the children to the abuse. The court stated that there was evidence presented that Daniel sexually abused H.C. and D.C. and evidence that Laray abused them by manipulating and coaching the children to lie and say he did. As such, the court found that neither parent was fit to have custody and placed the children in the temporary custody of Martha. The court noted that Daniel and Kathy were living with Martha and would “be around the children a lot.” The court also awarded Laray three-day-a-month visitation to be supervised by Martha.5
On January 21, 2014, Martha filed a petition for guardianship of H.C. and D.C.6 A hearing on her petition was held January 21, 2015. Martha, Laray, and the children‘s counselor, Lena Hancock, testified. In an order filed on July 7, 2015, the circuit court found that Martha was suitable and qualified to be the permanent guardian of H.C. and D.C. and that the guardianship was in their best interest. The court therefore granted Martha‘s peti-
Laray‘s first point on appeal is that the circuit court erred in granting Martha‘s petition for guardianship because she did not properly intervene. Specifically, Laray contends that Martha violated
Rule 24(c) provides that a “person desiring to intervene shall serve a motion to intervene upon the parties as provided in
Martha did not file a written motion to intervene in this case. However, this does not defeat her intervention. At the August 2013 hearing, Martha testified that she was willing and able to take custody of H.C. and D.C. At the September 5, 2013 hearing, in which the circuit court announced its rulings related to the August 2013 hearing, the court stated that it recalled that although Martha had not filed a verified petition or pleading seeking to intervene, she requested custody of the children. All counsel, including Laray‘s, agreed. The court again asked Martha if she was willing to take custody of the children, to which she responded yes. The circuit court then ordered that temporary custody of the children be given to Martha. No objection was made at this hearing. The November 7, 2013 order formalizing the circuit court‘s September 5 oral findings provided that “Martha Coker ... testified under oath that she stands ready to take custody of the children. Based on the uncontroverted oral motion before the Court, Martha Coker is permitted to intervene in this case.” Thereafter, on January 21, 2014, Martha, as an intervenor, filed a petition for guardianship, to which Laray responded. A hearing was held on Martha‘s petition for guardianship one year later, on January 21, 2015. Laray attended the hearing and testified.
We review a circuit court‘s decision permitting a party to intervene for an abuse of discretion. Winn, 2013 Ark. App. 147, at 6, 426 S.W.3d at 537. Here, the
Laray‘s second point on appeal is one of two challenges to the circuit court‘s order granting Martha‘s рetition for guardianship. Guardianships are special proceedings that are governed by statute. In re Guardianship of W.L., 2015 Ark. 289, at 5, 467 S.W.3d 129, 132.
Before appointing a guardian, the court must be satisfied that:
- The person for whom a guardian is prayed is either a minor or otherwise incapacitated;
- A guardianship is desirable to protect the interests of the incapacitated person; and
- The person to be appointed guardian is qualified and suitable to act as such.
When the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child.8 Fletcher v. Scorza, 2010 Ark. 64, at 11, 359 S.W.3d 413, 420 (citing Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000)).
We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Id. at 10, 359 S.W.3d at 420. A finding is clearly erroneous 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. Id., 359 S.W.3d at 420. In cases involving children, we afford even more deference to the circuit court‘s findings because our appellate courts have made it clear that there is no other case in which the superior position, ability, and opportunity of the circuit judge to observe the parties carries a greater weight than one involving the custody of a child. Sherland v. Sherland, 2015 Ark. App. 342, at 3, 465 S.W.3d 3, 6.
Laray‘s first challenge to the guardianship order is that the court erred in finding that Martha was a suitable guardian. Laray‘s sole argument under this point is a regurgitation of the evidence she claims supports her persistent allegation that Daniel sexually abused H.C. and D.C.9 She contends that Martha is an unsuitable guardian because much of the abuse occurred in her home and that she “has demonstrated that her need to protect Daniel is paramount to the safety and best interest of [H.C. and D.C.].”
There were at least twelve DHS and two Faulkner County Sheriff‘s Office investigations instigated by Laray wherein she alleged Daniel sexually abused the children. These were all found to be unsubstantiated. The record reflects that H.C. and D.C. denied the abuse and revealed that their mother told them to lie about it. Dr. Deyoub, who performed a forensiс psychological evaluation of Laray, Daniel, and the children, concluded that Daniel did not sexually abuse the children and did not have “pedophile tendencies.” Dr. Deyoub also concluded that Laray‘s personality test results were very elevated, which demonstrated psychopathic, paranoid, and “hypo-mania” tendencies. He diagnosed her with borderline personality disorder and opined that her test results “undermine[d] her allegations ... almost completely.” He found that her test results were consistent with her manipulating her children to lie about their father sexually abusing them. Dr. Deyoub further testified that the children reported to him that Daniel did not abuse them but that Laray told them to say he did. Dr. Deyoub placed no weight in the reports and testimony of the experts on which Laray relied. Dr. Deyoub stated that these experts merely treated H.C. and D.C. for abuse that did not occur; they did not perform forensic evaluations to determine whether the abusе occurred or whether the allegations were fabricated. He added that the children‘s false allegations of abuse against their father, along with the mental and physical examinations resulting therefrom, have been very detrimental to the children. Dr. Deyoub concluded that Daniel should have sole custody of the children and that Laray have supervised visitation.10
Lena Hancock, the children‘s therapist, testified at the guardianship hearing that the children told her that their fathеr did not abuse them and that they felt sadness for making false statements about their father at the request of their mother. Hancock stated that there was no evidence that Daniel sexually abused the children or that D.C. sexually abused H.C. or his half-sister. She further testified that Laray manipulated and coached the children to say they had been abused by Daniel when they had not. According to Hancock, much of the treatment she provided to the children addressed their sadness and guilt about being dishonest about the abuse at the request of their mother. She added that Laray was a source of anxiety and distress for the children. Hancock further testified that the children were doing well in Martha‘s custody, that they had a very good relationship with her, and that it was in their best interest to remain in Martha‘s custody.
Finally, Martha testified at the guardianship hearing that she had had custody of H.C. and D.C. since the August 2013 hearing and that they had been doing well. They were happy and stable. They had good attendance and grades at school. Martha stated that she had cared for the
Based on this evidence, the circuit court found that Daniel did not abuse his children and that Laray coached the children to say he did. We hold that these findings are not clearly erroneous. Accordingly, Laray‘s entire argument that Martha is not suitable is without merit. All that remains is a significant amount of evidence that Martha is suitable. Therefore, we conclude that the circuit court did not clearly err in finding that Martha is a suitable guardian.
Laray‘s second challenge to the guardianship order is that Martha did not meet her burden of proving that Laray is unfit. She claims that Martha “presented no evidence, no testimony or expert, and no witnesses to prove Laray was an unfit parent.”
Martha is not required to prove that Laray is unfit.
To the extent Laray argues that Martha failed to prove that Laray is unsuitable, we disagree. There was an even larger mountain of evidence presented in this case to demonstrate that Laray is unsuitable. Laray (1) falsely accused Daniel of sexually abusing their children and coached their children to report the abuse;11 (2) made reports that D.C. sexually abused H.C. and his half-sister that were unsubstаntiated and caused D.C. to be committed to a long-term-care facility; (3) manipulated the children by withholding gifts, toys, affection, and even visitation when they would not say that Daniel was abusing them; (4) was the stated stress-related cause for H.C.‘s and D.C.‘s diagnoses (by Hancock) of trichotillomania, an anxiety disorder that resulted in the children pulling out their hair; (5) was diagnosed by Dr. Deyoub with borderline personality disorder; (6) denied that she suffered from mental-health issues and refused treatment; (7) made no child-suppоrt payments during the seven-year pendency of the case; (8) violated court orders to pay support from March 11, 2014, forward; (9) authored a letter, after her last visit with the children in January 2014, voluntarily withdrawing from visita-
Based on this evidence, the circuit court‘s guardianship order found that Laray is not suitable to serve as guardian of the minor children, that she “engaged in conduct that constitutes the poisoning of the minds of the children,” and that she coached the minor children to make untrue statements. The court further found that, based on “days and days of testimony” and after the court hаd “observed [Laray‘s] demeanor, manner, inconsistencies in her testimony, and obvious attempt to evade,” she is not a credible witness. After considering all the testimony presented and the circuit court‘s superior position to weigh and assess the credibility of witnesses and their testimony, we are not left with a definite and firm conviction that a mistake was made by the circuit court when it found that Laray is an unsuitable guardian for her children. Therefore, we affirm the circuit court‘s order awarding guаrdianship to Martha.
Affirmed.
Gruber, C.J., and Gladwin, J., agree.