*1 v. WARREN Dawn SYKES Kimberly Justin CA 06-1002 of Arkansas
Court Appeals 13, 2007 delivered Opinion June *2 Richardson, Melissa B. for appellant. Warren,for appellee.
Justin B. Dawn Judge. Kimberly Sykes ohn Robbins, J 16, the 2006 order of the appeals May Craighead County Brooke, Circuit Court of her granted infant custody daughter, Brooke’s biological Warren. this one-brief appellee Justin contends that the trial decision to appeal, appellant judge’s grant to Warren is the custody of the clearly against evi- preponderance dence and be must reversed. Her includes the argument following of error in the allegations consideration of appellee’s request (1) consideration of custody: of improper appellant’s receipt govern- ments benefits her children instead of gainful attaining employ- ment; of (2) Brooke from her three improper separation half-siblings insufficient evidence to appellant’s custody; (3) the finding would better facilitate the non-custodian than insufficient evidence to (4) the appellant; finding twin with Down’s caused appellant’s daughters Syndrome undue drain on attention. We are convinced appellant’s parental erred, the trial court and therefore we clearly reverse of change The standard of review in is well child-custody appeals novo, settled. We review the evidence de but we will not reverse of fact unless it is shown that are findings clearly contrary of the evidence. v. preponderance Thompson Thompson, 89, Ark. 974 S.W.2d 494 We (1998). also App. give special deference to the trial court evaluate and superior position of the witnesses in credibility cases. child-custody Barrett, 460, Hamilton v. 337 Ark. A (1999). when, is of finding the evidence clearly against preponderance it, there is evidence to court is although left reviewing made. that a has been conviction mistake a definite and firm see 105 (1999); Ark. 986 S.W.2d App. Hollinger v. Hollinger, 304 (2003). 129 S.W.3d v. 84 Ark. also Dunham Doyle, Ann. is Ark. Code to the current relevant appeal Specifically of an forth the law on which sets 2005), 9-10-113 (Supp. § child. The statute illegitimate provides: woman, legal When child is born to an unmarried (a) to the child until be in woman birth giving shall a court (18) unless age eighteen child reaches the child in enters an order competent jurisdiction placing party. another *3 a he in A has established (b) paternity biological the in circuit court jurisdiction, may petition court of competent the for child. custody the where the child resides county a father may biological upon award (c) that: showing child; the He is a fit raise
(1) He his the child (2) by provid- has assumed toward responsibilities child; care, and financial for the protection, ing supervision, the the award It is in the best interest of child to (3) biological father. Wells, 355, 98 S.W.3d (2007)
See also Harmon v. Ark. that if the father is in the context of given (explaining paternity, order of then he is not visitation pending paternity, temporary a in circum- held to the burden of material change demonstrating however, a in order is if visitation stances change custody; prior circumstances, in then a he is to show permanent, required change addition to statutory proof). were married
The salient facts are these: The never parties their lived had known each other most of never together, they 17, lives, lived was born on March 2005. The and Brooke parties a miles age few apart Appellant, approximately Jonesboro. three when Brooke was was the mother of already girls thirty, born; twenties, not their father.1 his was Appellee, early appellee birth, in the for Brooke’s and he was present purchased hospital seat, car and formula for the also diapers, baby. Appellee placed born, Brooke on health insurance after she was day policy he Acknowledgment signed Paternity. Difficulties arose between parties regarding quickly 2005, 20, care and visitation of Brooke. On filed a April appellee “Petition Petition or for for in the Alternative Paternity, Custody for Visitation In that he that Privileges.” alleged petition, appellee father; that he had for he was taken responsibility daughter, awas fit and he wanted of Brooke it was because parent, interest; in her best that should child pay support. asked court-ordered visitation because alternatively Appellee he was reasonable visitation being deprived by appellant. On filed a that May response stating father; custodian; was the she that that were
appellee unwed that a fit nor had he parents; child; assumed should be ordered to pay work schedule was support; appellee’s custodian; incongruent that she had being concerns about Brooke; sister around being should be appellee’s until permitted only he supervised proved for Brooke. capable caring
There was an order agreed temporary following temporary hearing May 2005 granted temporary custody appellant, *4 set forth standard visitation and ordered privileges appellee, summer, $82 week in child pay per Later that support. drew their own parties up agreement temporary regarding visitation the final that pending hearing. They agreed beginning would mid-August have one or two three-hour visits the week and evening during weekend visitation alternating from 5:00 to 12:30 Saturday p.m. p.m. Sunday. 14, 2005, At the conducted on hearing December
testified that he been had for five-and-a-half as employed an assistant mill-head and he his operator, work shift so that changed he could exercise visitation with Brooke. still lived with Appellee daughter oldest was fathered Keith Barnes. Barnes child Appellant’s pays daughter. girls and visits his The next two are twins, fathered Killian. The twins’ by Gary father does not child or visit them. receives month for each pay $603 Appellant per twin SSI. that he the court and assured but he wanted custody
his parents, if he were granted his own living quarters would acquire environment stable he had a more living believed Appellee that Brooke he would ensure He said home. a Christian did not he although his extended family, time with a lot of spent his work conflicted unless to care for baby on parents rely and always reliable said he had transportation visits. He with his visits, never and he said appellant came to daughter pick up Instead, he all said bought Brooke. he sent any supplies house. them at his items and parents’ kept necessary him would not keep appellant complained Appellee medicine for him or any medical issues informed any him not allow would He also appellant Brooke. complained the Thanksgiving holiday. and over several times July visitation schedule, he although altered the visitation He they agreed stated of their schedules. Appellee both it was to accommodate said were about who twin daughters, some concern appellant’s because old, they harm Brooke accidentally might eight years delayed, were developmentally often threw things play, of attention inordinate amount the twins required he thought house was always He also said that mother. appellant’s from their that he noted Brooke. a hazard to Appellee which was messy, did not work but worked and support, appellant paid assistance. and other on Medicaid governmental relied but if he were given full custody, wanted Appellee as well. He assured would work he thought joint custody privilege, that she to ensure that he would work the court he would be and that if he had custody, enjoyed needs. health-care about Brooke’s with information forthcoming unfit was an claim that parent; did not Appellee best that Brooke’s fit but of them were both parents, thought with him. interest was to be that she had four and testified the stand took in their work, for them and she cared she did not
daughters, $224 she received monthly house. She said rent three-bedroom $1206 she received from her oldest daughter’s child support had Down’s who her twin daughters in SSI for month per *5 from receiving and she was currently Syndrome, that, able to said she was With she for Brooke. appellee Medicaid, children, on she had the children her and and herself insurance. Appellant was now on Brooke appellee’s that except said received lunches at that twins reduced-price elementary WIC, was which school. approved Appellant Brooke’s formula. said she her time for her caring daughters, Appellant spent movies, rodeos, them the to to and to to
taking oriented park, family- mother, She three concerts. was full-time the older school, attended her available to care for the all girls leaving baby there were that some issues day. Appellant agreed regarding to this but she felt up hearing, justified leading refusing when sister was because believed her appellee’s present to be a user. She believed that Brooke’s father was entitled to drug visitation, far, but thus when there were he would not problems, work it out but would instead scream and at cuss her. She also said one who wanted to make in the appellee changes visitation that ended time his with Brooke. up reducing Appellant believed that not a fit because he had temper and was abusive. said She this was verbally emotionally why their deteriorated as her relationship Brooke pregnancy progressed. noted that oftentimes Additionally, appellant after hours, had Brooke for a few only would baby’s diaper not be which her made changed, skills. question parenting She said she and her four at that time daughters, ranging old, from ten nine months had a and she good relationship, that her twins had a mild explained form Down’s. She said only she had been made aware mother that through appellee’s house, had all the necessary baby supplies so that was parents’ she never bothered to send why for visits. additional with Brooke any things testified that she had no problem appel- lee’s but she did have a with his parents sister because of problem convictions and drug problem. court, the trial response questions con-
ceded her children born were out of wedlock and that she did home, not work out her but she was steadfast her belief that morals, she was them benefitted teaching good because they it was best for them she was an experienced parent, have her the home for them she present day. She said was every assistance; rather, not on food or she stamps housing lived on child from children, SSI, the oldest and twins’ youngest had the twins on lunches and Medicaid as well reduced-price as for WIC formula. With she baby good management, able needs and be home full-time. She girls’ she had fathers, never been married to agreed her children’s any *6 to in divorce because man she married ended
and the one However, she a fine she believed addict. drug stable, home, did not and that he was not emotionally in remarks child. The trial judge, know to take care of small how her of working clearly disapproved questioning, mother. in succession as unwed children having the under that she would take matter trial stated The The on March 2006. A letter issued advisement. opinion above, and made the discussed letter outlined testimony four-page relevant findings: following of the birth of this child was unwed the time [appellant] Ms. Sykes lies with her. To her custody and therefore presumption credit, her she has other quarters, Ms. does have own Sykes living child time and Mr. Warren with which the may spend siblings has his visitation given up large voluntarily portions [appellee] the past. hand, the more Mr. Warren to be certainly appears
On the other adult. He has been responsible regularly employed stable Ms. not had a (5)4) five and while has Sykes one-half past His mother’s in the last ten concerns (10) years. regarding job her children seem attention for care of disabled appropriate family. have from his well Mr. Warren placed. appears filing He has taken the child appropriate child, necessities for the adding legal proceedings, buying Mr. believes is the insurance and so forth. Court Warren on facilitate non-custodial more likely stable, likely and the more wholesome parent, Therefore, this Court that Mr. for the child. finds environment has with the mother Warren overcome presumption the best of this child dictate that be placed and that interest Mr. Warren. Mr. of Ms. to Warren’s sister Sykes Because objections child, her fitness for this the child to care the questions regarding left in her care. shall not be alone 16, 2006, filed on commemorating A formal order was May filed a notice of challeng- this Appellant timely appeal, disposition. that the contends the award appellee. ing reversible error this best-interest trial court committed making that: on this decision. She by stating primarily expounds argument *7 influenced its the court was (1) disapproval improperly apparent aid; off (2) of not government working living appellant court have absent some should not siblings excep- separated circumstance; was tional the court to believe (3) wrong issues; court would better facilitate visitation was (4) that the undue effort to believe twins took away wrong parenting from adds in that the trial erred Brooke. She her brief mother, because she not found be unfit more was to and because the fact should have been to relin- weight given hours final Because on quished pending hearing. whole, we left with are a definite firm conviction that an committed, error has been we reverse. that, note at
We the outset to appellant’s contrary assertion, the trial did not to find her have unfit in order to Brooke grant to her father. Once showed to the satisfaction of the trial court that was a fit and had parent child, taken for his the trial court was left to solely make a determination. best-interest Ark. Code Ann. 9-10-113. § determination, to the best-interest
Moving
we recog
involved,
nize that unless
circumstances are
exceptional
young
children should not be
from each other
their
separated
by dividing
453,
v.
Johnston, 225 Ark.
factor means, lived against within her appellant. her, due receiving legitimate receiving aid for her governmental disadvantaged daughters, managed run an household where she could independent be full-time Professor parent. Atkinson in his treatise on child custody Jeff states that “financial resources of the are parties irrelevant normally Atkinson, to a determination.” Modern Child Custody Jeff 4-20, Practice adds, at 4-47 ed. He (2d 2002). though, § “financial resources of the been have found to be relevant parents to the extent that reflect they stable parent’s ability v. was cited with Taylor Taylor, Id. This text approval
home.”
re-
The court
Taylor
Another inordinate amounts was that the twins took best-interest inquiry is no household. There for care in attention appellant’s their The twins were days that statement. school-age spent to be school, This freed with the oldest daughter. along To the the school year. a full-time solely baby during home, were at this took extra time when that the twins extent siblings together, is to be considered against preference keep *8 we discussed above. as the trial court was
The last concern noted by major to facilitate visitation would be the more parent likely we are the non-custodian. While certainly duty-bound court, we made the trial determinations honor credibility that the factor is finding that this sole enough support disagree in her father’s child was better served best interest of this Moreover, that the father the trial court acknowledged voluntarily visitation, which we cannot amounts of ignore. large relinquished hand, down a full-time the father had held job On the other and had for several had family parenting, years, Nevertheless, he lived with his for the child. taken responsibility left alone with the child he had a sister who could not be parents, concerns, and he had no in raising due to experience drug-abuse child. in the record to there is evidence Although are left with a distinct to the we
decision to award custody clear error in firm that there was awarding custody impression Therefore, the trial the mother of this child. to the father instead of is reversed and remanded. court’s decision Baker, JJ., agree. Hart, Glover, dissent. Miller, JJ., Gladwin cannot say Gladwin, Judge, dissenting. I Robert J. to the were contrary the trial court’s findings clearly evidence; therefore, I dissent. majority preponderance the relevant facts. states adequately opinion
219 cases, In we consider the evidence reviewing child-custody novo, de but will not reverse the trial court’s unless findings are erroneous or of the clearly clearly against preponderance Middleton, evidence. Middletonv. 83 Ark. S.W.3d App. A is (2003). of the finding clearly against preponderance when, it, evidence there is evidence to although is court left with a definite and reviewing firm conviction that a mistake has been made. Id. We also deference to the give special of the trial superior court to evaluate and position of the witnesses in credibility cases. Durham v. child-custody Durham, 82 Ark. App. We know of (2003). no casesin which superior position, ability, opportunity the trial court to observe the as parties carry as those great weight children. 36, 129 Dunham v. involving 84 Ark. Doyle, S.W.3d (2003). cases the consideration is the primary welfare and involved, best interest of the child while other Durham, considerations are merely secondary. supra. This case turns on a simply best-interest The trial analysis. found, as a result of the that the testimony, ac- knowledged paternity child and had taken parties’ respon- for her in the sibility face of adverse conditions and increasing Further, from objections the trial appellant. court found appellee to be the more stable and adult. responsible Whether a is stable and responsible goes best interest of the child. I with the disagree statement that the majority’s trial court’s finding would be the more facilitate likely with the non-custodian is the sole factor that supports finding should be *9 placed The trial court appellee. considered all the Further, testimony presented. needs special of the twins ais factor for the court to proper consider when toward the looking best interest of the child. parties’ held Appellee a full-time had the job, of his had taken family, for his child. The trial court was in the superior evaluate and position of the witnesses. Given the credibility deference that special we to this give I am not left superior position, with a distinct and firm that the trial impression erred. clearly Miller, J., joins.