Contreras v. Ark. Dep't of Human Servs. , 2013 Ark. App. 519 ( 2013 )


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  •                                   Cite as 
    2013 Ark. App. 519
    
                     ARKANSAS COURT OF APPEALS
                                          DIVISION III
                                          No. CV-13-385
    
                                                      Opinion Delivered September 18, 2013
    
    MONICA CONTRERAS                                  APPEAL FROM THE WASHINGTON
                                   APPELLANT          COUNTY CIRCUIT COURT,
                                                      [NO. JV-12-190]
    V.
                                                      HONORABLE STACEY
    ARKANSAS DEPARTMENT OF                            ZIMMERMAN, JUDGE
    HUMAN SERVICES, CHRISTINE
    WILLIAMS, AND MINOR CHILD
                       APPELLEES                      AFFIRMED
    
    
    
                               WAYMOND M. BROWN, Judge
    
    
           Appellant appeals the circuit court’s grant of permanent custody of her son J.G., born
    
    February 15, 2002, to his maternal grandmother, Christine Williams. On appeal, she argues
    
    (1) that there was insufficient evidence that granting permanent custody to Christine Williams
    
    was in the best interests of the child and (2) that the trial court erred in granting permanent
    
    custody to Christine Williams and closing the case. We affirm.
    
           The Department of Human Services (DHS) exercised a seventy-two hour hold on J.G.
    
    on February 22, 2012, after appellant failed to pick up J.G. from school and was unable to be
    
    contacted. DHS filed a petition for emergency custody and dependency-neglect on February
    
    27, 2012, pursuant to Ark. Code Ann. § 9-27-303, and an order granting emergency custody
    
    was filed on that same date. On March 1, 2012, a probable cause order was filed finding it
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    necessary for J.G. to remain with DHS until the adjudication hearing.1 Following its March
    
    28, 2012 adjudication hearing, the court entered an adjudication and disposition order on
    
    March 29, 2012, in which it adjudicated J.G. dependent-neglected due to neglect and parental
    
    unfitness by appellant and temporarily placed J.G. with Christine. In that order, in addition
    
    to the case plan, the court required appellant to (1) cooperate with DHS; (2) keep DHS
    
    informed of where she was living; (3) participate in individual counseling; (4) refrain from use
    
    of illegal drugs and alcohol; (5) submit to weekly, random drug testing; (6) obtain and
    
    maintain stable housing; (7) demonstrate an ability to protect J.G. and keep him from harm;
    
    and (8) maintain contact with her attorney.
    
               Initially, appellant was not compliant with her case plan. She failed to (1) call DHS
    
    weekly; (2) cooperate with DHS; (3) follow through on counseling; and (4) submit to weekly,
    
    random drug screens. On April 13, 2012, she failed to appear at a show cause hearing which
    
    resulted in issuance of a bench warrant for her arrest on the same date. After being picked up
    
    on the arrest warrant on April 24, 2012, and appearing before the court on April 25, 2012,
    
    the court sentenced appellant to thirty days in jail; however, appellant was released by an
    
    order filed May 1, 2012, so that she could travel to Dallas, Texas, to appear before the county
    
    criminal court there.2
    
               By her August 30, 2012 review hearing, appellant had begun making progress in her
    
    case. A review order was entered on September 5, 2012, in which the court noted that
    
               1
                   A probable cause hearing was held on February 29, 2012.
               2
                   Appellant pled guilty to two unrelated charges and was sentenced to a period of time
    in jail.
    
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    appellant (1) completed her psychological evaluation; (2) failed to complete her drug and
    
    alcohol assessment; (3) had five non-random drug screens; (4) completed parenting classes; (5)
    
    had been incarcerated in Texas; (6) had not resolved her probation stemming from her Texas
    
    charges; (7) would be moving into an apartment on August 31, 2012; and (8) was in a custody
    
    case in Texas involving J.G.’s younger brother who lived with his paternal grandmother.
    
    Visitation between J.G. and appellant was prohibited until the attorneys obtained a visitation
    
    recommendation from J.G.’s counselor and the court issued an order detailing how contact
    
    would be made. Appellant was required to pay thirty dollars per week in child support.3 The
    
    court also required DHS to do an Interstate Compact on the Placement of Children home
    
    study of appellant’s Texas home and noted that appellant passed her drug test taken that day.
    
    The goal of the case was reunification.
    
           The court filed an agreed order for supervised visitation on November 14, 2012,
    
    awarding supervised visitation to appellant once per month, on two consecutive days for at
    
    least one hour.4 A second agreed order for supervised visitation was filed on December 20,
    
    2012, awarding supervised visitation to appellant for at least two hours.5
    
           On January 28, 2013, Christine Williams, through counsel, moved to intervene in the
    
    matter and petitioned for permanent custody of J.G., arguing that appellant was an unfit
    
    parent who continually manifested indifference to J.G.’s safety, stability, and well-being. She
    
           3
               Child support payments were to begin on October 5, 2012.
           4
          Visitation was to begin on November 13 and 14, 2012, and was to be supervised by
    DHS or J.G.’s custodian.
           5
           There was no mention of consecutive days as previously agreed to. Visitation was to
    begin on December 21, 2012.
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    alleged that appellant (1) abandoned J.G. at school in February 2012, (2) continually abused
    
    and neglected J.G. throughout his lifetime, (3) had a criminal history, (4) had enrolled J.G.
    
    in nine different schools in two states in the past three years, and (5) recently lost custody of
    
    J.G.’s half brother in Texas.6
    
           In DHS’s January 17, 2013 court report, DHS stated that appellant had been compliant
    
    with her case and acknowledged that appellant had (1) obtained a residence in Arlington,
    
    Texas, (2) been employed since June 2012, (3) completed counseling, (4) been cooperative
    
    with the department and contacted her caseworker regularly, (5) completed parenting classes
    
    in Texas in July 2012, and (6) completed her psychological evaluation on June 20, 2012.
    
    Following a January 18, 2013 permanency planning hearing, while finding appellant in
    
    compliance with the case plan and court orders, the court entered a February 15, 2012 order
    
    granting permanent custody of J.G. to Ms. Williams and closing the case.
    
           This timely appeal followed.
    
    
    
    
           6
            In support of her allegations that appellant has a criminal background, Ms. Williams
    submitted a copy of a sheet detailing a February 7, 2006 DWI charge in Washington County,
    a copy of a Madison County Court Docket for a March 5, 2006 DWI charge, and a printout
    from the Dallas County Criminal Background Search Service showing two undated charges
    attributed to appellant for DWI and public lewdness. In support of her allegation that J.G. had
    attended nine different schools in three years, Ms. Williams submitted a copy of a sheet listing
    the schools she alleged he attended and when. In support of her allegation that appellant lost
    custody, Ms. Williams submitted an Order from Tarrant County, Texas, signed October 9,
    2012, showing that the court awarded joint custody to appellant and the father of J.G.’s half
    brother and awarded physical custody to the father with supervised visitation to appellant; no
    child support was awarded.
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           The burden of proof in dependency-neglect proceedings, including reviews and
    
    permanency-planning hearings, is preponderance of the evidence.7 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.8 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.9 We give due
    
    deference to the superior position of the circuit court to view and judge the credibility of the
    
    witnesses.10 This deference is even greater in cases involving child custody, as a heavier burden
    
    is placed on the 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.11 Moreover,
    
    on de novo review the appellate court will only reverse on grounds properly argued by the
    
    appellant.12
    
    
    
    
           7
          Anderson v. Ark. Dep’t of Human Servs., 
    2011 Ark. App. 522
    , at 4, 
    385 S.W.3d 367
    ,
    369–70 (citing Ark. Code Ann. § 9-27-325(h)(2)(B) (Repl.2009)).
           8
            Thomas v. Ark. Dep’t of Human Servs., 
    2012 Ark. App. 309
    , at 4, ___ S.W.3d ___, ___
    (citing Moiser v. Ark. Dep’t of Human Servs., 
    95 Ark. App. 32
    , 34–35, 
    233 S.W.3d 172
    , 174
    (2006)).
           9
            Ark. Dep’t of Human Servs. v. Mitchell, 
    2012 Ark. App. 240
    , at 4-5, ___ S.W.3d ___,
    – (citing Brewer v. Ark. Dep’t of Human Servs., 
    71 Ark. App. 364
    , 
    43 S.W.3d 196
     (2001)).
           10
                Thomas, supra (citing Chastain v. Chastain, 
    2012 Ark. App. 73
    , at 7, ___ S.W.3d ___).
    
           11
                Id., 2012 Ark. App. at 4-5 (citing Chastain, supra).
           12
            Anderson, 2011 Ark. App. at 4, 385 S.W.3d at 369-70 (citing Country Gentleman, Inc.
    v. Harkey, 
    263 Ark. 580
    , 
    569 S.W.2d 649
     (1978)).
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           Appellant’s first argument on appeal is that there was insufficient evidence that granting
    
    permanent custody to Christine Williams, maternal grandmother to J.G., was in the best
    
    interests of the child. In support of this argument, appellant argues that Ark. Code Ann. § 9-
    
    27-338©) requires that a juvenile be returned to a parent before custody of the minor may
    
    be given to another person. It is well settled that only the specific objections and requests
    
    made at trial will be considered on appeal.13 Arguments not raised below, even constitutional
    
    ones, are waived on appeal.14 Because this argument was not made below, it is not preserved
    
    for appeal.
    
           Even if appellant had made this argument below, she would not have prevailed. Her
    
    interpretation of said statutory provision is incorrect. Arkansas Code Annotated § 9-27-338©)
    
    permits the court, based on the facts of the case, to place the minor with a fit parent, return
    
    the juvenile to the guardian or custodian from whom the juvenile was initially removed at the
    
    permanency planning hearing, or authorize a plan to place custody of the juvenile with a
    
    parent, guardian, or custodian under certain conditions.15 This list is in order of preference,
    
    but it does not require that a child be placed in that order.16 The court was not required to
    
    grant custody to appellant—whether on a trial basis, temporary or permanent basis—before
    
    granting permanent custody to Ms. Williams.
    
    
    
           13
            Lucas v. Jones, 
    2012 Ark. 365
    , at 9, ___ S.W.3d ___, ___ (citing Johnson v. State, 
    303 Ark. 12
    , 
    792 S.W.2d 863
     (1990); Shaw v. State, 
    299 Ark. 474
    , 
    773 S.W.2d 827
     (1989)).
           14
                Id. (citing Tracy v. Dennie, 
    2012 Ark. 281
    , ___ S.W.3d ___).
           15
                Ark. Code Ann. § 9-27-338(c)(1)-(3) (Repl. 2009).
           16
                Ark. Code Ann. § 9-27-338©).
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           In further support of her insufficiency argument, appellant also argues that neither the
    
    caseworker nor the judge provided evidence that appellant was an unfit parent or could not
    
    obtain return of J.G. immediately or within three months. The substantive law on this topic
    
    prefers a parent over a grandparent or other third person, unless the parent is proved to be
    
    incompetent or unfit.17 While there is a preference in custody cases to award a child to its
    
    biological parent, that preference is not absolute.18 Rather, of prime concern, and the
    
    controlling factor, is the best interest of the child.19 The rights of 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.20 The court found appellant
    
    to be unfit in its March 29, 2012 adjudication and disposition order. Appellant did not appeal
    
    this order, nor did she make this fitness argument at the permanency planning hearing, so this
    
    fitness argument is waived.
    
           With regard to her argument that no evidence was provided showing that appellant
    
    could not obtain return of J.G. immediately or within three months, “[t]he burden is on the
    
    parent, guardian, or custodian to demonstrate genuine, sustainable investment in completing
    
    the requirements of the case plan and following the orders of the court in order to authorize
    
           17
              Camp v. McNair, 
    93 Ark. App. 190
    , 198, 21
    7 S.W.3d
    155, 159 (2005) (citing
    Dunham v. Doyle, 
    84 Ark. App. 36
    , 12
    9 S.W.3d
    304 (2003); Schuh v. Roberson, 
    302 Ark. 305
    ,
    
    788 S.W.2d 740
     (1990); Stamps v. Rawlins, 
    297 Ark. 370
    , 
    761 S.W.2d 933
     (1988); Jones v.
    Strauser, 
    266 Ark. 441
    , 
    585 S.W.2d 931
     (1979); Payne v. Jones, 
    242 Ark. 686
    , 
    415 S.W.2d 57
    (1967); Riley v. Vest, 
    235 Ark. 192
    , 
    357 S.W.2d 497
     (1962).
           18
                Id. (citing Dunham, supra).
           19
                Id.
           20
                Id.
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    a plan to return home as the permanency goal.”21 It was appellant’s duty to provide such
    
    evidence. She cannot remain silent on an issue for which she has the burden and then argue
    
    that DHS failed to do her job. Furthermore, appellant did not make this argument below. It
    
    is well settled that the failure to raise a challenge or obtain a ruling below is fatal to the
    
    appellate court’s consideration of an issue on appeal.22
    
           During its ruling at the permanency planning hearing, the court cited J.G.’s preference
    
    to remain with Ms. Williams and his continued trust issues with appellant as its reasons for
    
    granting permanent custody to Ms. Williams. The judge stated, “I can’t return you to your
    
    mom today because I think just putting you there after you’ve had these worries that I think
    
    are well-founded—and I think it’s supported by the record about your mom not being stable
    
    for you.” It went on to state, “she hasn’t made enough progress with your trust and me
    
    placing you with her to place you in her custody.” Furthermore, contrary to appellant’s
    
    assertion that J.G.’s reasons for wanting to stay with Ms. Williams were all materialistic, the
    
    record shows, in J. G.’s letter to the court, that he wished to remain in the custody of Ms.
    
    Williams for a number of non-materialistic reasons. Those reasons included making good
    
    grades in gifted and talented classes at school while handling the responsibilities he has with
    
    
    
    
           21
                Ark. Code Ann. § 9-27-338(c)(2)(A)(iii).
           22
           Anderson, 2011 Ark. App. at 8, 385 S.W.3d at 371 (citing Bryant v. Ark. Dep’t of
    Human Servs., 
    2011 Ark. App. 390
    , 
    383 S.W.3d 901
    ).
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    regard to his horse and dogs, feeling safe, having security, and that he loves his grandparents.23
    
    We cannot say that the court’s ruling was clearly erroneous.
    
           Affirmed.
    
           HARRISON and WYNNE, JJ., agree.
    
           Janet Lawrence, for appellant.
    
           Tabitha B. McNulty, County Legal Operations, for appellant.
    
           Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
    
    
    
    
           23
             In his letter to the court, J.G. wrote that he brushes, feeds, waters, washes and trains
    his horse. He also wrote: “I have the ability to get up in the morning and not have to worry
    about were [sic] I am going to go several times [sic] to not worry about is she (my mom)
    gonna leave me somewere [sic].”
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