Jazmin Waldon v. Freddie Youngblood, Arkansas Department of Human Services, and Minor Child , 2023 Ark. App. 353 ( 2023 )

Cite as 2023 Ark. App. 353ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-712
JAZMIN WALDON OPINION DELIVERED AUGUST 30, 2023
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
V. FORT SMITH DISTRICT
[NO. 66FJV-21-125]
FREDDIE YOUNGBLOOD, ARKANSAS
DEPARTMENT OF HUMAN SERVICES, HONORABLE DIANNA HEWITT
AND MINOR CHILD LADD, JUDGE
APPELLEES
AFFIRMED
ROBERT J. GLADWIN, Judge
This is an appeal from the circuit court’s order awarding joint custody to Jazmin
Waldon (“Waldon”), the minor child’s mother, and Freddie Youngblood (“Youngblood”),
the child’s father, after a review hearing that occurred on March 15, 2022. The appellant,
Waldon, argues that the court’s order was erroneous because it failed to require a home
study for Youngblood before awarding him joint custody and that the joint-custodial
arrangement is not in the minor child’s best interest. We affirm.
I. Background Facts
Waldon is the mother of three children, and the custody of only one of those minor
children is at issue in this appeal. On April 2, 2021, the Fort Smith Police Department
(“FSPD”) received a call about two toddlers roaming the neighborhood at night without an
adult or caregiver. At approximately 9:40 p.m., the FSPD located Waldon—the mother of
one of the unattended toddlers—who stated that she had been upstairs getting her hair done
for the Easter holiday. The other reported toddler was the son of Waldon’s sister. Waldon
also informed the FSPD that she has two other minor children who were asleep upstairs.
She informed the police officer that she had last seen her daughter asleep in her bedroom
upstairs. The FSPD arrested Waldon for two counts of first-degree endangerment of a
minor. The Arkansas Department of Human Services (“DHS”) put a seventy-two-hour
emergency hold on all of Waldon’s children because her arrest resulted in no legal caregiver
for the minors. On April 5, 2021, DHS filed a dependency-neglect petition that alleged the
children’s removal from Waldon’s parental care was necessary to protect their health, safety,
and physical well-being from immediate danger and that it was contrary to the welfare of the
children to remain in Waldon’s custody. The minor child that is the subject of this appeal
was placed on a trial home placement with Youngblood—the child’s biological father—who
signed an acknowledgment of paternity in 2011.
On June 21, 2021, the court adjudicated the minor child dependent-neglected due
to Waldon’s parental unfitness and noted that Youngblood did not contribute to the
dependency-neglect. At this time, the goal was reunification with a concurrent goal of
guardianship; custody of the child remained with DHS. This order was not appealed. The
circuit court then scheduled a review hearing for August 10.
After the review hearing, the court entered an order declaring that the children
should remain in the custody of DHS and that the goal of the case remained reunification
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with a concurrent goal of custody with a fit parent. Another review hearing was set for
November 30, with the court ordering Waldon to resolve her criminal charges as soon as
possible. The record reflects that the criminal charges stemming from the night the children
were removed from Waldon’s custody were resolved on the same day that this particular
review hearing was held.
Waldon and Youngblood moved to continue the next review hearing, declaring that
they both needed additional time to prepare testimony and witnesses regarding the
remaining custody and visitation issues. The court continued the hearing until January 11,
2022. Youngblood, however, filed for another continuance because his counsel anticipated
that the hearing would require more time than the court’s docket allowed on such date;
therefore, the final hearing was rescheduled for March 15.
Prior to the final hearing, Waldon, Youngblood, and the attorney ad litem for the
minor child filed pretrial briefs outlining their respective positions. The attorney ad litem
argued that both parents were considered “fit” under the permanency statute; thus, both
were legally entitled to be considered for custody. The ad litem, however, concluded that
“on balance as between two fit parents in this dependency-neglect matter, the context favors
a return of [minor child’s] custody to Waldon over Youngblood, who has never had custody
at any point in [minor child’s] life.” Youngblood asserted in his pretrial brief that custody
of the minor should be placed with him and visitation awarded to Waldon. Waldon’s
pretrial brief was not filed with the circuit court; therefore, it is not part of our record on
appeal.
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The final hearing was held on March 15. At the beginning of the hearing, counsel
for DHS clarified for the court that while its initial recommendation had been for a return
of minor child to Waldon, the department’s current position was that either parent was fit
for custody. The court noted that Youngblood had requested joint custody, and the final
hearing was to determine the best interest of the child. Youngblood took the stand and called
the minor child’s teacher; Waldon called the minor child to testify and then rested her case
after testifying herself.
Youngblood testified that while he was asking for custody of the child, he
acknowledged that Arkansas considers joint custody to be a “starting point” when it comes
to minor children. Therefore, he agreed that he was asking for joint custody—in the
alternative—with him as primary custodian. When asked about a joint-custody arrangement,
Waldon testified that while they “coparent fine,” she did not believe that joint custody was
a stable situation emotionally for the child. However, she was agreeable to Youngblood
having liberal visitation. The minor child did not offer any opinion about where he
preferred to live and stated that there was nothing that he did not like at either of his parent’s
homes.
The attorney ad litem provided his recommendation to the court regarding what he
believed to be in the child’s best interest. He stated that the minor child was attached to
both his mother and father and their respective families; that the child had lived exclusively
with Waldon until the child was removed from her custody; that the child, moving forward,
needs to have as much contact with both parents as possible; that he believed it was in the
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child’s best interest to be returned to Waldon; and that his opinion was consistent with the
minor child’s wishes.
At the end of the hearing, the court took the matter under advisement and later
entered a review and closing order on August 12. The circuit court found that it was in the
best interest of the minor child to be in the joint legal and physical custody of both Waldon
and Youngblood. Additionally, it ordered the parents to work together as joint custodial
parents and to have equal—or as close to equal—time with the child as possible. The court
further ordered that both parents shall share the right to make important decisions for the
child and attached to the order a standard order regarding child visitation and related
matters. It also made allowances for open access to educational records and events by both
parents and for yearly rotational claims of the child as a tax dependent. Finally, the court
held that the DHS case was closed. Waldon filed a timely appeal of the order; this appeal
followed.
II. Standard of Review
Although this court reviews child-custody decisions de novo on the record, the
findings of the circuit court will not be disturbed unless it is shown that they are clearly
against the preponderance of the evidence. Durham v. Durham, 82 Ark. App. 562, 120
S.W.3d 129 (2003). A finding is clearly against the preponderance of the evidence 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. Since the question of the preponderance of
the evidence turns largely on the credibility of the witnesses, the appellate court gives special
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deference to the superior position of the circuit court to evaluate and judge the credibility of
the witnesses in child-custody cases. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256(2003). We have often stated that we know of no cases in which the superior position, ability,
and opportunity of the circuit court to observe the parties carry as great a weight as in those
involving children. Id.III. Points on Appeal
Appellant argues (1) that the circuit court erred in modifying custody without a
required home study as required by the juvenile code; and (2) that there was insufficient
evidence supporting the circuit court’s conclusion that joint custody was in the best interest
of the minor child; thus, the order should be reversed because it was uninstructive—forcing
her and Youngblood to figure out how to evenly split parenting time under acrimonious
circumstances.
IV. Discussion
A. Home Study
First, Waldon argues the circuit court erred in modifying custody without a required
home study; thus, the order granting Youngblood joint custody of the minor child must be
reversed. In response, both Youngblood and DHS argue that because Waldon failed to raise
and secure a ruling from the circuit court on this issue, she is precluded from asserting this
argument as a basis for reversal on appeal. We agree. The record reflects Waldon never
argued that a home study was required of Youngblood at any time throughout the
proceeding. This court has consistently held that a party’s failure to present an argument
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before the circuit court cannot form the basis for reversal. Thus, Waldon failed to preserve
this argument for appeal and waived any argument that a home study was required of
Youngblood prior to the final custody hearing.
B. Joint-Custody Arrangement
Furthermore, Waldon argues that the circuit court’s order must be reversed because
there was not sufficient evidence that joint custody was in the minor child’s best interest.
Specifically, she contends that the court’s order was “woefully uninstructive,” thereby forcing
her and Youngblood to evenly split parenting time despite “undisputed evidence” that
Youngblood is incapable of effective communication. Finally, she argues that the circuit
court’s order erred by failing to specifically address what impact the joint-custody
arrangement would have on the minor child as well as how the part-time separation from his
younger siblings would affect the child.
Waldon insists on appeal that the circuit court’s joint-custody finding was clearly
erroneous because of the parents’ “historical inability to co-parent” and Youngblood’s prior
history (or lack thereof) with the child. Additionally, Waldon contends that the arrangement
has left the minor child in an unstable and exhausting situation and cites a multitude of facts
to demonstrate that “there is a much more systemic problem that prohibits effective
coparenting.” The level of animosity outlined in Waldon’s appeal, however, is simply not
reflected in either the record or her testimony before the circuit court.
Specifically, Waldon testified that she and Youngblood “coparent fine” when asked
about the option of joint custody. While the record clearly reflects that these parents have
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a certain amount of dislike for one another and communication has been difficult in the
past, it does not rise to the level of toxic coparenting that Waldon describes on appeal. In
fact, Waldon testified that she was agreeable to Youngblood having visitation every weekend
and all of the holidays, and she would do her best to fulfill whatever custody order the court
entered on behalf of her child. Simply put, there was no indication from either parent that
he or she was unwilling to work with the other or fundamentally incapable of doing so. Both
parties were clear that all that was left to be determined was custody, and the court began by
reiterating that the purpose of the hearing was Youngblood’s motion for custody. If Waldon
believed that a joint-custody arrangement was impossible due to her and Youngblood’s “long
standing and contentious” relationship, it was imperative for her to have expressed this to
the court, and she did not.
The primary consideration in child-custody cases is the welfare and best interest of
the children involved; all other considerations are secondary. Coleman v. Ark. Dep’t of Hum.
Servs., 2010 Ark. App. 851, 379 S.W.3d 778. The evidence established that Youngblood was
able to provide the child a stable home life during the entire dependency-neglect process,
which lasted nearly a year; that Youngblood did not contribute to the dependency-neglect;
that the child enjoyed living in both homes; that DHS deemed both parents fit; that the
attorney ad litem declared that the child was attached to both of his parents and his half
siblings on his father’s and mother’s sides; that the attorney ad litem stated that he believed
it was in the child’s best interest to have “as much contact with both parents as can be
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possible”; and that the attorney ad litem believed both Waldon and Youngblood were fit
parents.
While Waldon is correct that the attorney ad litem proclaimed it was in the child’s
best interest to remain with Waldon, she is essentially asking this court to reweigh the
evidence. It is well established that we will not act as a super fact-finder, and furthermore, it
is not reversible error for the circuit court to weigh the evidence differently than the appellant
asks for it to be weighed. Bentley v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 374, 554 S.W.3d
285. In awarding joint custody, the circuit court ordered the parents to work together as
joint custodial parents. The court’s determination that Waldon and Youngblood could work
together to establish a joint-custody arrangement is supported by the record; thus, we find
no clear error in the circuit court’s order awarding joint custody.
Finally, Waldon’s argument that the circuit court’s order lacked instruction as to how
she and Youngblood shall uphold the joint-custody arrangement is argued for the first time
on appeal. If Waldon required clarification on the matter, it was her obligation to request
it from the circuit court, and she did not do so. The record is devoid of any motions for
clarification, for reconsideration, or to vacate the order by Waldon. The notice of appeal is
all that followed the final order. The same goes for Waldon’s argument that the court failed
to address how joint custody would affect the child, who would now be separated part time
from his maternal younger siblings. See Minchew v. Ark. Dep’t of Hum. Servs., 2023 Ark. App.
95, 660 S.W.3d 909 (declining to consider appellant’s sibling-separation argument because
she failed to preserve it for appeal). Moreover, Arkansas appellate courts have consistently
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held that sibling-separation arguments will not support reversal absent some evidence of a
genuine sibling bond, which was not demonstrated in the record here. E.g., Martin v. Ark.
Dep’t of Hum. Servs., 2020 Ark. App. 192, at 6, 596 S.W.3d 98, 102. If anything, the record
demonstrates that the minor child has a genuine connection with siblings on both sides of
his family; thus, joint custody will allow him equal time with all his siblings. Because both
arguments were not preserved on appeal, we decline to reach their merits.
V. Conclusion
Giving deference to the superior position of the circuit court in child-custody cases,
it cannot be said with distinct and firm conviction that a mistake has been made by the
circuit court. Thus, we affirm the circuit court’s award of joint custody.
Affirmed.
BARRETT and HIXSON, JJ., agree.
Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Office of Chief Counsel, for separate appellee Arkansas Department
of Human Services.
James & Streit, by: Jonathan R. Streit, for separate appellee Freddie Youngblood.
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