Cite as 2014 Ark. App. 449
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-6
Opinion Delivered: September 3, 2014
GREGORY WHITT APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-13-404]
V.
HONORABLE STACEY
ARKANSAS DEPARTMENT OF ZIMMERMAN, JUDGE
HUMAN SERVICES and MINOR
CHILDREN
APPELLEES REVERSED AND REMANDED
RHONDA K. WOOD, Judge
Gregory Whitt appeals from the circuit court’s order granting Jennifer Shirley
permanent custody of their three children at a dependency-neglect review hearing and
closing the case. We hold that the court erred when it found that granting Jennifer
permanent custody was in the children’s best interest. We accordingly reverse and remand.
In June 2013, the Department of Human Services (DHS) exercised a 72-hour hold
on Gregory Whitt’s three children after he had been arrested for domestic violence, public
intoxication, and endangering the welfare of a minor. The children’s mother, Jennifer
Shirley, was living in Florida at the time. Gregory had obtained custody of the three
children by an August 2012 agreed order.
The children were placed in foster care, and the circuit court later adjudicated the
children dependent-neglected. In its adjudication order, the court made the following
findings regarding the night the children entered DHS’s custody: Gregory and his
Cite as 2014 Ark. App. 449
girlfriend were drunk when the police arrived at their house; Gregory placed one of the
children between him and the door to prevent the police from entering; and his girlfriend
had a bloody lip.
At the hearing, the court ordered the children to remain in foster care. A no-
contact order was already in place between Gregory and his children. The court ordered
Gregory to undergo counseling and be drug tested. Jennifer, appearing at the hearing via
telephone, was ordered to submit to a hair-follicle test, undergo a psychological
evaluation, and be present at the next review hearing.
The court held the six-month-review hearing in October 2013. Both Gregory and
Jennifer appeared; neither was represented by counsel. The first witness was Ritchie
McFarland, the family-service worker. He testified that Gregory had completed
counseling but had failed a drug test. McFarland recommended that the children stay in
foster care. He had concerns regarding Gregory, who had said he knew where the foster
parents lived and “would get his children back the legal or the illegal way.” Gregory made
desultory attempts to cross-examine McFarland. And, in what would become a recurring
motif, the court admonished Gregory to stay on point and ask relevant questions.
Gregory and Jennifer also testified, and the following facts were presented to the
court. Jennifer lived in Florida with Gregory’s brother, David Whitt. The two were not,
however, in a relationship. Further, both the maternal and paternal grandmothers lived in
Florida. Jennifer did not have a job and instead stayed home to care for her and Gregory’s
youngest child. (Per the August 2012 agreed order, Gregory had custody of the three
oldest children, while Jennifer had custody of the fourth and youngest child.) Last, a
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Florida court had placed David Whitt on probation for two counts of child neglect a year
earlier.
After the testimony, both DHS and the ad litem recommended that the children
stay in foster care. Despite these recommendations, the court awarded permanent custody
of the children to Jennifer and closed the dependency-neglect case. In its ruling, the court
noted that Gregory was mentally unstable, posed an emotional threat to his children, 1 and
was unfit. It further found that Jennifer had passed a drug test and that her visitation had
gone well. It ruled that giving Jennifer custody was in the children’s best interest. Finally,
the court ruled that Gregory could have visitation once the no-contact order was lifted
but added the requirement that his brother, David, supervise it.
Gregory appeals the court’s order granting Jennifer permanent custody and closing
the dependency-neglect case. He makes two separate arguments: (1) placing the children
in Jennifer’s custody is contrary to their best interest and (2) the court lacked the authority
to close the case at a review hearing. DHS and the ad litem agree and join with Gregory’s
first point. They disagree, however, with his second point. They contend that the issue is
not preserved, and we agree. The issue regarding the court’s authority to close the case at
a review hearing is not preserved because it has been raised for the first time on appeal. See
Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 53, 431 S.W.3d 303. But we do agree with
all parties that the court’s custody decision is clearly erroneous and reverse and remand for
further proceedings.
1The
court was particularly concerned with Greg’s testimony that “[m]y boys and I
run on one wave length. . . . We are each other’s air we breathe.”
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This court reviews findings in dependency-neglect proceedings de novo, but we
will not reverse the circuit court’s findings unless they are clearly erroneous. Porter v. Ark.
Dep’t of Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008). 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 made.
Seago v. Ark. Dep’t of Human Servs., 2011 Ark. 184, 380 S.W.3d 894. We give great
deference to the circuit court as it is in a far superior position to judge the credibility of
the witnesses. Krantz v. Ark. Dep’t of Human Servs., 2011 Ark. 185, 380 S.W.3d 927.
The circuit court granted full custody of the three children to Jennifer despite
numerous issues with her living situation. First, and most troublesome, Jennifer was
currently living with an individual recently placed on probation for child neglect—David,
Gregory’s brother. The court did not inquire into the factual basis underlying David’s
court case. In fact, the court placed David in a position of prominence in the children’s
lives, allowing him to supervise Gregory’s visitation. Second, Jennifer had yet to complete
the court-ordered psychological evaluation. Third, Jennifer was not working, and there
was no testimony that she would be capable of supporting all four children; indeed, there
was no inquiry into the circumstances surrounding Gregory and Jennifer’s August 2012
agreed order that gave Gregory full custody over the three oldest children. Finally, there
was no specific testimony regarding Jennifer’s living situation: for example, no questions
were asked whether there was adequate living space for the children, whether the home
was environmentally appropriate, or how she would financially provide for them.
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Based on our review of the record, we are convinced that the circuit court erred
when it found that it was in the children’s best interest to grant Jennifer permanent
custody. Given the truncated nature of the proceedings at this review hearing, there
simply was not enough information in front of the court to make this decision. Rather,
the facts in front of the court suggested the need for further investigation into the
appropriateness of both parents. None of the parties was prepared to litigate permanent
custody at this hearing. Neither mother nor father had counsel; moreover, it was evident
that DHS and the ad litem were not aware permanent custody was an option at the
hearing prior to the court’s pronouncement at the end. Had they known, perhaps they
could have elicited more facts concerning Jennifer’s living situation. Because the court’s
decision is clearly erroneous, we reverse the order granting Jennifer custody and remand
for further proceedings.
Reversed and remanded.
HARRISON and GRUBER, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor child.
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