Sisemore v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 187

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-990

Opinion Delivered: March 30, 2016

SARHA JANE SISEMORE AND JARID APPEAL FROM THE MADISON
SISEMORE COUNTY CIRCUIT COURT
APPELLANTS [NO. JV-14-70-3 ]

V.
HONORABLE STACEY ZIMMERMAN,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILD
APPELLEES
AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Sarha Sisemore 1 appeals the order of the Madison County Circuit Court

that gave permanent custody of her daughter, H.S. (born 05-18-14), to Sonia and Miles

Yates and closed the dependency-neglect case. 2 Appellant argues that the court erred by

awarding the Yateses permanent custody of H.S. because (1) appellant had made significant

and measureable progress toward remedying issues that caused the removal of H.S., and the

Department of Human Services (DHS), Court Appointed Special Advocate (CASA), and

the attorney ad litem recommended an additional three months to transition H.S. into

1
Jarid Sisemore’s motion to dismiss his appeal was granted before this case was
submitted.
2
Sonia Yates is appellant’s cousin.
Cite as 2016 Ark. App. 187

appellant’s home pursuant to Arkansas Code Annotated § 9-27-338(c)(3); 3 and (2) because

permanent custody with the Yateses was not in H.S.’s best interest where there were serious

questions about the care H.S. was receiving in the Yateses’ home and where H.S. would be

separated from a “full-blooded sibling.” We affirm.

DHS took emergency custody of H.S. on October 26, 2014, after she suffered a skull

fracture and retinal hemorrhages while in Jarid’s custody. On October 29, 2014, DHS filed

a petition for emergency custody and dependency-neglect against appellant and Jarid

alleging that H.S. was dependent-neglected as a result of parental unfitness and neglect. 4 An

ex parte order placing H.S. in DHS custody was granted and filed on October 29, 2014. A

probable-cause order was filed on October 31, 2014, finding that the emergency conditions

that had necessitated removal of H.S. continued; H.S. should remain in DHS’s custody; and

it was contrary to H.S.’s welfare to be returned to her parents. DHS was ordered to develop

a case plan and appellant was ordered to do a number of things, including (1) call Toni

Johnson weekly, (2) not use illegal drugs/alcohol, (3) submit to random drug screens as

requested by DHS, (4) obtain and maintain stable housing and employment adequate

enough for appellant and H.S., (5) maintain a clean, safe home for herself and H.S., (6)

demonstrate ability to protect H.S. and keep her safe from harm, and (7) follow court orders.

The order also allowed certain relatives to sit with H.S. at the hospital if the hospital staff

determined that H.S. was well enough for visitors.

3
(Repl. 2015).
4
The petition also named H.S.’s half-brother and his mother, but they are not parties
to this appeal.

2
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The adjudication hearing took place on December 5, 2014. Following the hearing,

an order was filed adjudicating H.S. dependent-neglected as a result of abuse, neglect, and

parental unfitness. The court found that H.S. was subjected to aggravating circumstances

due to the severity of her head injuries. The goal of the case was set for reunification, with

a concurrent goal of relative placement. H.S. was placed in the custody of Sonia Yates, and

appellant was granted supervised visitation for two hours a week. The court found that

appellant had not corrected the conditions which caused removal and had not made

substantial progress so that reunification could occur within a reasonable period of time

consistent with H.S.’s developmental needs. The court ordered appellant to (1) have a

psychological evaluation; (2) participate in individual counseling; and (3) complete thirty

hours of infant-parenting class before March 1, 2015, and demonstrate improved,

appropriate parenting after completion of the classes and provide proof of completion to her

DHS caseworker. The prior orders of the court remained in effect. The court also ordered

DHS to make all referrals within ten business days, to provide appellant with transportation

if needed, to do a home study on appellant and Jarid when they obtained new housing, and

to pay for any family services ordered.

A review order was filed on April 3, 2015, finding that a return to appellant’s custody

was contrary to H.S.’s welfare. The court found that H.S. should remain in Sonia’s custody.

The court stated that appellant needed to address her mental-health issues through more

counseling and ordered her to participate in another round of individual counseling and

twelve more hours of parenting classes. The goal of the case continued to be reunification

with a concurrent goal of relative placement. The order reflects that appellant had complied

3
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with some of the court orders and the case plan and that she had made some progress toward

alleviating or mitigating the cause of H.S.’s removal from the home. However, the court

noted that appellant had not maintained stable housing and employment. Appellant’s

visitation was extended to two more hours on Sunday, with her mother, Denise Gray,

supervising it. However, the court stated that any contact between Carlous Gray, appellant’s

father, and H.S. had to be supervised. 5

On May 5, 2015, the attorney ad litem, Diane Warren, filed a motion to suspend

appellant’s supervised Sunday visitations with H.S. In the motion, Warren alleged that H.S.

returned from a Sunday visit with a physical mark on her thigh and that appellant’s

explanation that H.S. received the injury from crawling on the floor was inconsistent with

the marks. The court entered an order on May 8, 2015, suspending appellant’s Sunday

visitations. Appellant filed a response to the motion to suspend visitation and a motion to

set aside the order suspending visitation on May 22, 2015. She included pictures of H.S.

and of the Yateses’ bathtub to support her contention that the allegations of abuse were

manufactured by the Yateses and that H.S. should be removed from the Yateses’ custody.

The court entered an order on May 22, 2015, reinstating appellant’s supervised visitation;

however, the day was changed from Sunday to Friday.

At the permanency-planning hearing (PPH), DHS, CASA, and the attorney ad litem

recommended that appellant be given an additional three months to transition H.S. into

5
At some point, a home study of the Grays was conducted. It was admitted as an
exhibit by appellant. The study reflected that there was a past true finding of child
maltreatment on Carlous against appellant in 2006. The Gray residence was approved for
placement under the condition that Carlous did not live in the same house.

4
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appellant’s home. Antoinette Johnson, the DHS family service worker, testified that she

believed appellant had made significant and measurable progress toward the case-plan goals

and that appellant was working diligently toward reunification. She opined that appellant’s

case should be extended to a fifteen-month PPH. She also recommended that appellant’s

visitation with H.S. be extended and unsupervised so that H.S. could slowly transition into

appellant’s home. However, Johnson said that H.S. was “highly bonded” with the Yateses

and should be allowed to see them regularly. Johnson admitted that there were a few

concerns about appellant: (1) she was still pretty dependent on her family; (2) she was not

working, but she had just had a baby; (3) she did not have a driver’s license. Johnson stated

that she would like to see appellant move toward some more independence.

On cross-examination, Johnson stated that appellant’s housing was “appropriate for

now.” She said that appellant needed additional time to gain the independence needed to

take care of two small children, one of whom had special needs. She noted that H.S. had

to go to therapies three times a week and that appellant was dependent on Denise for

transportation. She conceded that appellant had nothing to do with the injuries sustained

by H.S. at the hands of Jarid. She stated H.S. was not returned to appellant once she

separated from Jarid because DHS wanted to see a period of stability on the part of appellant.

Johnson testified that appellant had not called weekly, as ordered. She also stated that she

had no idea if appellant had been on medications and that she was unaware of any

medications appellant was taking. Johnson said that appellant’s housing was stable but that

it was not independent. According to Johnson, DHS would prefer independent housing.

5
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She said that appellant had not had stable employment, but that appellant was pregnant

throughout the case.

Johnson also said that DHS had some trouble with appellant being able to

demonstrate an ability to protect H.S. because there had been some unexplained injuries to

H.S.: (1) a handprint on H.S.’s leg, which led to supervised visitations by Denise being

stopped; 6 (2) pictures reflecting red marks on H.S.’s back on a couple occasions; (3) a busted

lip (broken skin on the lip) and red ear. According to Johnson, these were all injuries

reported by Sonia after H.S. returned from visits with appellant. Johnson said that she asked

appellant about the injuries but appellant did not know how they happened. She testified

that Sonia was currently taking H.S. to therapy three times a week, and that appellant did

not participate in those therapies. However, she stated that she would not object to

appellant being able to attend the therapy sessions.

On recross-examination, Johnson said that she was unaware that appellant had taken

pictures of H.S. on the day Sonia reported the busted lip, and that the pictures showed no

injury.

Appellant testified that she lived in an apartment attached to her parents’ home with

her one-month old daughter. She stated that DHS had not expressed any concerns about

her ability or the manner in which she cared for her newborn and/or H.S. She testified

that she had not contacted her doctor about her medications because she had only recently

gotten back on Medicaid. She stated that she was unemployed at the time, but that she had

not been cleared by her doctor to return to work. She said that her parents were financially

6
There was a true finding of abuse; however, the offender was unknown.

6
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supporting her at the time. Appellant testified that she took pictures of H.S. fifteen minutes

before returning her to Sonia, and that there were no injuries to H.S. at that time or when

Sonia took H.S. out of the car. She stated that she also had concerns about H.S.’s

unexplained injuries. She testified that in July, she noticed bite marks on H.S. during a visit

at DHS, but was not allowed to take pictures of the marks with her phone. She stated that

Johnson told her that H.S. had gotten mad and bitten herself. Appellant testified that she

was in the process of divorcing Jarid and that she had not had any contact with him since

their last separation in April. She stated that she was working on getting her driver’s license.

She opined that H.S. should be returned to her custody immediately. However, she stated

that if H.S. was not returned to her that day, she would not oppose a slow transition into

the home. She stated that her living arrangements were safe and appropriate for H.S. to

return to her and that she wanted to remain where she was living. Appellant agreed that

she should be given unsupervised visitation with H.S. if H.S. was not returned to her at the

end of the hearing.

On cross-examination, appellant admitted that she had worked several jobs and lived

in several different places since the beginning of the case. However, she stated that she had

not lived anywhere but her parents’ house since April. She also stated that there had not

been a time when she lived alone and that she had not worked at any job longer than six

months. Appellant said that she had a lot of anger toward her family and that she took

anger-management classes to help her resolve those issues. She testified that she had grown

up in a mentally abusive family environment and thought that anger-management classes

would also help her deal with that. She stated that she took pictures of H.S. during visitation

7
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in order to protect herself from being accused of injuring H.S. Appellant said that she would

like to attend therapies with H.S. and that Denise would provide her with transportation.

She also stated that if H.S. was returned to her custody, Denise would help ensure that H.S.

made all of her appointments.

On redirect, appellant stated that she had some concerns about H.S.’s chronic diaper

rash. She said that she did not understand how it would clear up and then get worse. She

testified that she did not do anything to cause the diaper rash.

Upon questioning by the court, appellant stated that she had not contacted her doctor

for medication because she had only recently received her Medicaid after it had been

canceled. She said that she learned she was pregnant after H.S.’s injury, so she had applied

for Medicaid due to her pregnancy. She opined that she probably went four months without

Medicaid because she had not kept up with it and it had expired. She stated that she

understood that H.S.’s therapies were dependent upon Medicaid and that if she did not keep

it active, H.S. would not be able to continue therapy. Appellant stated that she had been

prescribed Lexapro but that she had to discontinue it while she was pregnant. She said that

she needed to make a doctor’s appointment to restart it. Appellant admitted that April was

not the first time she and Jarid had separated.

Sonia testified that she was currently caring for H.S. She stated that H.S. attended

therapy three times a week and that she would not object to taking appellant to some of

those therapies. She said that H.S. was doing very well although she had some delays. She

stated that H.S. needed additional tests and evaluations. Sonia stated that she had some

concerns about H.S.’s diaper rash, which she said started while H.S. was attending the

8
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Elizabeth Richard Center. She said that H.S. had recently been seen by the doctor for the

diaper rash. She stated that she would almost get the diaper rash cleared up, but that H.S.

would return from visitation with appellant with diarrhea and she would have blisters by

Monday. Sonia testified that H.S. returned from one visit with appellant with a busted lip

that was not visible from the outside. She stated that she put “a little bit of chapstick on it”

and contacted appellant. She said that appellant denied knowing about the lip injury and

insisted that it did not happen at her house. Sonia stated that she could continue to have

H.S. at her home if that was the court’s order.

Upon questioning by the court, Sonia stated that H.S. had been with her since

December 2014. She testified that H.S. was on ARKids, which Sonia got restarted under

her name after it had lapsed. She said that H.S. and S.S. 7 would do pretty well together

when S.S. came with appellant.

Denise testified that appellant lived in an add-on attachment to Denise’s house. She

stated that the diaper rash had been an ongoing concern since H.S. was placed with Sonia.

She said that Sonia’s explanations for the rash had continued to change. Denise testified

that she had never seen a diaper rash like the one H.S. had in terms of the length of time.

She stated that she was afraid the rash would leave scarring on H.S. She denied that she and

appellant were responsible for H.S.’s diaper rash. She testified that there had been maybe

two weeks since H.S. was placed with Sonia that H.S. did not have a “full-blown diaper

rash.” She stated that the diaper rash was so severe that it would bleed. She said that they

had begun taking pictures of the diaper rash to prove that H.S. had the rash when they

7
Appellant’s daughter born in July 2015.

9
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picked her up for visitation. Denise testified that she and appellant had complained to DHS

about the diaper rash at least five or six times. Denise denied that H.S. had a busted lip

when they returned her to Sonia following visitation. However, she stated that she was

“very concerned” about the unexplained injuries to H.S. She testified that she and appellant

had begun taking pictures of H.S. during visitation in order to protect themselves against

claims of abuse.

Denise stated that appellant had a safe and appropriate place for H.S. and that

appellant was ready for H.S. to live with her full time. She admitted that appellant would

need some help, but stated that she was willing to provide appellant with that help. She

also stated that she and Carlous could continue to support appellant financially until appellant

was able to return to work or go back to school. She testified that they added on to their

home so that they could provide appellant with the help she needed. Denise stated that

H.S. should be returned to appellant soon so that appellant, H.S., and S.S. could get adjusted.

She opined that “going back and forth with visitation [was] disruptive.”

On cross-examination, Denise stated that she did not believe that H.S. was being

cared for adequately in the Yateses’ household. She said that even if the court decided not

to return H.S. to appellant at the conclusion of the hearing, H.S. should be removed from

the Yateses’ home and placed somewhere else. She testified that she had a flexible work

schedule and would be able to transport appellant and H.S. to the therapies.

On redirect, Denise testified that she tried to report her concerns about Sonia’s care

of H.S. to the “hotline,” but was told that a report would have to be made to DHS since

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there was already an open case. She stated that she was willing and able to take custody of

H.S. if the court did not return H.S. to appellant.

Upon examination by the court, Denise testified that she and appellant “had a falling

out” at the beginning of this case because she was upset with appellant for staying with Jarid.

However, she stated that “it got patched up,” and appellant moved back home with them.

Denise admitted that appellant had left Jarid more than once and had gotten back with him.

She stated that appellant was in the process of filing for a divorce and that appellant had not

had any contact with Jarid.

In the PPH order filed on September 18, 2015, the court changed the goal of the

case to permanent custody with the Yateses and closed the case. The court found that

appellant was not a fit parent, had not complied with the case plan and court orders, and

was not making significant and measureable progress toward achieving the case goal of

reunification. More specifically, the court found that appellant had not (1) maintained stable

housing or employment (multiple moves and changed jobs frequently), (2) obtained a

driver’s license, (3) maintained weekly contact with DHS, or (4) taken her mental-health

medications as prescribed (allowed Medicaid to lapse). The court further found that

appellant had demonstrated continued instability in her relationship with Jarid and had failed

to demonstrate an ability to protect H.S. and keep her safe from harm. The court noted

that appellant had made some progress but that it was not enough to continue reunification

as the goal of the case. It found that it was in H.S.’s best interest to be placed in the

permanent custody of the Yateses because she had special needs and required stability and

permanency. The court granted appellant four hours of weekly supervised visitation and

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permitted her to attend therapies with H.S. Appellant filed a timely notice of appeal, and

this appeal followed.

In dependency-neglect proceedings, the standard of review on appeal is de novo,

although we do not reverse unless the trial 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 trial court to view and

judge the credibility of the witnesses. 10 This deference to the trial court is even greater in

cases involving child custody, as a heavier burden is placed on the trial 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

On appeal, appellant argues that the court erred in placing H.S. in the permanent

custody of the Yateses because she had made significant and measureable progress towards

remedying issues that caused the removal of H.S., and DHS, CASA, and the attorney ad

litem recommended an additional three months to transition H.S. into appellant’s home

pursuant to Arkansas Code Annotated § 9-27-338(c)(3). 12 She contends that she completed

8
Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 471, 449 S.W.3d 283.
9
Id.
10
Mosher v. Ark. Dep’t of Human Servs., 2015 Ark. App. 111, 455 S.W.3d 367.
11
Callison v. Ark. Dep’t of Human Servs., 2014 Ark. App. 592, 446 S.W.3d 210.
12
Allows a court to authorize a plan to place custody of the juvenile with a parent if
the court finds that the parent is complying with the established case plan and orders of the
court, making significant measurable progress toward achieving the goals established in the

12
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all of her counseling and that she even voluntarily sought counseling for her anger issues.

She acknowledges that she had “several jobs at the beginning of the case,” but points out

that she was pregnant throughout the case and had just given birth a month before the PPH.

Appellant argues that she proved that she could provide financially for her children by

providing for S.S., without a job, with help from her parents. She also contends that she

obtained safe and stable housing, although it was not independent. Essentially, what

appellant is asking this court to do is to reweigh the evidence in her favor. However, a de

novo review of the record reveals that the court’s findings are not clearly erroneous.

Next, appellant argues that the court erred because permanent custody with the

Yateses was not in H.S.’s best interest where there were serious questions about the care

H.S. was receiving in the Yateses’ home, and where H.S. would be separated from a full-

blood sibling. The court heard testimony concerning the unexplained injuries to H.S. and

the chronic diaper rash. At the conclusion of the hearing, the court found that it was in

H.S.’s best interest to remain with the Yateses so that she could obtain permanency and

stability. Giving due regard to the court’s opportunity to judge the credibility of the

witnesses, we cannot say that the court erred in awarding permanent custody of H.S. to the

Yateses. We note that the sibling argument was not raised below and is not preserved for

our review. 13

case plan and diligently working toward reunification or placement in the home of the
parent.
13
See Johnson v. Ark. Dep’t of Human Servs., 2012 Ark. App. 537 (holding that the
failure to raise issues or to obtain rulings at the trial level precludes appellate court
consideration of the issue on appeal).

13
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Affirmed.

VIRDEN and HIXSON, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Jerald A. Sharum, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.