dissenting. I decline to agree that it was in J.T.’s best interest to place her with her father. In the drug tests, conducted post-trial by court order, Tim tested positive for cocaine, and Tammy tested negative for any drug. The trial court appears to gloss over this fact, stating that thus far, Tim’s “drug use has not had an adverse impact on [J.T.].” While our court defers to the trial judge on issues of credibility, in my opinion, the trial court’s findings against Tammy in granting Tim’s petition for change of custody pale in comparison to Tim’s positive drug test. I do not think that it is prudent to take a “wait and see” approach until such drug use does adversely impact J.T. The majority is merely “troubled” by Tim’s “apparent” drug use.
At the hearing, Tim twice testified that he did not use drugs, but he then presented a hair sample for drug testing, and the sample tested positive for cocaine. The trial court found that “no evidence has been presented that indicated when [Tim] used cocaine or that would indicate where [J.T.] was at the time that he was under the influence of cocaine.” That is a distinction without a difference in my opinion •— the drug test positively proved that Tim had lied to the trial court about his drug use, and that he had clearly used cocaine since the time J.T. was placed in his custody by default ten months prior to the final hearing. At the very least, Tim failed to provide the trial court a reasonable explanation for this test result, and I believe that the trial court was remiss in failing to reopen the case and question Tim further, in view of his testimony of abstinence from drugs, before entrusting him with his young daughter’s welfare. At the hearing, Tim denied that he was present at Blake Hicks’s house in August 2004 smoking marijuana as recounted by witness Susie Ayres — accordingly, Tim’s positive test for cocaine also brings his opposition to Ms. Ayres’s testimony into question as well. The trial court recounted in its order that Tim had testified that he had not smoked marijuana since November of 2004, which was the month he obtained temporary custody by default. I find it implausible that Tim did not ingest cocaine during the time the trial court had entrusted him with the temporary custody of his minor daughter pending the final hearing.
In Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002), our supreme court affirmed an award of custody of the minor children to the father. In that case, one of the factors the trial court used in determining the issue of custody was that the mother had tested positive for amphetamines and methamphetamine, while the father’s test results were negative.
Overlying my earlier concerns that Tim’s post-hearing, positive cocaine test failed to trigger additional inquiries by the trial court, the record also reflects that Tim has not taken an interest in any of his three children until he became intent upon wresting custody of this, his third child, away from her mother. Tim testified that a son, who is now deceased, was living with Tim’s parents at the time of that child’s accidental death. Tim also testified that he was the biological father of another daughter, whose parentage was speculative because he had never brought a paternity action. Finally, regarding J.T., Tim testified that he did not bother to submit to a paternity test until she was three years old. From his own lips, his suddenly becoming a “responsible custodial parent” is questionable.
This dissenter will not condone giving custody of this child to her father, who not only possessed a poor parental history but also tested positive for the illegal drug cocaine after he testified that he did not use drugs, in opposition to her mother, the child’s custodian for all of the child’s life, who tested negative for any illegal drug use. I am authorized to state that Judge Hart joins me in this dissent.