Stowell v. Arkansas Department of Human Services

Cite as 2019 Ark. App. 403
Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS
Perry
Date: 2022.07.26 13:40:09 DIVISION II
-05'00' No. CV-19-381
Adobe Acrobat version:
2022.001.20169
Opinion Delivered: September 25, 2019
SUMER STOWELL
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
V. SMITH DISTRICT
[NO. 66FJV-16-374]

ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE ANNIE POWELL
CHILDREN HENDRICKS, JUDGE
APPELLEES
AFFIRMED

RAYMOND R. ABRAMSON, Judge

Sumer Stowell appeals the Sebastian County Circuit Court order permanently

placing her children with their father, Curley Holden. On appeal, Stowell argues that the

circuit court erred by finding that the placement was in the children’s best interest. We

affirm.

On August 26, 2016, the Arkansas Department of Human Services (DHS) filed a

petition for dependency-neglect concerning C.H.1 and C.H.2. The petition listed Stowell

as the mother and Holden as the legal father, and it noted that the children resided with

Stowell. In the affidavit attached to the petition, DHS alleged that (1) Stowell’s stepfather

had sexually abused the children in January 2016 and (2) Stowell’s son from another

relationship, J.O., had sexually abused the children in January 2016 and again in August
2016. DHS proposed a safety plan that would allow the children to remain in Stowell’s

custody.

Also on August 26, the ad litem filed a petition for emergency custody and

dependency-neglect and a motion for no reasonable efforts. The ad litem alleged that

removal of the children from Stowell’s custody was necessary to protect their health, safety,

and physical well-being. The ad litem further alleged that Stowell had tested positive for

methamphetamine and THC on or about August 17, 2016. The ad litem requested that the

court find that DHS had failed to provide reasonable efforts to protect the children and to

prevent the need for their removal. The court entered an ex parte order of emergency

custody but reserved a ruling on the no-reasonable-efforts issue.

The court held a probable-cause hearing on August 31, 2016, and it entered an order

on October 25. The court found probable cause for the emergency custody and that DHS

had made reasonable efforts to prevent the removal of the children.

On October 31, the court held an adjudication hearing and adjudicated the children

dependent-neglected on the bases of parental unfitness, substance abuse, and sexual abuse.

The court found that both Stowell and Holden were offenders with respect to the finding

of parental unfitness. The court noted that Holden previously had a true finding for physical

abuse of his nephew in his custody and that the child was in DHS custody as a result of the

finding.

The court held a review hearing on February 8, 2017. The court found that the

parents had some compliance with the case plan. As to Stowell, the court found that she

had completed her drug-and-alcohol assessment but had not completed treatment. The

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court noted that she had housing and limited income and that she had regularly visited the

children. As to Holden, the court found that he had stable income, housing, and

transportation. The court ordered that he complete a psychological evaluation and any

recommended treatment, complete parenting-without-violence classes, resolve his

outstanding criminal charges, and comply with the terms and conditions of any sentences.

On May 24, the court held a permanency-planning hearing. The court authorized

DHS to obtain a permanent custodian and noted that Holden had a good relationship with

the children and had visited regularly and appropriately. The court further noted that

Holden was attending parenting-without-violence classes as required by his sentence for his

conviction of physical abuse of his nephew. The court found his living arrangements

“unconventional with an estranged wife and an estranged girlfriend, with whom he has two

small children and is pregnant at this time.” As to Stowell, the court noted that she had

tested positive for methamphetamine and THC and that she had moved without informing

DHS. The court further noted that Stowell’s diagnostic impression included bipolar disorder

and anxiety disorder, and it found that she had acted inappropriately during visitations with

the children.

The court held review hearings on August 23 and October 27. The court found that

Holden had a good relationship with his children, visited them regularly and appropriately,

and completed his psychological evaluation and parenting-without-violence course. The

court found that the children could not be safely reunified with Stowell and authorized

DHS to increase Holden’s visitation with the children, including a trial home placement.

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On March 28, 2018, the court held a permanency-planning hearing. The court

found that Holden had appropriate housing, income, and transportation. The court again

noted his “complicated personal life” but stated that he had complied with DHS’s requests

regarding those issues during visitations with the children. The court noted that DHS

anticipated beginning the trial home placement with Holden when the school semester

ended. The court again found that the children could not be safely placed with Stowell and

relieved DHS of providing reunification services to her.

On August 15, the court held a review hearing. The court noted that the children

had been on a trial home placement with Holden and that they had “done well in his care.”

The court found that Holden is a fit and proper person to be awarded care and custody of

the children. The court awarded him custody but ordered DHS to maintain a protective-

services case. The court further ordered Holden not to use corporal punishment. As to

Stowell, the court found that DHS had discretion regarding visitation, but it prohibited

extended or overnight visitation without approval from the ad litem.

On October 31, the court held a review hearing. DHS informed the court that the

children had flourished in Holden’s care and that permanency for the children had been

achieved. DHS requested the court to close Holden’s case but stated that the court needed

to determine appropriate visitation for Stowell.

Stowell responded that she did not “have an objection necessarily to the closing of

the case,” but she requested the court to order standard visitation. Holden and the ad litem

both requested limited supervised visits.

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DHS then stated that the case had been open for two years, that it had offered Stowell

supervised and unsupervised visitations, and that she had continued to be inappropriate

during visitations. Thus, DHS asked the court to order only weekly one-hour supervised

visits. The following colloquy then occurred:

ATTORNEY FOR MOTHER: Your Honor, I’m going to object at this point. I
mean, if we want to put on some evidence, then
let’s do it, because I’m not going to sit here and
let the Department just put on testimony through
their attorney. And I’m going to call Mr. Holden
to the stand.

ATTORNEY FOR DHS: I am making, basically, a closing argument. I’m
not testifying. I’m telling the Court why we have
made the recommendation that we have made.
So if I could go ahead and do that, and then if she
wants to call a witness, I don’t object to that.

ATTORNEY FOR MOTHER: Just note my objection.

THE COURT: So noted. I think that I’ve sat through the course
of this case for long enough to understand the
obstacles and issues, and probably can make the
appropriate ruling.

ATTORNEY FOR DHS: Thank you, Your Honor.

THE COURT: You still need to call a witness, Ms. Weimar?

ATTORNEY FOR MOTHER: Let me see if I can get a hold of my client.

THE COURT: I think your client has left the building.

ATTORNEY FOR MOTHER: Probably.

....

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ATTORNEY FOR MOTHER: So, my client just wants me to tell the Court that
she wants her visitation with the Standard Order
and she wants the case left open, so I think the
Court has seen this case enough and the Court
can decide how to make an appropriate order.

Thereafter, on January 28, 2019, the court entered an order closing the case and

permanently placing the children with Holden. The court found that it was contrary to the

welfare of the juveniles to be returned to the custody of Stowell and that it was in their best

interest to be placed with Holden. The court awarded Stowell weekly supervised visitations.

This appeal followed.

This court reviews findings in dependency-neglect proceedings de novo, but the

circuit court’s findings will not be reversed unless the findings are clearly erroneous. Ellis v.

Ark. Dep’t of Human Servs., 2016 Ark. 441, 505 S.W.3d 678. A finding is clearly erroneous

when, although there is evidence to support it, the reviewing court, based on the entire

evidence, is left with a definite and firm conviction that a mistake has been committed. Id.

While we give due deference to the circuit court’s determination of the credibility of the

witnesses and the weight to be given their testimony, the circuit court’s conclusions of law

are given no deference. Id.

On appeal, Stowell argues that the circuit court erred by granting permanent custody

of the children to Holden in the absence of any evidence that the placement was in the best

interest of the children. She points out that the court entered the January 28, 2019 review

order, which closed the case and placed the children permanently with Holden, following

the October 31, 2018 hearing where no evidence was presented. She asserts that the lack of

evidence is disconcerting given the “numerous red-flags raised with regard to [Holden] and

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acknowledged by the trial court throughout the course of this case.” She further points out

that the record does not show whether DHS conducted a home study.

We need not reach the merits of Stowell’s argument due to invited error. Under the

doctrine of invited error, a party may not complain on appeal of an erroneous action of a

circuit court if she induced or acquiesced in that action. Smith-McLeod v. Ark. Dep’t of

Human Servs., 2019 Ark. App. 25, 571 S.W.3d 491; J.I. Case Co. v. Seabaugh, 10 Ark. App.

186, 662 S.W.2d 193 (1983); see also Clark v. Ark. Dep’t of Human Servs., 2016 Ark. App.

286, at 5, 493 S.W.3d 782, 786 (holding that, pursuant to invited-error doctrine, where

Clark’s attorney argued to the circuit court that “significant change of circumstances” was

required to effectuate a change of custody that arose solely from dependency-neglect action,

she could not then argue on appeal that the circuit court had used the wrong standard from

domestic-relations proceedings). Here, Stowell’s counsel conceded at the October 31

hearing that the circuit court could make a ruling without receiving more evidence.

Specifically, Stowell stated that she wanted the court to award her standard visitation, that

the court “had seen this case enough,” and that the court could decide how to make an

appropriate ruling. Because Stowell invited the error that she now complains of, we affirm.

Affirmed.

GLADWIN and WHITEAKER, JJ., agree.

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

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

children.

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