Whitt v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 293

ARKANSAS COURT OF APPEALS
DIVISION III
No.CV-15-20

Opinion Delivered May 6, 2015

GREGORY WHITT APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-2013-404-3]
V.
HONORABLE STACEY
ARKANSAS DEPARTMENT OF ZIMMERMAN, JUDGE
HUMAN SERVICES AND MINOR
CHILDREN
APPELLEES AFFIRMED

BRANDON J. HARRISON, Judge

Gregory Whitt appeals the order of the Washington County Circuit Court that

gave custody of three of his children, J.W., G.W., and T.W., to their mother, Jennifer

Shirley, and closed the dependency-neglect case. He argues that the circuit court erred in

finding that placement with Jennifer was in the children’s best interest. We affirm.

We explained the underlying facts of this case in a previous opinion:

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 girlfriend were drunk when the police
arrived at their house; Gregory placed one of the children between him and

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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 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 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, 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.

Whitt v. Ark. Dep’t of Human Servs., 2014 Ark. App. 449, at 1–3, 441 S.W.3d 33, 34–35

(Whitt I). In Whitt I, we held that the circuit court erred in granting Jennifer permanent

custody because “there simply was not enough information in front of the court to make
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this decision. Rather, the facts in front of the court suggested the need for further

investigation into the appropriateness of both parents.” Id. at 5, 441 S.W.3d at 36. We

therefore reversed and remanded for further proceedings.

Upon remand, the circuit court held a permanency-planning hearing on 10

October 2014. Nirika Morris, the Washington County DHS Supervisor, introduced a

court report and a case plan and recommended continued reunification efforts with

Jennifer. This recommendation was based on the fact that an Interstate Compact on the

Placement of Children (ICPC) home study had not been completed; Morris agreed that if

a favorable ICPC study was in place, she would recommend returning the children to

their mother. Morris also explained that Gregory had been recently convicted on criminal

charges and sentenced to six years’ imprisonment, so the Department was not

recommending further reunification efforts with him. Morris agreed that, according to

the court report, the children were “doing great” both in school and at home.

On cross-examination, Jennifer’s counsel attempted to introduce a home study of

Jennifer’s home conducted in November 2013 by the Florida Department of Children and

Families (DCF), but Gregory’s counsel objected on hearsay and relevance grounds. The

court initially decided to allow the report into evidence as a business record but ultimately

denied the admission of the report because counsel failed to provide opposing counsel

with a copy of the report in advance of the hearing. The report was proffered and made

part of the record.

Gregory testified that he was charged with jury tampering in June 2013 and was

currently incarcerated at the Washington County Sheriff’s Department. Counsel

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introduced certified documents from the Elkins District Court, which showed that in

December 2013, Gregory was found guilty of endangering the welfare of a minor.

Gregory acknowledged that because of his incarceration, the children could not go home

with him, but he was concerned about them returning to Florida with their mother

because she had “abused them physically and mentally in the past.” Gregory explained

that in December 2012, he observed a bruise on J.W., and he also stated that he had seen

evidence of physical abuse on all the children. Gregory also testified that he knew “for a

fact” that Jennifer was using drugs. He expressed concern with Jennifer and the children

living with his brother, David, and Gregory’s counsel introduced a certified copy of

David’s plea of guilty to child neglect and battery in October 2012. Gregory also

expressed concern that Jennifer did not have a job, a car, or any way to support herself

without David. Gregory stated that he would like the children to be placed with his

current wife, Toni Whitt, or her parents. On cross-examination, Gregory acknowledged

that he had been found guilty of jury tampering and sentenced to six years’ imprisonment.

He also acknowledged that he had provided no financial support to his children in the past

year but explained that it was “because I have had no available contact.”

Twelve-year-old J.W. testified that he was in the seventh grade at Cutler Ridge

Middle School in Miami, Florida, and that he had good grades. He explained that he was

in a special program at school that focuses on marine biology and that he “love[d] it.” As

for his living arrangements, J.W. explained that he and his little brother T.W. slept on

bunk beds in one room; his brother G.W. and his cousin Ray slept on bunk beds in

another room; his mom slept in a third room, with his youngest brother, M.W., in a

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toddler bed; and his Uncle Dave slept on a pull-out couch. He testified that he had never

seen anyone drink alcohol at the house and that his mother had never hit him or his

brothers. He also stated that his uncle helped take care of him and his brothers and that he

felt safe around his uncle. When asked if he wanted to go home to Florida, J.W. said yes,

and when asked if he wanted to see his father, he said, “I can’t really answer that.”

David Whitt testified that Jennifer and the children currently live with him and his

son, Ray, and that all the children get along fine. He explained that the house had four

bedrooms and two bathrooms but that one bedroom was still under construction. He

testified that he was honorably discharged from the Marine Corps after suffering a head

injury, that he currently received veterans benefits, and that his total monthly income was

$4500. He also testified to the circumstances surrounding his pleading guilty to child

neglect, explaining that he was involved in an altercation with his then wife and her

twelve-year-old daughter while his three-year-old daughter was in the room. He clarified

that he had never hit his ex-wife or her daughter and explained that he later pled guilty to

child neglect because he was blackmailed by Gregory. Finally, he stated that although he

had no relationship with his brother Gregory, he would be willing to act as a supervisor

for the children’s visitation with Gregory.

Jennifer testified that the children had been with her for a year and that they were

“doing great.” She expressed her desire for the children to remain in her care and opined

that it would be detrimental to them to be removed from her home. She agreed that she

did not have financial resources to take care of the children on her own but stated that, if

necessary, she could get a job and her own home and that she has a great support system

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of other family members. She also explained that she planned to look for a job once

M.W. reached four years of age and started preschool.

In its oral ruling, the court noted the first statutory preference at the permanency-

planning stage, which is placement with a fit parent, and opined that it could not place the

children with Gregory because he is incarcerated and because it would not be in the

children’s best interest. The court found that Gregory had been convicted of endangering

the welfare of a minor and had committed the offense of jury tampering in March 2014,

after the first order placing custody of the children with Jennifer. The court gave “no

credence” to Gregory’s concerns about his children living with David, considering that

Gregory had previously agreed to M.W. being in Jennifer’s custody in David’s home.

The court also noted that Jennifer’s hair-follicle test was clean and that J.W., whom the

court found “extremely credible,” testified that he and his brothers had never been hit by

their mother. The court found “zero evidence” to support Gregory’s concern that the

children were physically abused or in danger in David’s home. The court found that

ICPC did not apply to the parents in this case and that the “[h]ealth, safety[,] and best

interests of these three older children are best served by continuing to be with their

mother.”1 The court concluded:

At today’s Permanency Planning, the burden is on the parent to demonstrate
genuine sustainable investment in completing the requirements of the case
plan and following orders of the Court in order to authorize the plan to
return the child to the parent and keep the goal reunification. Mr. Gregory
Whitt has failed to carry his burden as he is incarcerated, he cannot provide

1
The circuit court is correct that the ICPC does not apply when a child is returned by the
sending state to a natural parent residing in another state. See Ark. Dep’t of Human Servs. v.
Huff, 347 Ark. 553, 65 S.W.3d 880 (2002).
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stable housing for the children, he still has not resolved, I believe, the issue
with the domestic violence in the home. . . . I am going to order that the
children be placed in the permanent custody of Jennifer Shirley.

The court entered a written order on 23 October 2014 that incorporated its oral

ruling. The written order also made the following findings:

Mother has complied with all of the court orders and the case plan making
significant measurable progress. Specifically, she has demonstrated the ability
to parent and protect the children as the children have thrived in mothers
[sic] home for the past year. . . . There is NO EVIDENCE the children are
at risk of harm in the home of their mother and uncle David Whitt. . . .
[T]he present living situation is a stable and safe home environment.
Moreover, the evidence is clear and convincing that the juveniles are
thriving in their present environment and are dong very well in school. The
mother has made significant measurable progress towards achieving the goals
established in the case plan, alleviating or mitigating the causes of the
juveniles’ removal from the home and completing the court orders and
requirements of the case plan, and diligently working towards reunification.

(Emphasis in original.) Gregory again appealed the circuit court’s order granting custody

to Jennifer.

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.

On appeal, Gregory argues that the circuit court again erred in finding that placing

the children with Jennifer was in the children’s best interest. He asserts that there are still
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questions and concerns about (1) David’s status as “child abuser,” (2) DHS’s failure to

admit Jennifer’s psychological evaluation into evidence, (3) Jennifer’s current or future

earning potential, and (4) the stability and appropriateness of the children’s living

arrangements. Gregory also argues that the proffered Florida DCF report should have

been admitted and proceeds to point out inconsistencies between information in that

report and the testimony at the permanency-planning hearing.

In response, DHS contends that the evidence presented below adequately

demonstrated that placement with Jennifer was in the children’s best interest. DHS notes

that for the twelve months prior to the permanency-planning hearing, Jennifer cared for

the children and provided for all their needs, thus giving them the necessary stability.

DHS also points out that the children have done well academically and that J.W. testified

that he wanted to live with his mother.

We hold that sufficient evidence was provided at the permanency-planning hearing

for the court to make a best-interest determination, and we are not left with a definite and

firm conviction that a mistake has been made. As to Gregory’s evidentiary argument, it

was Gregory’s counsel who objected to the report’s admission; a party cannot complain of

action he has induced, consented to, or acquiesced in. Dew v. Dew, 2012 Ark. App. 122,

390 S.W.3d 764. We therefore affirm the award of permanent custody to Jennifer.

Affirmed.

GLADWIN, C.J., and ABRAMSON, J., agree.

Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect
Appellate Division, for appellant.
Tabitha B. McNulty, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

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