Metcalf v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 402

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-1130

ANGELA METCALF Opinion Delivered June 17, 2015
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. TENTH DIVISION
[NO. JN2014-237]

ARKANSAS DEPARTMENT OF HONORABLE JOYCE WILLIAMS
HUMAN SERVICES and MINOR WARREN, JUDGE
CHILD
APPELLEES AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Angela Metcalf appeals from a decision of the Pulaski County Circuit Court

awarding custody of Metcalf’s daughter, A.P., to A.P.’s father, Jonathan Phillips, and closing

the dependency-neglect case. She argues that the evidence was insufficient to support the

court’s order granting permanent custody to Phillips. We find no error and affirm.

I. Standard of Review

In juvenile proceedings, the standard of review on appeal is de novo, although we do

not reverse unless the circuit court’s findings are clearly erroneous. Thomas v. Ark. Dep’t of

Human Servs., 2012 Ark. App. 309, 419 S.W.3d 734. 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. Stewart v. Ark. Dep’t
Cite as 2015 Ark. App. 402

of Human Servs., 2011 Ark. App. 577. We give due deference to the superior position of the

circuit court to view and judge the credibility of the witnesses. Thomas, supra. This deference

is even greater in cases involving child custody, as a heavier burden is placed on the judge

to utilize to the fullest extent of his or her powers of perception in evaluating the witnesses,

their testimony, and the best interest of the children. Id. With these standards in mind, we

now turn to the evidence before the court and consider Metcalf’s arguments challenging the

sufficiency of this evidence.

II. The Evidence

The case began when the Arkansas Department of Human Services (DHS) filed a

petition for ex parte emergency custody and dependency-neglect following Metcalf’s arrest

on drug charges. At the time of her arrest, Metcalf and A.P. were passengers in a vehicle that

was being driven by a registered sex offender; methamphetamine and drug paraphernalia

were also found in the car. When a DHS caseworker made contact with Metcalf at the

Sherwood Police Department, Metcalf tested positive for methamphetamine. She was

charged with endangering the welfare of a minor, possession of methamphetamine with

purpose to deliver, and possession of drug paraphernalia. Because A.P. was left without a

legal caretaker following Metcalf’s arrest, DHS took custody of A.P. on the basis of neglect

and parental unfitness. Based upon this evidence, the court found probable cause and later

adjudicated A.P. dependent-neglected, specifically finding that she was at substantial risk of

serious harm as a result of neglect and parental unfitness. Despite this finding, the court set

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the goal of the case to be reunification and set the case for subsequent evidentiary review

hearings.

At the review hearings, the court received evidence pertaining to Jonathan Phillips,

who had submitted to DNA testing. Based upon the results, the court determined Phillips

to be the biological father of A.P.1 Following that determination, the court placed A.P. in

Phillips’s temporary legal custody based upon a recommendation from DHS that Phillips was

able to provide “stability and structure” for A.P.2 Additional evidence showed that A.P. had

started cheerleading practice and that Phillips had obtained a tutor for A.P. so she could

improve her math grades.

In addition to the evidence concerning Phillips’s stability, the court received evidence

concerning Metcalf’s instability with respect to her housing, employment, criminal charges,

visitations, compliance with the case plan, and her ability to meet the needs of A.P.

In the area of housing, DHS noted that Metcalf had moved five times, had six

different addresses, and had not notified DHS in a timely manner when she did move.

Metcalf admitted that she had lived at several different addresses during the short pendency

of the case. She described how she left her husband’s home because he was abusive; she

moved to the Ward Women’s Shelter and then to Our House, where there was a “good

program” and access to a bus route. After leaving Our House, she moved to Jacksonville.

1
Phillips introduced a judgment of paternity acknowledging that he was A.P.’s
biological father at a review hearing in September 2014.
2
Caseworker Bethany Taylor testified that Phillips had always had stable housing and
employment and that he and A.P. interacted very well together.

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After her husband was incarcerated, she moved her trailer to Prothro Junction, but it was

broken into there and she did not feel safe, so she moved to her current location in Benton.

Metcalf explained that she had moved so many times because she was trying to find a better

environment for herself and her daughter.

With respect to her employment, Metcalf admitted that she was unable to find a job

while she lived in Jacksonville because she did not have access to transportation. By the date

of the final hearing, however, Metcalf said that she had been working at Harps Grocery for

about four weeks. She stated that she had been terminated from her previous job at a hotel

over allegations that she was “confrontational” and had “fraternized with a client,” although

she claimed this was not true. Metcalf said that she could provide stability for A.P. because

she was “pretty set” at her job and did not plan on moving again.

With regard to her criminal charges, Metcalf acknowledged that they were still

pending, but she noted that she had entered a not-guilty plea and that she was scheduled for

trial in December.

DHS expressed concerns regarding the area of visitation. DHS explained that Metcalf

had missed six of her thirty-six visitations after the review hearing in April: of those, one was

because Metcalf was sick; and two were because A.P. was out of town, and Metcalf could

not reschedule the visits because she was working. DHS further reported “numerous

conversations” with Metcalf about her visits. The Department was concerned with “the

appropriateness of the conversation that she’s been having with A.P. Ms. Metcalf does speak

to A.P. about adult things, not age-appropriate topics.” Caseworker Bethany Taylor noted

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that Metcalf had been compliant, but not consistent, with her visitations. Metcalf said that

she had missed some of her visits with A.P., but she was working one of those days, was sick

another, and miscommunicated with her DHS caseworker on another. She asserted that the

supervised visitations with Phillips’s parents had not gone well because his parents were rude

to her and “made comments that were against” her.

With regard to Metcalf’s compliance with the case plan, DHS reported that

communication with Metcalf was “very poor,” in that she did not always answer her phone

when DHS called, and when she did speak to the Department, “we have known to catch

her in a lot of untruths.” Although Metcalf had provided ten clean drug screens since the case

began, DHS described Metcalf’s compliance with the case plan as having “more than partially

complied, but not substantially complied with the court orders.” In addition to her instability

in housing and employment, DHS reported non-compliance with court-ordered therapy.

Metcalf admitted that she missed her court-ordered therapy for three weeks because she was

looking for a job in White Hall to be closer to A.P., but she asserted that she notified her

caseworker and therapist of her plans beforehand.

Finally, with regards to Metcalf’s ability to meet A.P.’s needs, the court heard

evidence concerning Metcalf’s lack of transportation and her inability to provide for A.P.

educationally. Metcalf conceded that A.P. had been in three different schools while in her

care and that she did not have a functioning car at various times throughout the development

of the case. Moreover, she agreed that her lifestyle had not been stable over the preceding

six months, due to her frequent moves and lack of employment.

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The court also considered testimony concerning A.P. By all reports, A.P. was doing

very well in her placement with Phillips, who had “provided stability and structure.”A.P.

testified that she would like to live with her dad, saying she felt it was a better place for her

to live “because my mom and me have been through some things and I think it’d just be

better if I lived with my dad.” She cited having lived in an abusive home with her mother,

which was “scary.” She said that it was a hard decision for her to come to, but she wanted

to live with her father and visit with her mother. A.P. explained that she wasn’t getting good

grades when she lived with her mother and felt that she needed a tutor, but she did not ask

her mother for help “because she was working all the time.” She said that visits with her

mother went well and that she liked them, but sometimes her mother and her paternal

grandmother would “say things to each other that maybe they shouldn’t.”

Based upon this evidence, the circuit court entered its final order granting permanent

custody to Phillips and closing the case. The court cited DHS’s difficulty in getting in touch

with Metcalf, her frequent moves over the preceding month, the fact that her lease on her

trailer lot was month-to-month, and the fact that her job was part-time. The court

concluded that Metcalf had “not been stable throughout the majority of this case” and had

“made minimal progress towards alleviating or mitigating the causes of [A.P.’s] removal from

the home.” Phillips, on the other hand, had complied with the case plan and court orders,

had been supportive of A.P. both emotionally and financially, had maintained the same stable

housing and employment, and had an extended family support system and a good

relationship with A.P. The court therefore granted permanent legal custody of A.P. to

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Phillips, established a visitation schedule for Metcalf, and closed the case. Metcalf filed a

timely notice of appeal.

III. Arguments

Pursuant to Arkansas Code Annotated section 9-27-334(a)(2)(A) (Repl. 2009), if a

juvenile is found to be dependent-neglected, the circuit court may enter an order transferring

custody of the juvenile to a relative or other individual if to do so is in the best interest of the

juvenile. See Keckler v. Ark. Dep’t of Human Servs., 2011 Ark. App. 375, 383 S.W.3d 912.

On appeal, Metcalf argues that the circuit court erred in finding that it was in A.P.’s best

interest to be placed in her father’s permanent custody.

Metcalf’s challenge to the granting of permanent custody essentially hinges on two

components: she challenges the timing of the court’s decision, and she challenges the

evidence to support the decision. While Metcalf concedes that the child was removed from

her care due to parental unfitness, she takes the position that, from the onset of removal, the

case was proceeding towards a goal of reunification between her and the child. She

specifically argues that she was in compliance with the case plan and the court orders.

Further, she argues that the court’s decision to place permanent custody with Phillips at

month seven of a twelve-month case plan is inconsistent with her compliance and the best

interest of the child.

Metcalf contends that the evidence presented at the hearings demonstrated that she

had made substantial progress with the case plan. She cites her recently stable housing

situation and notes that her previous frequent moves were explained by, among other things,

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attempting to improve her situation by seeking shelter at the Ward Women’s Shelter and

Our House and looking for housing with nearby employment opportunities. She further

argues that the evidence showed that her “instability” was the result of her “making a diligent

effort to extricate herself from the situation she was in when the case began and to work

through the necessary steps to find stability in her housing and employment.”

Metcalf complains that she was only given seven months to attempt to rectify the

situation that caused removal, and yet within that time had “worked her way into a stable

residence, a stable job, and even got her vehicle fixed by the time the case closed—all while

completing parenting classes and being very consistent in attending therapy with the

exception of the three weeks she was in White Hall.” She also argues that it was

“disingenuous” for DHS to blame her for missing six of her thirty-six visits, when the

evidence showed that two were missed because A.P. was out of town and others were

rescheduled at a time when she could not attend.

It is true that Phillips was awarded permanent custody seven months after A.P. was

removed from Metcalf. The paramount concern in a custody determination, however, is the

best interest of the child; all other considerations are secondary, Bamburg v. Bamburg, 2011

Ark. App. 546, at 12, 386 S.W.3d 31, 38, including strict adherence to a calendar. While it

is also true that Metcalf had made some improvements during the course of the case, the

circuit court had evidence before it that she had only recently obtained relatively stable

housing, that she worked part-time making $7.50 per hour and had expenses of at least $450

per month, and still had pending drug charges that had yet to go to trial as of the time of the

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final hearing. In addition, the court considered evidence that A.P. was flourishing in her new

environment and had unequivocally expressed her desire to live with her father. On the

record before us, we are therefore unable to say that the circuit court’s decision was clearly

erroneous. See Fogerson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 232.

As noted above, we give great deference to the circuit court in cases that involve child

custody. Thomas, 2012 Ark. App. 309, at 8, 419 S.W.3d at 738. Having reviewed the

evidence in this case, we hold that the circuit court’s finding that it was in A.P.’s best interest

to be placed in the permanent custody of her father was not clearly erroneous. Accordingly,

we affirm its order.

Affirmed.

VAUGHT and HIXSON , JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Tabitha B. McNulty, County Legal Operations, for appellee.

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

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