FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63JV-2014-317]
HONORABLE GARY ARNOLD, JUDGE
Tabitha McNulty, Ark. Pub. Defender Comm'n, for
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
M. GLOVER, Judge
Wheatley appeals from a December 14, 2015 order placing
permanent custody of her two children, K.W. and J.W., with
Randi's father and stepmother, granting them sole
discretion concerning Randi's visitation with the
children, and closing the case. We affirm.
August 12, 2014, the trial court entered an emergency ex
parte order, allowing the Arkansas Department of Human
Services (DHS) to take custody of Daniel Wedsted's and
Randi Wheatley's two children, K.W. and J.W. K.W., who
was eleven months old at the time, had been admitted to the
hospital with a broken clavicle, bruising, and bleeding in
his testicles. He also had an older, healing fracture to his
left ulna. In addition, Randi and DHS had a history
concerning her other child, J.W. J.W. had earlier been found
dependent-neglected based on bruises, which Randi admitted
having caused and for which she had been found criminally
responsible. A probable-cause order in the instant case was
entered on August 13, 2014. On October 7, 2014, the children
were adjudicated dependent-neglected. Randi was ordered to
attend counseling, to complete parenting classes, to have a
psychological evaluation, to follow the psychologist's
recommendations, to attend anger-management classes, and to
comply with the case plan and follow all court orders.
August 4, 2015, the trial court entered a permanency-planning
order in which it expressed its continuing concerns about the
children's safety if they were returned to Randi's
care, even though she was complying with much of the case
plan. The trial court stated in the order that it was
"very tempted to close the case today by placing the
juveniles in the permanent custody of Rhonda and Andy
Wheatley, their maternal grandfather and stepgrandmother, who
have cared for these boys for much of their lives, " but
instead gave Randi "three (3) more months to convince it
otherwise." Following the entry of this order, the
Arkansas State Police Crimes Against Children Division
investigated an allegation of suspected child maltreatment
concerning K.W. as the alleged victim and Rhonda (the
step-grandmother) as the alleged offender. On September 16,
2015, the Division issued its determination that the
allegations were not supported by a preponderance of the
evidence and were therefore unsubstantiated.
a hearing in November, the trial court entered its December
14, 2015 "Closure Order from Fifteenth Month Permanency
Planning Hearing." In this order, the trial court stated
that it was not satisfied the children would ever be safe in
Randi's custody, placed the children in the permanent
custody of Rhonda and Andy Wheatley, left visitation in
Rhonda and Andy's sole discretion, and closed the case.
filed her notice of appeal from the closure order on January
4, 2016. She contends 1) this court should reverse because
the order was based on a mistake of fact by the trial court;
2) Randi could not be required to remedy an issue she was
never found to have committed; and 3) it was erroneous for
the trial court to deny regular visitation. Daniel Wedsted
does not appeal. We find no basis for reversal.
standard of review in juvenile proceedings is de novo, and we
do not reverse unless the trial court's findings are
clearly erroneous. Metcalf v. Arkansas Dep't of Human
Servs., 2015 Ark.App. 402, 466 S.W.3d 426. 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.
Id. We give due deference to the superior position
of the circuit court to view and judge the credibility of the
witnesses. Id. 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 his or her
powers of perception in evaluating the witnesses, their
testimony, and the best interest of the children.
first two points are so interrelated that they can best be
discussed together. We begin by recapping the arguments
raised in each point and then discuss our resolution of them
first point, Randi argues the order she appeals was based on
a mistake of fact by the trial court and should therefore be
reversed. She notes that at the dependency-neglect
adjudication hearing, the trial court declined to make a
ruling regarding whether she was the one who actually abused
K.W. She then contends that, in the order she is appealing,
the trial court's decision was based upon its finding
that Randi refused to admit she had caused the injuries to
K.W. She argues the mistake in fact is the trial court's
mistaken belief that she was proven and adjudicated to be the
perpetrator of K.W.'s abuse.
second point, Randi contends it was error for her to be
required to prove she remedied the physical abuse of K.W.
when she had never been found to have committed the abuse in
the first place. She asks this court to reverse the trial
court's order and remand the case for ...