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Wheatley v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

September 28, 2016

RANDI WHEATLEY APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63JV-2014-317] HONORABLE GARY ARNOLD, JUDGE

          Tabitha McNulty, Ark. Pub. Defender Comm'n, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          DAVID M. GLOVER, Judge

         Randi 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.

         On 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.

         On 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.

         Following 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.

         Randi 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.

         Our 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. Id.

         Randi's 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 together.

         As her 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.

         For her 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 ...


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