Arkansas Dept. of Human Services v. Couch

Decision Date27 May 1992
Docket NumberNo. CA,CA
Citation832 S.W.2d 265,38 Ark.App. 165
PartiesARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. Jim and Lana COUCH, Appellees. 91-436.
CourtArkansas Court of Appeals

David K. Overton, Pine Bluff, for appellant.

Terry Jensen, Benton, for appellees.

DANIELSON, Judge.

Appellant Arkansas Department of Human Services (DHS) appeals from a probate court order granting a petition for adoption filed by appellees, Jim and Lana Couch. The court denied the petition of DHS seeking termination of parental rights and appointment of DHS as custodian with power to consent to adoption. Appellant's position was that Jennifer, the child adopted by appellees, and her sister Misty, who has cerebral palsy, should be adopted together as a sibling group. Appellees sought to adopt only Jennifer. After careful review of the record and of the arguments raised by appellant, we affirm the lower court's ruling that it serves the best interests of both children for them to be adopted separately.

Misty was born on May 26, 1988, and removed from her mother's care on February 10, 1989. At that time she was placed with a foster parent, Jean Goff. Misty has cerebral palsy and goes to Easter Seals for therapy four days a week. Jennifer was born on June 30, 1989. She was removed from her mother's care on August 30, 1989, and placed in foster care with Ms. Goff.

On March 8, 1991, appellant filed a petition for termination of parental rights regarding Jennifer and sought custody with the power to consent to adoption. The same had been filed regarding Misty on February 21, 1991. Sometime during this same time frame, appellees became aware of Jennifer and the possibility of adopting her. Appellees tried to arrange the adoption through DHS, but decided to pursue a private adoption when they met with resistance from DHS. They obtained consent for adoption of Jennifer from her biological mother and were allowed by the court to intervene in the termination of parental rights action filed by appellant. After several hearings on the matter, the court granted appellees' petition to adopt Jennifer.

Appellant's first contention is that the trial court's ruling was clearly against the preponderance of the evidence. Appellant argues that the trial court abused its discretion when it allowed Jennifer to be adopted separate and apart from her sister. Although we review probate proceedings de novo on the record, it is well settled that the decision of a probate judge will not be disturbed unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. In re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989). In cases involving child custody, a heavier burden is cast upon the court to utilize to the fullest extent all its powers of perception in evaluating the witnesses, their testimony, and the child's best interests. The appellate court has no such opportunity, and it has often been said that we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as when the interests of minor children are involved. See In Re Adoption of Milam, 27 Ark.App. 100, 766 S.W.2d 944 (1989).

Appellant states in its brief that DHS's operating policy and Arkansas case law indicate that a court should place siblings together for adoption purposes unless sufficient conditions warrant otherwise. In any proceeding involving the welfare of young children, the court is in no way bound by DHS policy; rather, the paramount consideration is the best interests of the children. See id.

Arkansas case law does recognize the principle that unless exceptional circumstances exist, young children should not be separated from each other by dividing their custody. See, e.g., Johnston v. Johnston, 225 Ark. 453, 283 S.W.2d 151 (1955), and Ketron v. Ketron, 15 Ark.App. 325, 692 S.W.2d 261 (1985). Our courts, however, have recognized that the existence of exceptional circumstances does sometimes warrant the separation of siblings. In Fries v. Phillips, 189 Ark. 712, 74 S.W.2d 961 (1934), the supreme court affirmed an order that allowed a brother and sister to be adopted separately. While recognizing the "forceful" argument that siblings should not be separated, the court noted that the two children had been separated for some time and did not know each other. 189 Ark. at 716, 74 S.W.2d 961. In Riddle v. Riddle, 28 Ark.App. 344, 775 S.W.2d 513 (1989), this court affirmed the chancellor's decision to separate the custody of two half-brothers. In response to appellant's arguments based on the principle set forth in Ketron, this court stated that it did not agree that the law of child custody must be applied in such a rigid and mechanical fashion and that the theory advanced by appellant required no consideration of the child's best interests. 28 Ark.App. at 349. A petition for adoption may only be granted upon a finding that the adoption is in the best interest of the individual to be adopted. Ark.Code Ann. § 9-9-214(c) (Supp.1991).

In light of our case law, Ark.Code Ann. § 9-9-214(c), and our well-settled rule that the primary consideration in cases involving the welfare of a child is the best interest of that child, we conclude that while keeping siblings together is a commendable goal and an important consideration as a general rule, it is but one factor that must be taken into account when determining the best interest of the child.

Jean Goff, the foster parent of Misty and Jennifer, testified that she thought it would be in the best interests of the children to be placed separately. Ms. Goff described the care necessary for Misty, testifying that there is nothing Misty can do by herself; she has to be fed, dressed, and carried around. She said that the two children have to be watched constantly when they are together because of the danger that Jennifer will put something into Misty's mouth and that Misty is easily frightened around other children. Ms. Goff testified that Jennifer is jealous of the time spent with Misty. It is Ms. Goff's opinion that the two girls do not recognize each other as sisters and that there is no bonding between them.

Appellant offered no evidence other than its general policy that it would not be in Jennifer's and Misty's best interests to be placed separately. Although it...

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15 cases
  • Martin v. Martin
    • United States
    • Arkansas Supreme Court
    • May 2, 1994
    ...statute was "mandatory" and that there was "substantial compliance" with it. The court of appeals, in Arkansas Department of Human Services v. Couch, 38 Ark.App. 165, 832 S.W.2d 265 (1992), adopted our language from Taylor v. Collins. However, we have never intended to vary our requirement ......
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