Faulkner v. McCain

• Decision Date: 02 December 2020
• Docket Number: No. CV-20-140,CV-20-140
• Citation: 613 S.W.3d 746,2020 Ark. App. 541
• Parties: Courtland FAULKNER, Appellant v. Daniel MCCAIN, Appellee
• Court: Arkansas Court of Appeals

2020 Ark. App. 541

613 S.W.3d 746

Courtland FAULKNER, Appellant

v.Daniel MCCAIN, Appellee

No. CV-20-140

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: December 2, 2020

The Law Offices of Dustin A. Duke, PLLC, by: Dustin A. Duke, for appellant.

Mylissia M. Blankenship, for appellee.

ROBERT J. GLADWIN, Judge

Courtland Faulkner appeals the Pulaski County Circuit Court order changing custody of her daughter to appellee Daniel McCain. On appeal, Faulkner argues that the circuit court erred when it found a material change in circumstances and that it was in the child's best interest to change custody to McCain. We affirm.

I. Facts

This case began in 2014 with competing complaints to establish paternity of JM (born June 2013). On September 18, 2017, the parties filed an agreed order that named McCain as JM's father, awarded primary physical custody to Faulkner, and awarded joint legal custody to both parties. Also, a visitation schedule was set, and child support was established.

On January 24, 2019, Faulkner filed a motion to modify visitation and increase child support, and on April 24, an attorney ad litem was appointed to represent JM. At the hearing on May 13, Faulkner testified that she had filed the motion to reduce summer visitation because when JM, then age five, returned from extended visits with her father, her behavior was so extreme that she was removed from a regular classroom and placed into an alternative school. She said that at the beginning of the school year, JM would throw fits in the classroom, throw her shoes, hit other students, and scream at adults. This behavior resurfaced in December, and JM was removed from the classroom for not listening. JM proceeded to the principal's office and spit at, swung at, and became aggressive toward the administrative assistant. She said that after JM talked to Paige Sullivan, Faulkner's life partner, JM's behavior improved; but it escalated later in the day, and JM began throwing her backpack, calling teachers "buttholes," and making comments that the teachers could call Paige or her mother because she was going to her dad's.

Faulkner said that McCain, who lives in Oklahoma, had never kept JM for more than three weeks. She said that she never denies McCain visitation when he comes to town, that she is willing to work with him throughout the year, and that JM's behavior has a direct correlation with her extended stays with McCain. JM takes Focalin, a medication for her ADHD, and the ad litem's report states that the medication began in March 2019.

On cross-examination, Faulkner said that JM had been in therapy and that "I'm currently in the process of finding her a new therapist." She said that JM last saw her therapist in March and that she felt like JM needed more therapy and independent therapy. She said that JM was diagnosed in November 2018 and that she thought it was in JM's best interest to be at home for at least five weeks before school starts so that she could quickly transition back into a regular classroom. When questioned by the court, Faulkner said that JM had quit going to therapy after March because "[h]er therapist felt that she had benefited all that she could" from the child-directed interaction therapy.

The hearing was not completed, and it was continued to August 12. In the meantime, on July 12, McCain filed a motion to modify custody and visitation, alleging a material change in circumstances affecting JM's best interest. McCain alleged that JM, then age six, had begun exhibiting extremely abnormal behaviors since the entry of the agreed order and that she had been suspended from school repeatedly and had been transferred to an alternative school. JM was evaluated by a psychologist and diagnosed with ADHD and an adjustment disorder, and the psychologist recommended individual and family therapy. McCain alleged that the therapy had not occurred on a regular basis and that Faulkner's attempts to discipline the child were ineffective or inappropriate. He alleged that Faulkner had delegated much of JM's discipline to Paige, her significant other, and had allowed JM to be paddled at school. He also alleged that Paige had JM handcuffed and placed into the backseat of a patrol car. He claimed that Faulkner had not involved him in any decision regarding the child's treatment or discipline and did not foster a positive relationship between him and JM. In her response to McCain's motion, Faulkner alleged that McCain was the direct reason for JM's negative emotional and behavioral change.

When the hearing resumed on August 12, the circuit court administratively dismissed without prejudice the motion to limit summer visitation because it had already occurred. The court took up the motion for change of custody on a temporary basis stating, "I'm going to use this time to take a snapshot of the welfare of the child."

Faulkner testified that JM was beginning the school year at an alternative school but would be transitioning to Northside Elementary in Cabot after the first two weeks. She said that to correct JM's behaviors, she had tried several approaches—positive reinforcements, redirecting, corporal punishment, and removing things and having JM earn them back with appropriate behavior. She said that when she removed "everything" from JM's room, she meant "the big items that are easily accessible," and she denied that she had ever left the child in a bare room.

Faulkner said that following spring break 2019, she spanked JM for calling her a mean witch. She also spanked JM in December 2018, explaining that JM had spoken with her dad on the phone, and when she was in bed for the night, she wanted to speak with her dad again. When she was told she could not, she became very aggressive and hit Faulkner in the stomach, kicked her in the shins, and threw a baby stroller and other objects in her room. Faulkner "ended up popping her on the bottom" and then later allowed JM to call McCain. She also said that she went to the school to spank JM in December 2018 and had given the school permission to spank JM in the fall of 2018 and early in 2019.

Faulkner said that the last time Paige physically disciplined JM was in June 2018 when she "attempted to place a scare tactic method" on JM. She thought it was okay for Paige to discipline JM because Paige is her partner and a primary caregiver for JM. "If she is not allowed to correct the behavior that is displayed while [JM] is with her, then [JM] will not show her respect and will never listen." She denied sending Paige to school to deal with JM's discipline problems but said that she had sent Paige to the school to "help in redirecting [JM] when she was having behavior problems" because Faulkner "may have already left work once or twice that week" to go to the school. When asked if it was appropriate to spank a child with the diagnosis of ADHD with emotional disturbance and conduct, she said she did not know of JM's diagnosis until November 2018 and that she was doing her best to figure out how to deal with a child who had those particular disorders, and she now believes it is not appropriate to spank JM. She said that the therapist advised her in December 2018 that spanking was not a good approach, and she admitted that after she received that advice, she spanked JM.

Faulkner said that JM's bedtime is no later than 7:30 p.m. and no earlier than 7:15 p.m. and that she is the primary disciplinarian at home. She said that JM began therapy in January, and she attended five sessions until March. She said the next step in JM's therapy is parent-directed instruction, which provides ways for parents to effectively instruct children and discipline them when instructions are not followed. She said that those sessions had not begun, that JM started therapy "last week," and that the therapy was a booster session for the five sessions she had earlier in the year. She said that Paige would be attending the next session and possibly the one after that because the relationship between JM and Paige had been distressed since JM returned from summer visitation.

Faulkner said that it is entirely McCain's fault that JM behaves the way that she does, that McCain does not provide structure, uniformity, or discipline when JM visits, and that JM reacts negatively when she "has those" at Faulkner's house. She said that JM should be able to see McCain whenever she wants and when a visit can be accommodated. When she enrolled JM in school, Faulkner did not put McCain's name on the paperwork. She said that she had tried to consult with McCain on decisions about school and medical care but that he does not wish to coparent with her. She did not contact McCain before she had JM's medication increased after summer visitation, and she did not ask him if he thought JM needed it or if he had a method to help JM get to sleep at night.

Faulkner said that the therapist, Dr. Jason Lagory, did not want to begin the parent-directed-instruction sessions after the child-directed sessions had concluded on March 25 because JM was going to go to McCain's house for the summer. Faulkner said that the therapist instructed her to continue sessions at home with "special playtime."

Faulkner said that around Christmas 2018, she decided to punish JM for her school suspension by taking away her Christmas. She later decided to remove JM's presents and allow her to earn them back one by one. She denied that she prioritizes Paige over JM.

Paige testified that she had been in a relationship with Faulkner for a little over two years and that they had lived together for a year and a half. She said that she sometimes disciplines JM and had spanked her six months to a year ago, but she said that she no longer thinks spanking is appropriate. Paige works for the Arkansas Department of Community Correction as a parole officer. She said that she had once brought home from work a van with a cage in the back, and JM got into the back, but she denied that she had put JM in the van....