Huskey v. Huskey
| Decision Date | 12 November 2015 |
| Docket Number | No. CV-14-937,CV-14-937 |
| Citation | 2015 Ark. App. 639 |
| Parties | ROBYN HUSKEY AND JANICE MARIE APPELLANTS v. BILLY HUSKEY APPELLEE |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE DREW COUNTY CIRCUIT COURT
AFFIRMED
Appellants Robyn Huskey, mother of A.H. (born April 7, 2010), and Janice Marie, A.H.'s maternal grandmother, appeal the Drew County Circuit Court's order of guardianship filed August 12, 2014, the corresponding "Family in Need of Services" (FINS) order filed August 19, 2014, and the circuit court's order denying their motion to recuse and change venue. Appellants set forth four points on appeal, claiming that (1) appellant Robyn Huskey's constitutional rights were violated because her child was removed from her without a finding that she was unfit; (2) when appellant Robyn Huskey filed her motion to terminate the guardianship on March 12, 2013, she was entitled to custody because she had not been declared unfit, citing In re Guardianship of S.H., 2015 Ark. 75, 455 S.W.3d 313; (3) the trial court erred in denying their motion to recuse; and (4) the guardianship order "is void because of case law, it was based on a void order without due process, and appellee Billy Huskey, [paternal grandfather,] is an unfit guardian." We affirm.
Even though A.H. was born in 2010, the record indicates that the parties were involved in domestic litigation in Crittenden County beginning in 2009, when appellant Janice Marie obtained an order granting her custody of appellant Robyn Huskey's three children from a relationship previous to Jeremy Huskey, A.H.'s father.1 Robyn received reasonable visitation with those three children outside the presence of Jeremy. That case was transferred to the Drew County Circuit Court on November 9, 2009. On September 12, 2011, an agreed order was filed appointing Janice as guardian of the three children.
Also in the Drew County Circuit Court on May 14, 2010, Jeremy filed a complaint for divorce against Robyn, and he petitioned for custody of A.H. Robyn answered and counterclaimed for custody and supervised visitation for Jeremy. A temporary order was filed on July 26, 2010, awarding joint legal and physical custody of A.H. to both parents. On July 30, 2010, Jeremy filed an emergency motion for sole custody alleging that Robyn had been ticketed for hazardous driving with A.H. in the car; that she had offered him extended visitation in exchange for money because she claimed that she had no place to live and had no money for gas or food; that all of Robyn's belongings were in her vehicle; and that Robyn's mother had called him to say that she had reported Robyn missing. He alleged that, when he gave her money to leave, Robyn became irate, hit him with her phone, and tried to jump out of the truck with A.H. He claimed that the police were called. However, onOctober 25, 2010, an agreed order was filed wherein the ex parte temporary order of protection and the divorce action were dismissed.
Another divorce action was filed in the Drew County Circuit Court on December 10, 2010, wherein Robyn sought a divorce and custody of A.H., and she alleged that Jeremy was a registered sex offender and was physically violent. An emergency ex parte order was filed on the same date awarding custody of A.H. to Robyn. Jeremy answered Robyn's complaint and counterclaimed for divorce, claiming that Robyn was unfit to have custody and asking that he be granted custody, with Robyn having supervised visitation. He claimed that Robyn had a problem with alcohol and severe psychological and emotional disorders. A temporary order was filed on February 2, 2011, awarding joint custody, with the parties having an alternating-weekend and weekday schedule of physical custody. The parties were ordered to attend individual counseling on a regular basis. The order also provided that, if the parties chose to reconcile without written confirmation from both counselors that the parties had adequately addressed their personal and marital issues, custody of A.H. would be placed with the Arkansas Department of Human Services (DHS).
On February 17, 2011, Jeremy filed a motion for emergency change of custody and motion for contempt, alleging that Robyn had kept A.H. from him and claiming that A.H. was sick. The attorney ad litem filed a motion for emergency hearing and change of custody on March 1, 2011, claiming that both parties had been arrested on February 25, 2011, mutually alleging that domestic violence had occurred in A.H.'s presence. On March 2, 2011, an order was filed that modified the temporary agreed order by awarding custody toKathy Johnson, A.H.'s , paternal aunt, pending further orders. Also pending further order, the parents were granted no contact with Kathy Johnson or A.H.
On April 22, 2011, Kathy Johnson and Billy Huskey, paternal grandfather of A.H. and brother of Kathy Johnson, co-petitioned for joint custody of A.H. in the pending divorce case. On May 18, 2011, Kathy and Billy filed a petition for Billy to be appointed guardian of the person and estate of A.H. in a guardianship case filed in the Drew County Circuit Court, Probate Division. Robyn and Jeremy filed their consent to the guardianship on May 24, 2011.
On September 9, 2011, the guardianship petition was transferred to the juvenile division of the Drew County Circuit Court. A FINS order was filed on September 26, 2011, setting a review hearing for November 3, 2011. A FINS order filed November 3, 2011, reflects that the case was reviewed, and another review hearing was set for January 26, 2012.
On January 13, 2012, Billy filed a petition for custody, claiming that he needed an order granting him custody for the purpose of satisfying his medical-insurance carrier. He claimed that the child would remain in Kathy's care and custody, but stated that the child currently spent time "back and forth" with him and Kathy. An order granting Billy temporary custody of A.H. was filed on January 18, 2012. A FINS order filed February 16, 2012, reflects that a review hearing was held and that Billy had received custody for insurance purposes and that Kathy continued to have physical custody. An order of joint custody was filed on March 9, 2012, awarding custody to both Kathy and Billy.
On March 12, 2012, Robyn filed a petition to "set aside guardianship" and for permanent custody, claiming that she had undergone counseling and was in a stable environment. Alternatively, she asked that Janice be appointed guardian of A.H. Kathy and Billy responded, claiming that neither Robyn nor Janice was fit for guardianship or custody, and stating that custody should remain with them.
An order was filed on September 21, 2012, wherein the circuit court found that Kathy and her husband, Jere Johnson, had been primarily responsible for the day-to-day care of A.H. since February 25, 2011. The order states, "[Kathy] was appointed temporary guardian of the person and has nurtured and provided stability for the minor and stands ready, willing and able to continue said guardianship." Finding that the relationship with Kathy was in the child's best interest, Jere and Kathy, husband and wife, were appointed coguardians of A.H.'s person. The court prohibited Robyn and Jeremy from having any face-to-face contact with A.H. "until such time as each undergoes intensive therapy or counseling with a licensed therapist/counselor for their issues." The trial court reasoned that "both parents" had exhibited "willful and obvious" disregard for past court orders and that they "continued to engage in conduct that [was] detrimental to the best interest of the child." The parents were granted telephone visitation. The parties were warned that if a violation occurred, A.H. would be placed in the custody of DHS. Janice and A.H.'s siblings were granted unsupervised day visits when they were in Drew County, as long as Robyn was not present. Billy was appointed guardian of A.H.'s estate, and his visitation was to be supervised by either Jere orKathy. Finally, the trial court ordered that if the coguardians allowed any unauthorized visitation with the child, A.H. would be placed in DHS custody.
A FINS order reflecting that the case had been reviewed and setting a review hearing for February 28, 2013, was filed on December 27, 2012. Another FINS order reflecting that the case had been reviewed and would be reviewed again on June 11, 2013, was filed on May 28, 2013.
Robyn and Jeremy were divorced in the Drew County Circuit Court on June 11, 2013. The decree was signed by both Robyn and Jeremy, and it provided, "The parties have one minor child, A.H., whose custody is being determined under the Jurisdiction of Honorable Teresa French's (juvenile division) court." On July 19, 2013, by agreement among Kathy, Billy, and Margie Savage, paternal grandmother of A.H., an order of custody and grandparent visitation was filed, granting Kathy legal and physical custody of A.H., and not allowing Jeremy or Robyn to have contact. Billy was granted unlimited, unsupervised visitation. The order also set forth visitation for Margie Savage.
At least four FINS orders were filed reflecting review hearings and continuances between September 18, 2013, and February 2014. The FINS order filed on February 11, 2014, reflects as follows:
The Court on January 28, 2014, close [sic] this case. The Court finds that the orders of custody shall remain as previously ordered, visitation with Mr. Billy Huskey shall remain as previously ordered, and the NO CONTACT order with the parents shall remain in full force and effect.
On May 1, 2014, Billy filed a petition for guardianship of the person and estate of A.H., alleging that Kathy had been awarded custody in the past, and that he had been grantedunlimited, unsupervised visitation. He claimed that, as a practical matter, A.H. spent all of her time with him, and he attended to her every need. Kathy and Jeremy...
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