Robbins v. State, CA 02-340.

• Decision Date: 18 December 2002
• Docket Number: No. CA 02-340.,CA 02-340.
• Citation: 92 S.W.3d 707,80 Ark. App. 204
• Parties: Heather ROBBINS v. STATE of Arkansas.
• Court: Arkansas Court of Appeals

Page 707

92 S.W.3d 707

80 Ark. App. 204

Heather ROBBINS v. STATE of Arkansas.

No. CA 02-340.

Court of Appeals of Arkansas, Divisions IV, I, and II.

December 18, 2002.

Robert A. Ginnaven, III, Fayetteville, for appellant.

No response.

KAREN R. BAKER, Judge.

Appellant, Heather Robbins, appeals from an order by the circuit court, juvenile division, placing permanent custody of her daughter, Jessika, with the child's paternal grandparents. On appeal, she argues that there was no evidence to support the court's finding that awarding custody of the juvenile to the grandparents was necessary to protect the health and safety of the juvenile. We reverse.

Appellant and her husband were separated for approximately three years, and both parties shared custody of their child, Jessika, on their own terms. Although the two had not divorced, they each maintained relationships with other people. Heather's partner was Keegan Stahl. In November 2000, Jessika's father caused the filing of a FINS petition based upon allegations by his girlfriend's sister that Keegan Stahl was sexually abusing Jessika. At an emergency hearing on November 7, 2000, the court granted temporary custody to Jessika's father. At a FINS adjudication hearing on November 16, 2000, the judge ordered that temporary custody remain with the father. At that hearing, Jessika's father testified that he had taken Jessika to the hospital when he learned of the possible sexual abuse; however, no evidence of sexual abuse was found. After an interview with a detective, Jessika's father was told that there was not enough evidence to proceed with a sexual abuse case. Heather testified at the hearing that she had previously lived with her mother, but that she had moved in with her uncle, who lived alone, the night before. She also stated that she was working at Chick-Fil-A and had been employed there about a month and a half. While in her father's custody, Jessika was taken by him to live with her paternal grandparents in Keifer, Oklahoma.

At a review hearing on August 6, 2001, the judge placed temporary custody of Jessika with her paternal grandparents. Jessika's father testified that the reason he had taken Jessika to live with his parents was that he and his girlfriend had "gotten kicked out" of their apartment for fighting. At this same hearing, Heather testified that she and Keegan Stahl were no longer together, and he had been out of the picture since May. At the conclusion of the hearing, the trial judge stated that the reason for giving Jessika's father custody was due to the allegations of abuse by Stahl; however, that problem had remedied itself because he was no longer in the picture. Nonetheless, due to Jessika's father getting kicked out of his apartment, the trial judge placed custody with the paternal grandparents and ordered DHS to conduct a check of Heather's home, as well as Jessika's father's and the grandparents' homes.

The custody hearing was set for September 4, 2001. At that hearing, Heather testified that she had gotten her life together. She no longer had a relationship with Keegan Stahl, and she had a stable household. She also testified that she was currently living with her uncle, although she had previously moved back in with her mother again. She also had stable employment at Braum's, and she was getting a stable form of transportation that afternoon. She was fired from her previous job of cleaning houses because she did not have transportation. She acknowledged that she had not notified DHS of her latest move, but that she planned to do so in order for DHS to conduct a check of her new home per the judge's order.

Jessika's paternal grandmother testified that Jessika was living with her because Jessika's father was kicked out of his apartment; however, she was willing to let Jessika live with her. She stated that Jessika has problems with separation after her weekly visits with her mother; visitations were only allowed for one hour per week. The trial judge concluded that both of Jessika's parents lacked stability and awarded permanent custody to Jessika's paternal grandparents. Heather was given visitation every other Tuesday for two and one half hours, and each parent was ordered to pay the minimum child support. The FINS case was closed by this order.

Arkansas Code Annotated section 9-27-328(b) (Supp.1999) provides in pertinent part that:

(b) When the court orders a juvenile removed from the custody of a parent, guardian, or custodian and placed in the custody of the department or other licensed agency responsible for the care of juveniles or with a relative or other individual, excluding commitments to youth services centers or juvenile detention facilities, the court shall make these specific findings in the order:

(1) Whether the removal of the juvenile is necessary to protect the health and safety of the juvenile, and the reasons therefor;

(2) Which family services were made available to the family before the removal of the juvenile;

(3) What efforts were made to provide those family services relevant to the needs of the family before the removal of the juvenile, taking into consideration whether or not the juvenile could safely remain at home while family services were provided;

(4) Why efforts made to provide the family services described did not prevent the removal of the juvenile;

(5) Whether efforts made to prevent the removal of the juvenile were reasonable, based upon the needs of the family and the juvenile; and (6) Whether the removal is in the best interest of the juvenile.

In the case before us, the trial judge's order consisted of the following written findings:

[P]lacement of Jessika Robbins, dob 4/14/97, with her grandparents, Kathy and Steve Robbins, was necessary to protect the health and safety of the juvenile due to both parents' instability. The Court further finds the following: that DHS provided services to the family before custody was placed with the grandparents, that DHS was ordered to visit the mother's home before this review hearing but mother had moved three days before the review and did not notify DHS to enable the department to visit her home; that the efforts of DHS were reasonable; that due to the instability of both parents and the lack of a home study on mother's home due to mother's failure to advise DHS, placement of custody of the juvenile with the grandparents is in the best interest of the juvenile.

It is clear from the order on its face that the trial judge failed to make the written findings required by the statute. Further, the evidence in the case does not support the findings that were made in the order. First, there is no evidence as to the reasons why it was necessary to remove Jessika in order to protect her health and safety. Second, there is no evidence of services offered to the family. There is no evidence of any assistance in areas such as job placement, housing, or transportation. Consequently, there was no evidence of why those services failed or the reasonableness of any services provided. The mother in this case was initially deprived of custody due to the allegation of sexual abuse of Jessika by her boyfriend. This allegation was never proven. The "lack of stability" relied on by the trial judge in her findings is apparently a reference to the fact that the mother had changed jobs and residences; however, the State saw no need to deprive her of the custody of her other infant daughter, Jessika's half-sibling, due to health and safety issues. Thus, even if the trial judge had made the written findings required by the statute, there is no evidence to support those findings.

The order appealed from in this case is an order granting permanent custody to a third party. This is evident from the trial judge's award of permanent custody, visitation, and child support, and her closing of the FINS case.¹ Awarding permanent custody to a third party is analogous to a permanent guardianship. As a general rule, there must be a finding of unfitness of the natural parents in order to give custody to a third party. See Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Greening v. Newman, 6 Ark.App. 261, 640 S.W.2d 463 (1982); Parks v. Crowley, 221 Ark. 340, 253 S.W.2d 561 (1952).

It is well settled that our law establishes a preference for the natural parent in third-party custody cases and that preference must prevail unless it is established that the natural parent is unfit. See Schuh, supra; Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988); Perkins v. Perkins, 266 Ark. 957, 589 S.W.2d 588 (1979); Greening, supra. This preference applies in guardianship cases as well. See Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000) (holding that a preference in Ark.Code Ann. § 28-65-204 (Supp. 2001) is given to the natural parent if that parent is determined to be suitable and qualified by the probate court).

In Schuh, our supreme court reversed the decision of the trial judge in the absence of a finding that the mother was an unfit parent and, on remand, directed the trial court to the very section of the statute that is at issue in the case before us, making it clear that there must first be a finding of unfitness of the natural parents before awarding permanent custody to a third party. Generally, the prime concern and controlling factor in child custody cases is the best interest of the child. Schuh, supra, (citing Tucker v. Tucker, 207 Ark. 359, 180 S.W.2d 571 (1944); Jones v. Jones, 13 Ark.App. 102, 680 S.W.2d 118 (1984)). When a third person seeks to deprive a parent of custody, she cannot do so without first proving that the parent is not a suitable person to have the child. Id. (citing Riley v. Vest, 235 Ark. 192, 357 S.W.2d 497 (1962)). There was no finding in this case that Jessika's natural parents were unfit; moreover, no such finding could be supported by the evidence in this case.

In Schuh, our supreme court stated that:

The law recognizes...