Wakefield v. Wakefield
| Decision Date | 02 December 1998 |
| Docket Number | No. CA,CA |
| Citation | 984 S.W.2d 32,64 Ark.App. 147 |
| Parties | , 64 Ark.App. 3 Gwenda Kaye WAKEFIELD, Appellant, v. Joel David WAKEFIELD and Thomas Wakefield, Appellees. 97-860. |
| Court | Arkansas Court of Appeals |
David Lewis Clark, Amity, for Appellant.
James E. Davis, Texarkana, for Appellee.
Appellant Gwenda Kaye Wakefield appeals an order from the chancery court of Howard County contending that the chancellor erred by finding her in contempt, ordering her to pay appellees' attorney's fees and expert witness fees, and restraining her from seeking psychological or mental-health treatment for her two minor children without prior approval from the Department of Human Services (DHS). We reverse.
Appellee Joel David Wakefield and appellant were divorced on August 9, 1995, and there was incorporated into their divorce decree a separation, child-custody, and property-settlement agreement. By their agreement, custody of their two children, Heather and Kayla, was awarded to appellant, and Joel David Wakefield was granted visitation privileges. The agreement provided that if Joel David Wakefield did not exercise his visitation rights, then the paternal grandparents had the right to exercise them. Appellee Thomas Wakefield is the children's paternal grandfather. Joel David Wakefield lives with his parents, and appellees' visitations take place at their residence.
Appellant testified that about a year after the divorce became final, she sought counseling for Heather from Yvonne Fellers, a licensed clinical social worker, because Heather, then almost three years old, was having nightmares, becoming aggressive, had regressed from toilet training, and was "sexually acting out." In addition, appellant testified that statements made by Heather to her paternal grandmother and to a babysitter raised questions of possible sexual abuse.
Fellers arranged a meeting with Joel David Wakefield on October 15 and informed him of her suspicions of improper sexual touching by Thomas Wakefield, known to Heather as "Pawpaw." Fellers also reported the suspected sexual abuse to DHS. About a week after Fellers reported the possibility of sexual abuse to DHS, DHS conducted a physical examination of Heather at Arkansas Children's Hospital, and no physical signs of sexual abuse were present.
Appellant states that DHS suggested to her, and that appellant suggested to her ex-husband, that they arrange some kind of supervised visitation for the children. Appellant states that she was told by DHS that if she knowingly exposed her children to potential sexual abuse, she would risk having them removed from her custody and placed in foster care. Because her ex-husband would not agree to supervised visitation, appellant felt she had no choice but to deny visitation.
Appellant moved to restrict visitation to a location away from the father's current residence while the investigation was pending, and appellee Joel David Wakefield moved for contempt charges against appellant because she denied unrestricted visitation on October 19 and 20.
A temporary hearing was held on October 30, 1996, before Chancellor Ted Capeheart. Following the hearing, Chancellor Capeheart announced from the bench that he found no basis for appellant's concerns, found her in contempt for denying visitation on October 19 and 20, and ordered her to pay $500 as appellee's attorney fees, but suspended payment on condition that appellant comply with his orders previously entered.
Pursuant to Fellers's suggestion, appellant had been conducting videotaped play therapy of Heather as part of a group parenting program, and after viewing the videotape, Fellers stated that Heather was near a psychotic breakdown and suggested immediate psychiatric evaluations.
On October 31, Dr. Greg Brown, a child psychiatrist, admitted Heather to Charter Forest Health System for five nights, resulting in another denial of appellees' visitation on November 1 and 2. During the time she was in the hospital, Heather was assessed by a clinical neuropsychologist, and she underwent two physical examinations by pediatricians. Heather was discharged on November 5 and diagnosed with posttraumatic stress disorder with continued concerns about sexual-abuse allegations.
On November 13, Judge Capeheart signed an order setting forth the findings that he had announced from the bench at the October 30 hearing. Also, on November 13, Judge Capeheart filed a letter addressed to the parties' attorneys stating that he was recusing from the case because he could not be fair to appellant. The chancellor's letter stated,
I must recuse in this case because I cannot be fair. I suspect the Plaintiff's family has encouraged the Plaintiff to make these accusations to gain an advantage in their visitation dispute. I know too much from past cases involving the family and cannot be fair in this case to Mrs. Wakefield.
On November 14, appellee Joel David Wakefield filed a petition for change of custody and another petition for contempt. Appellant responded with a petition for order of protection, a petition to modify visitation, a petition for contempt due to nonpayment of support, and a petition to set aside the earlier finding of contempt.
A hearing was held on November 26 before Judge Robert Lowery. Appellant testified that before she suspected possible sexual abuse, she had never denied visitation. She stated that she denied visitation because she was fearful that Heather had been abused and would be again, and that the appellees would be angry with Heather "because she was talking and I was afraid for her safety."
She testified that on one occasion following a visitation, Heather appeared to be in pain, pointed toward her vaginal area, and would not sit down in the bathtub. Appellant also testified that once, when Heather was playing with her dolls, she would show the "Pawpaw doll" on top of the "Heather doll." She testified that she admitted Heather to the hospital immediately as her doctor recommended and because Heather's safety was at stake.
Dr. Brown testified that during the time he treated Heather at Charter Forest Health System he saw signs of the possibility of sexual abuse. From the abstract, it appears Dr. Brown testified:
... I felt it was important to investigate things further especially with Heather's reporting from her own mouth who the perpetrator was. The reports from the counseling center showed concerns about a possibly sexually abused three year old who was acting out with aggressive behavior, sleep disturbance, nightmares, and play therapy sessions that pointed towards her having been sexually abused. Heather told me about the nightmares, the trouble sleeping. Heather herself was able to say that she was touched on her body. She wasn't able to say who it was on the first day.... I wrote letters to Judge Capeheart, with copies to DHS and the State Police, saying that I did definitely feel there was evidence that Heather had been sexually abused and had identified her paternal grandfather, Pawpaw.... I do not feel it would be in the best interest of the child to visit the grandparent while there were open concerns about what was happening.
Lorili Sellers, an investigator with the Sex Crimes Division of the Arkansas State Police also testified on appellant's behalf, and did not rule out the possibility of sexual abuse. Yvonne Fellers also testified that although there was no concrete physical evidence, her evaluation was that Heather had been sexually abused.
The appellees presented their own expert witness, Dr. Betty Feir, a clinical psychologist, who diagnosed Heather with posttraumatic stress disorder. Dr. Feir testified that after she watched the videotapes, she felt that Heather's behavior was associated with the upcoming Halloween holiday. Also, she said that Heather's violent behavior was often a repetition of phrases her mother would say, such as, "Do you want me to shut up," which Heather would then repeat, saying, "Shut up." She stated that she had not heard anything or any testimony that would indicate conclusively that there was any abuse. She also testified that the physical examinations Heather had undergone in order to detect possible abuse had been traumatic. She merely suggested that, in her opinion, there were a number of "red flags" that pointed to the possibility that appellant was hysterical and overreacting to reports that Heather had been abused, in the absence of physical evidence.
Dr. Feir stated that she interviewed the appellees and their families and friends when evaluating the possibility of sexual abuse, but she conceded that she had neither evaluated nor interviewed Heather. She testified that even though she did not see any physical signs of sexual abuse, she would not rule out such a possibility. Moreover, she said,
Judge Lowery granted a motion to dismiss all of appellant's motions and petitions, stating that the testimony was speculative and tenuous and that no witness had confirmed any sexual abuse. He denied Joel David Wakefield's motion for change of custody. He then revoked the $500 attorney's fees suspension and awarded an additional $1,000 to Thomas Wakefield in attorney's fees. He required appellant to seek court approval prior to pursuing what he found were speculative, spurious, and totally false claims of sexual abuse. A review hearing was set for December 18.
At the review hearing, appellee Thomas Wakefield was permitted to testify as to his court expenses, stating that he had paid Dr. Feir $3,500 and still owed her $1,050. The chancellor ordered that appellant was not to seek psychiatric treatment for the children without approval from DHS, and that appellant was...
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