Donley v. Donley , 2015 Ark. App. LEXIS 590 ( 2015 )

Cite as 2015 Ark. App. 496
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-93
TEMIKA DONLEY Opinion Delivered September 23, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
SEVENTEENTH DIVISION
[NO. 60PR-13-620]
LAKITCHER DONLEY
APPELLEE HONORABLE MACKIE M. PIERCE,
JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Temika Donley appeals the Pulaski County Circuit Court’s order denying her petition
to terminate Lakitcher (“Kisha”) Donley’s guardianship over Temika’s daughter, M.B. On
appeal, Temika argues that the circuit court applied the wrong legal standard for termination-
of-guardianship cases. Temika additionally argues that the circuit court erred in admitting
Facebook screenshots that were not properly authenticated. We affirm.
M.B. was born to Temika in 2006. On April 9, 2012, Temika’s sister, Kisha,
petitioned for a guardianship of M.B in the Pulaski County Circuit Court. Kisha alleged that
Temika had an abusive relationship with Donald Beasley and that Beasley had also become
abusive toward M.B. On April 17, 2012, the circuit court held a hearing on the petition, and
on May 1, 2012, the court entered an order granting temporary guardianship of M.B. to
Kisha. In the order, the court stated that it found that Temika “is not fit and proper to
Cite as 2015 Ark. App. 496
provide for the safety and welfare of the minor child.”
On July 2, 2012, the parties stipulated to Kisha having permanent guardianship over
M.B. The order entered that day states that “the child in this case is in need of a guardian to
protect her health and welfare.”
On October 2, 2013, Temika filed a petition to terminate Kisha’s guardianship.
Temika alleged that she no longer had a relationship with Beasley and that she could now care
for M.B. The circuit court held a bench trial on the petition on July 3, 2014.
At trial, Dr. Adam Benton, a licensed psychologist, testified about his counseling
sessions with M.B. Dr. Benton stated that M.B. suffers from post traumatic stress disorder as
a result of her exposure to the domestic abuse of Temika by Beasley. He said he treated M.B.
with cognitive-behavioral therapy and that she has made great progress. Dr. Benton further
testified that M.B. and Temika have a healthy relationship; however, he stressed that any
future contact with Beasley or knowledge that Temika and Beasley were communicating
would be detrimental to M.B.’s health.
Temika testified that she had not been in a relationship with Beasley since October
2012 and that, to her knowledge, Beasley lives in Chicago. She admitted that she still attends
church where she and Beasley attended church together and that she saw Beasley in May 2014
at a church picnic but did not speak to him. She also admitted that Beasley had contacted her
through Facebook in May and June 2013, but she blocked him after receiving the
communication.
Temika testified that she graduated from Heritage College in May 2014 with a degree
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in medical-assistant and x-ray technology. She stated that she received a certificate of academic
excellence for maintaining all “A’s” and “B’s” in her courses. She noted that she was currently
employed at the University of Arkansas for Medical Sciences but had been offered a new job
at Arkansas Employee Benefits with employment benefits. She further noted she was leasing
an apartment and had been living there for almost three years. She stated that M.B. has her
own bedroom in the apartment and her own T.V. and computer.
Temika acknowledged that she consented to Kisha’s guardianship of M.B. in 2012. She
realized that M.B. should not be exposed to her abusive relationship with Beasley; however,
she did not think the guardianship would be permanent. She also discussed an incident in
which she and Kisha got into a disagreement over visitation and the police were called. She
further noted other occasions when she and Kisha had disagreements over visitation through
text messages.
On cross-examination, Kisha’s counsel showed Temika screenshots of a Facebook
account. The name on the Facebook account was “Meka Rochelle.” Temika first denied that
the account belonged to her but later admitted that the screenshots depicted her Facebook
account. The screenshots showed that Beasley and Beasley’s mother, Valerie Graves, had
“liked” Temika’s pictures.
Kisha’s counsel then questioned Temika about photos of her that Graves had posted on
Facebook. Temika stated that Graves had taken one photo at a high school graduation
sometime in 2013. She stated that she went to the graduation to see a co-worker’s brother
graduate and that she ran into Graves. She testified that Beasley did not attend the graduation.
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She also testified about a second photo that Graves posted of Temika. Temika stated that the
photo was taken in December 2012.
Kisha’s counsel then presented Temika with screenshots of Beasley’s Facebook page.
The screenshots showed photos of Beasley with several comments from “Meka Rochelle.”
Specifically, “Meka Rochelle” commented
Oooooweee he’s cute. Will you be my chocolate drop?
....
Yea he cute. He had tha big head that day. Lol
....
Okay let me stop. My boo cute!! Lol
....
U must be bored? Still cute!!!
The comments were dated April 17, September 14, and October 5, 2013. Temika testified that
she did not remember making the comments, and Temika’s counsel objected to their
authenticity. The court denied the objection and admitted the screenshots into evidence.
Kisha’s counsel also introduced additional screenshots of Beasley’s Facebook page with
comments from “Meka Rochelle” dated October 25, 2013, and June 10, 2014:
Hey hey hey y’all leave my baby alone!!! Gone boo and represent where u from!!! Lol
....
Lol he ain’t nothing but a flight away!!!! Y’all gone look up and say what she doing
here. That’s my hunnie bun. Lol I gots to stick up fa him
....
Absolutely Beautiful. Love it!!
Temika denied making the comments and further suggested that Beasley used her Facebook
page. She stated that he knew the password to her account. Temika’s counsel again objected
to the authenticity of the screenshots, and the court again denied the objection and admitted
them into evidence. Kisha’s counsel then introduced photos of Temika that Beasley had posted
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on his Facebook page on October 11, 2013, and May 30, 2014. Temika stated that the photos
depicted her, but she did not know why Beasley posted the photos and that she had no control
over his account.
Kisha’s counsel also questioned Temika about a comment from “Meka Rochelle” on
Beasley’s page dated June 7, 2014. Beasley posted that he was traveling to Chicago from Little
Rock, and “Meka Rochelle” responded, “Boo, when are you coming home?” Temika
admitted making the comment but stated that she made it only because she wanted to get
M.B. back and she needed proof that Beasley did not live in Arkansas anymore.
Following Temika’s testimony, Jayla Davis, a counselor at Women and Children First,
testified about her counseling sessions with Temika. She explained that Women and Children
First is a nonprofit domestic-violence shelter that provides education and emotional support
to battered women. She testified that Temika solicited its services in December 2013. She
stated that Temika wants to understand the dynamics of domestic violence and is highly
motivated and determined to end her violent relationship with Beasley. She stated that Temika
has made progress but noted “there is still work to be done.” She testified that she and Temika
discussed her June 7, 2014 comment on Beasley’s Facebook page and that Temika expressed
remorse for making the comment. Davis thought Temika acted courageously in admitting her
mistake. She also thought Temika would continue to be successful in maintaining distance
from Beasley if she kept her support system of family, friends, and counselors.
Next, Temika’s friend, Jennifer Holloway, testified that Temika was not in a
relationship with Beasley in June 2014. She noted that she and Temika had discussed her
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relationship with Beasley and that she understood it was a “pretty bad relationship.” She also
stated that Temika reported to her that Beasley had used Temika’s Facebook account. She
further testified about an incident where Beasley commented on another man’s Facebook
account asking whether the man had a romantic relationship with Temika. She thought that
Temika deleted her Facebook account or that Temika blocked Beasley.
Temika and Kisha’s mother, Clarice Cooper, testified that in 2012, she thought Kisha’s
guardianship of M.B. was necessary, but she did not think it was necessary at the time of the
hearing. She stated that she had not seen Temika with Beasley since 2012. She also discussed
the altercation between Kisha and Temika when the police were called. She stated that the
incident escalated because of an argument between her and Kisha, not Temika.
Following Cooper’s testimony, Temika rested her case. Kisha then asked the court to
dismiss Temika’s petition to terminate the guardianship. She argued that Temika failed to show
that termination of the guardianship was either in the best interest of M.B. or that the
guardianship was no longer necessary. The court took the motion under advisement.
On July 16, 2014, the court issued a letter opinion stating that it planned to grant
Kisha’s directed-verdict motion. On July 17, 2014, Temika filed a motion for reconsideration
of her petition to terminate the guardianship. On August 11, 2014, the court entered an order
granting Kisha’s directed-verdict motion and dismissing Temika’s petition. The court found
that Temika “failed to establish . . . by a preponderance of the evidence that the guardianship
should be terminated.” The court further noted that Temika “remains unsuitable for the
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custody of [M.B.]” The court did not rule on Temika’s motion for reconsideration. Temika
then filed this timely appeal.
On appeal, Temika argues that the circuit court applied the wrong legal standard for
termination-of-guardianship cases. Specifically, Temika asserts that she should have been
afforded the presumption of a fit parent—that she acts in M.B.’s best interest and that the
guardian, Kisha, should have had the burden to prove that termination is not in M.B.’s best
interest. Temika further asserts that by applying the wrong legal standard, the court erred in
granting Kisha’s directed-verdict motion.
Temika’s argument is misplaced. In its May 1, 2012 temporary-guardianship order,
following a hearing on the merits, the circuit court found that Temika “is not fit and proper
to provide for the safety and welfare of the minor child.” Temika asserts that the fitness
determination from the temporary-guardianship order is not applicable here because the court
subsequently entered a permanent-guardianship order that did not mention Temika’s fitness.
We do not agree. The circuit court did not deem Temika a fit parent in the permanent-
guardianship order. The parties stipulated to the permanent guardianship, and the court entered
the order without a hearing. Further, in its August 2014 order dismissing Temika’s petition to
terminate the guardianship, the court found that Temika “remains unsuitable for the custody
of [M.B.]” Thus, the record shows that the circuit court deemed Temika an unfit parent, and
there is nothing in the record to show that the court changed that finding. Accordingly, the
circuit court did not err in placing the burden of proof on Temika and granting Kisha’s motion
for a directed verdict.
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Temika next argues that the circuit court erred in admitting into evidence the
screenshots of the comments “Meka Rochelle” made on Beasley’s Facebook page and the
photos of Temika that Beasley posted on his Facebook page. Temika asserts that the
screenshots lacked authenticity because Temika did not claim ownership over the comments
or photos. On appeal, we will not reverse a trial court’s ruling on the admission of evidence
absent an abuse of discretion. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). In evidentiary
determinations, a trial court has wide discretion. Id.
Authentication of a document is a condition precedent to admissibility. Id.; Ark. R.
Evid. 901 (2014). Authentication is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims. Ark. R. Evid. 901(a). One acceptable method
of authentication is the testimony of a witness with knowledge that a matter is what it is
claimed to be. Ark. R. Evid. 901(b)(1). Another acceptable method is evidence of appearance,
contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction
with circumstances. Ark. R. Evid. 901(b)(4). Our supreme court has held that text messages
are properly authenticated when circumstantial evidence ties the party to the messages. Gulley
v. State, 2012 Ark. 368, 423 S.W.3d 569; see also Todd v. State, 2012 Ark. App. 626, 425
S.W.3d 25.
Here, we hold that the circuit court did not abuse its discretion in admitting the
screenshots of the comments and photos. Temika testified that “Meka Rochelle” was her
Facebook account. She admitted authoring the June 7, 2014 comment on Beasley’s Facebook
account. She also testified that she was depicted in the photos on Beasley’s account. This
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testimony sufficiently ties her to the comments and the photos. Even though Temika did not
remember making the comments, suggested that Beasley used her account to make the
comments, and noted that she had no control over Beasley’s account, her denials go to the
weight to be given to the evidence, not admissibility. Accordingly, we hold that the circuit
court did not abuse its discretion in admitting the Facebook screenshots.
Affirmed.
HARRISON and BROWN, JJ., agree.
Dustin A. Duke and Margaret R. Ward, Center for Arkansas Legal Services, for
appellant.
Robertson Law Firm, PLLC, by: Chris Oswalt, for appellee.
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