Cassey Bassett v. Jeremy Emery Kendra Emery And Dusty Emery , 2022 Ark. App. 470 ( 2022 )

Cite as 2022 Ark. App. 470ARKANSAS COURT OF APPEALS
DIVISIONS I, III & IV
No. CV-21-573
Opinion Delivered November 16, 2022
CASSEY BASSETT
APPELLANT APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT
V. [NO. 28DR-21-70]
HONORABLE TONYA M.
JEREMY EMERY; KENDRA EMERY; AND ALEXANDER, JUDGE
DUSTY EMERY
APPELLEES REVERSED AND REMANDED
LARRY D. VAUGHT, Judge
Cassey Bassett appeals the decision of the Greene County Circuit Court denying her
motion to modify custody and visitation of her three-year-old child, herein referred to as Minor
Child 1. On appeal, Cassey has abandoned any claim regarding custody; she appeals only the
court’s denial of her petition to establish visitation. Cassey argues that, in analyzing her request
for visitation, the circuit court improperly considered the petition to adopt Minor Child 1,
which appellees Kendra and Jeremy Emery1 filed in a separate court. She contends that the
circuit court erroneously applied the legal standards relevant to adoption rather than the law
governing visitation. We reverse and remand.
1DustyEmery is Minor Child 1’s biological father. Jeremy is Dusty’s brother. Jeremy and
Kendra are married and have had custody of Minor Child 1 since 2018.
In October 2017, the Arkansas Department of Human Services (DHS) removed Minor
Child 1 from Cassey’s custody due to inadequate supervision and Cassey’s drug use.2 Minor
Child 1 was then adjudicated dependent-neglected. A year later, a permanent-custody and
closure order was entered awarding custody of Minor Child 1 to Jeremy and Kendra. The order
was silent regarding visitation.
In the years following the entry of the permanent-custody order, Cassey worked to
remedy the problems that caused her to lose custody of her children. At the time of the custody
hearing that gave rise to this appeal, Cassey had stable employment, a clean and appropriate
home, and safe and reliable transportation. She volunteered regularly with a faith-based
women’s-recovery program, and she had started taking community-college courses to further her
education. She had also regained custody of three of her other children, and she had no pending
criminal charges.
The evidence at the hearing revealed that, starting in 2020, Cassey began sending money
to the Emerys for Minor Child 1’s support. Cassey testified that she tried, on numerous
occasions, to ask the Emerys for an opportunity to visit with Minor Child 1, but they ignored
her messages and calls. Cassey then filed a petition for modification of custody on February 26,
2021. She sought full custody of Minor Child 1 or, alternatively, requested that a visitation
schedule be set by the court.
At the hearing, there was conflicting testimony regarding the last time Cassey had seen
Minor Child 1, but the parties appear to agree that it was at least two years before Cassey filed
2Cassey also lost custody of four other children. Three of those children have been
returned to her custody, and she exercises visitation with one child. None of Cassey’s other
children are a party to this appeal.
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the motion to change custody. The Emerys acknowledged that they had “decided that it was
best” for Minor Child 1 not to have any contact with Cassey. Minor Child 1 calls the Emerys
“mom and dad,” and the Emerys thought that visitation with Cassey would only confuse the
child. Jeremy stated that Cassey hadn’t tried contacting them about seeing Minor Child 1 “unless
it was a special day, a birthday or a holiday; that was it.”
A month after Cassey filed her petition for modification, the Emerys filed, in a different
court, a petition to adopt Minor Child 1. The cases were not consolidated, and a hearing was
held on Cassey’s petition to modify custody or establish visitation on July 19, 2021. At the
hearing, the Emerys relied heavily on their pending adoption petition as a reason to deny
Cassey’s requests for custody and visitation. They argued that it would be confusing to the child
to establish a new relationship and routine only to drastically change the child’s life again with
the adoption, which they argued was likely to be granted. The Emerys urged the court to find
that, because there was a likelihood that the adoption would be granted, it would not be in
Minor Child 1’s best interest to change custody or establish a visitation schedule.
The circuit court agreed and, as a result, cited the legal standards governing petitions to
adopt a child without the consent of the biological parent in its analysis of Cassey’s petition to
change custody or establish visitation.3 Following the hearing, the court denied the petition for
3Arkansas Code Annotated section 9-9-207 (Repl. 2020) discusses when consent to an
adoption by a biological parent is unnecessary. Pursuant to section 9-9-207(a)(2), a parent’s
consent to adoption is not required of a parent of a child in the custody of another if the parent
for a period of at least one year has failed significantly without justifiable cause to communicate
with the child or to provide for the care and support of the child as required by law or judicial
decree. Even when parental consent is unnecessary, the court must still determine if granting the
adoption is in the best interest of the child. Racine v. Nelson, 2011 Ark. 50, at 16, 378 S.W.3d 93,
102.
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custody, stating that Minor Child 1’s need for stability supports the finding that it is in the
child’s best interest to remain in the Emery’s custody. The court noted that Arkansas law does
not require a biological parent’s consent to the adoption of his or her child if more than a year
has passed without the parent having meaningful contact with the child or providing meaningful
support. Regarding visitation, the court stated that it was “following the law, considering the
evidence presented, and considering the impressions of the court based on the testimony
presented.” In the order, the court’s denial of Cassey’s request for visitation includes specific
findings that directly relate to the elements necessary to grant an adoption in Arkansas without
the consent of the biological parent, such as its finding that there had been periods of a year or
more in which Cassey did not have meaningful contact with Minor Child 1 and did not provide
meaningful support.
Cassey now appeals the court’s denial of her request to establish visitation. On appeal,
she argues that the circuit court improperly decided the visitation issue on the basis of an
erroneous application of the legal standards applicable to adoption, not visitation. Cassey’s
request for relief in her appellate brief does not seek reversal of the denial of her petition for
custody; it only asks that we reverse the court’s order and remand the case to establish at least
some minimal visitation. Because we hold that the court erroneously applied the wrong legal
standard in this case, we reverse and remand for the court to decide the visitation issue using
Arkansas law governing a biological parent’s right to visitation.
Child-visitation cases are reviewed de novo on the record and will not be overturned
unless clearly erroneous. Phillips v. Phillips, 2014 Ark. App. 486, at 2, 442 S.W.3d 901, 902. The
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permanent-custody and closure order, which was in place prior to Cassey’s petition, was silent
as to visitation. Arkansas Code Annotated section 9-13-101(b)(1)(A)(vii) provides that:
(a) A parent who is not granted sole, primary, or joint custody of his or her child is
entitled to reasonable parenting time with the child unless the court finds after a hearing
that parenting time between the parent and the child would seriously endanger the
physical, mental, or emotional health of the child.
(b) At the request of a party, a court shall issue a written order that:
(1) Is specific as to the frequency, timing, duration, condition, and method of
scheduling parenting time with a parent who is not granted sole, primary, or joint custody
of his or her child; and
(2) Takes into consideration the developmental age of the child.
Ark. Code Ann. § 9-13-101(b)(1)(A)(vii) (Supp. 2021). Here, Cassey was not given statutory
visitation rights, and the court never made a finding that visitation would endanger Minor Child
1. While Cassey did not argue, either below or on appeal, that the circuit court’s order violates
section 9-13-101, she did preserve the inverse argument: that the circuit court erroneously
applied the wrong standard when it cited Arkansas law governing nonconsensual adoption. We
cite section 9-13-101, therefore, to illustrate Cassey’s point that Arkansas law contains legal
standards governing visitation but that the circuit court in this case erroneously applied the
adoption-law elements instead.
We recognize that fixing visitation rights is a matter that lies within the sound discretion
of the circuit court, and the main consideration in making judicial determinations concerning
visitation is the best interest of the child. Hudson v. Kyle, 365 Ark. 341, 344, 229 S.W.3d 890,
892–93 (2006). The Emerys argue—and the dissenting opinions would hold—that the circuit
court properly considered the pending adoption petition as part of its best-interest analysis. We
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do not doubt that the circuit court was attempting to act in the child’s best interest. We note,
however, that the United States Supreme Court has recognized that parents have a fundamental
liberty interest in the care, control, and custody of their own children, Troxel v. Granville, 530
U.S. 57, 66 (2000), and Arkansas has developed both statutory and case law governing the
circumstances under which a biological parent can be denied visitation. Ark. Code Ann. § 9-13-
101(b)(1)(A)(vii); Buckley v. Buckley, 73 Ark. App. 410, 415–16, 43 S.W.3d 212, 215 (2001);
Hawn v. Hawn, 8 Ark. App. 69, 73, 648 S.W.2d 819, 821 (1983); Lumpkin v. Gregory, 262 Ark.
561, 564, 559 S.W.2d 151, 153 (1977). In Hawn, we explained that,
[u]ndoubtedly, there are cases in which circumstances warrant the termination of a
parent’s visitation rights. However, such action is a drastic one which our trial courts
have cautiously employed and which our appellate courts have critically reviewed.
8 Ark. App. at 73, 648 S.W.2d at 821. By statute, Arkansas lawmakers have determined the
threshold necessary for denying a biological parent the right to visit his or her own child: a
finding by the circuit court that visitation between the parent and child “would seriously
endanger the physical, mental, or emotional health of the child.” Ark. Code Ann. § 9-13-
101(b)(1)(A)(vii)(a).
In this case, the circuit court failed to apply that framework when evaluating Cassey’s
request for visitation. Instead, under the broad umbrella “best interest,” it attempted to predict
the outcome of the Emerys’ pending petition to adopt Minor Child 1. We reverse the circuit
court’s denial of Cassey’s petition to establish visitation with Minor Child 1, and we remand the
case for the circuit court to decide the visitation issue using the appropriate legal standards.
Reversed and remanded.
VIRDEN, GLADWIN, BARRETT, and WHITEAKER, JJ., agree.
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KLAPPENBACH, GRUBER, MURPHY, and BROWN, JJ., dissent.
MIKE MURPHY, Judge, dissenting. I disagree with the majority that this case should be
reversed and remanded. The majority declines to answer Cassey’s specific arguments as they are
presented on appeal, and instead crafts a remedy for her, in derogation of the circuit court’s
supported best-interest finding. I would affirm.
The majority cites the visitation statute, Ark. Code Ann. § 9-13-101(b)(1)(A)(vii),
reasoning that the circuit court erred by not considering it in its denial of visitation. Cassey never
once cited this statute to this court or to the court below. She is bound by the scope and nature
of the arguments made at trial, Rudder v. Hurst, 2009 Ark. App. 577, at 13, 337 S.W.3d 565,
574, and to say the court erred for failure to make a finding that visitation “would seriously
endanger the physical, mental, or emotional health of the child” would be to make an argument
for the appellant that she did not make for herself. We do not research or develop arguments
for an appellant. Davis v. Davis, 2013 Ark. App. 180, at 6.
Furthermore, failure to make an explicit finding in this instance is not fatal, because
unless the contrary can be shown, we presume that the circuit court acted properly and made
such findings of fact as were necessary to support its judgment. Wyatt v. Wyatt, 2018 Ark. App.
177, at 7, 545 S.W.3d 796, 802. So, while the circuit court never cited the visitation statute in
its order, it also never cited the adoption statute. Instead, it discussed some elements from both
in support of its determination—a determination that gets the benefit of the doctrine of implied
presumption. The fixing of visitation rights is a matter that lies within the sound discretion of
the trial court. Hudson v. Kyle, 365 Ark. 341, 344, 229 S.W.3d 890, 892–93 (2006). The main
consideration in making judicial determinations concerning visitation is the best interest of the
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child. Id. On a de novo review, I would hold that the circuit court did not clearly err by
considering elements of the contested adoption statute as part of its analysis in denying
visitation.
Cassey made two arguments to this court. First, that the circuit court improperly
considered the upcoming adoption and factors pertaining to adoptions wherein parental
consent is unnecessary in denying her petition for visitation. And second, that even if it were
appropriate for the court to consider the adoption, the evidence demonstrates that her failure
to communicate with or provide support for the child for more than a year would not be a
significant failure without justifiable cause.
Cassey never once objected below to evidence of, or arguments concerning, the adoption
proceedings. Nor did she once argue below that the court may not consider the upcoming
adoption in its visitation analysis. We will not review a matter on which the trial court has not
ruled, and the burden of obtaining a ruling is on the movant; matters left unresolved are waived
and may not be raised on appeal. Stell v. Stell, 2021 Ark. App. 478, at 2, 638 S.W.3d 855, 857.
A circuit court is allowed to consider everything properly before it. This record supports the
circuit court’s findings that some of the elements of an adoption under Arkansas Code
Annotated section 9-9-207 are present. It was within the circuit court’s province to determine
what weight to give that evidence, regardless of mitigating factors. Ford v. Ford, 347 Ark. 485, 65
S.W.3d 432 (2002).1
1To be abundantly clear,the adoption case will be its own proceeding with its own evidence
to be weighed by another court. For whatever this dissent is worth, it should absolutely not be
read to support any particular outcome.
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To reverse and remand here would be to ignore the circuit court’s concerns for the minor
child’s well-being. The circuit court explained why it did not want to grant visitation at this time:
[T]he Court doesn’t want to . . . start something when this child’s almost four years old.
So [Cassey] will still be allowed to appear and defend in the adoption proceeding. But as
for now, the Court will not be allowing visitation given the fact that the amount of time
that has transpired[.]
The polestar in matters concerning children is what is in the best interest of the child.
This record established that there were some elements that could support an adoption: the child
was young, granting visitation would be confusing to the child, and the child had absolutely no
relationship with her biological mother (regardless of fault). The court concluded that it would
be in the best interest of the young child to maintain the status quo at least until a determination
on the adoption petition could be considered. I would not say this was clear error, especially
considering that Cassey made no argument that she was entitled to reasonable parenting time
as a matter of right absent the specific findings set forth in Arkansas Code Annotated section 9-
13-101(a).
I would affirm.
Klappenbach, Gruber, and Brown, JJ., join.
Scott Emerson, P.A., by: Scott Emerson, for appellant.
Benson Law Firm, P.A., by: S. King Benson; and Brett D. Watson, Attorney at Law, PLLC, by:
Brett D. Watson, for appellee.
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