Hicks v. Cook , 103 Ark. App. 207 ( 2008 )

Robert J. Gladwin, Judge.

Appellant Andrea Hicks appeals the custody order filed August 31, 2007, in Chicot County Circuit Court. She contends the trial court erred in awarding custody of her son to appellee Joshua A. Cook, the biological father, impermissibly basing the decision on its perceptions of her religious preferences and mental health. Giving special deference to the trial judge’s ability to evaluate and judge the credibility of the witnesses, we affirm the trial court’s order.

Facts

The child, a two-year-old boy, was bom out of wedlock on January 17, 2005, and the biological father’s name was placed on the birth certificate. The father voluntarily paid child support to appellant and enjoyed liberal visitation with his son. On February 6, 2007, the father filed a custody petition. At the custody hearing held August 9, 2007, the father testified he had been remarried in February 2007, that he fives in Smackover, Arkansas, that his new wife has two daughters, and that he has joint custody of a daughter with an ex-wife, to whom he pays $400 per month in child support.

The father testified about dog bites or wounds on the boy’s shoulder, terrible diaper rash, dirty fingernails and toenails, a bad earwax condition, and some sort of fungus on the child’s face, all of which were discovered by him at the same time. These discoveries prompted the custody petition. Further, the father testified about all the family that five around him, the access to parks and a good preschool in Smackover, and the willingness of his family to help. His grandmother and in-laws each testified that he is a great father and that they would be willing to help if he were awarded custody. His ex-wife, the mother of his daughter, testified that he is a great father and that she and her new husband send the new husband’s child with the daughter for visitation.

Appellant testified that she lives in Little Rock, that she is a nursing assistant, and that she wants to go back to school to be a social worker. She testified that the boy’s shoulder wound was from a dog bite, and that the dog hair in the car seat came from her brother’s dog. She stated she had several prescriptions for anxiety and sleeplessness, but that she does not take those anymore. She testified that she only told the father she was practicing Wicca, but that she was really a Baptist. She explained to the trial court that Wicca was an earth religion that had gods and goddesses and believed in doing good.

The trial court awarded custody to the father, citing Arkansas Code Annotated section 9-10-113 (Supp. 2007), and found the father met the requirements of assuming his responsibilities toward the child by providing care, supervision, protection, and financial support. The trial court also found that he was a fit parent to raise the child and it was in the child’s best interest to be in the father’s custody. The trial court cited its grave concerns regarding the mother’s ability to raise the child in a safe and nurturing manner. The judge cited the child’s dirty state, the wound on his shoulder, and the mother’s nonchalance. He cited concerns over the mother’s mental health, in that she had filled prescriptions for medications to treat anxiety, depression, and sleeplessness, but that she quit taking the medication. Finally, he stated his concern over her testimony regarding the Wicca religion, stating she probably was more involved in it than she led the court to believe. The court awarded the mother reasonable visitation and did not require her to pay child support. This appeal timely followed.

Law

Arkansas Code Annotated section 9-10-113(a) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). Section 9-10-113(b) provides that a biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. See id. Custody may be awarded to a biological father upon a showing that (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. Ark. Code Ann. § 9-10-113(c).

In Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007), this court analyzed two cases that relied upon Arkansas Code Annotated section 9-10-113, and held that in order to determine which standard the trial court should use in a custody dispute involving parties who were not married at the time the child was born — best interests of the child (as is utilized for initial custody determinations) or material change of circumstances (which is used when custody is being changed) — the issue rests entirely on whether the initial order in the paternity action was permanent or temporary. If it was permanent, the trial court should follow Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993), and require a change of circumstances to change custody. If it was temporary, the trial court should follow Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004), and conclude that there is no need for the father to prove changed circumstances to obtain custody.

Here, the trial court did not consider that a paternity action was never filed, but acknowledged that the father’s name was on the birth certificate, there was never a question as to the paternity, and the father was paying child support on his own accord. When the father filed a petition for custody, the trial court correctly interpreted it as the initial custody determination. Therefore, the trial court’s duty was to determine the best interests of the child in making an initial custody determination.

In reviewing child-custody cases, we consider the evidence de novo, but will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003). A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003). We know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003). In custody cases, the primary consideration is the welfare and best interest of the child involved, while other considerations are merely secondary. Durham, supra.

Wicca

Appellant argues the trial judge impermissibly based his decision on his perceptions of her religious preferences. The trial judge’s letter of August 16, 2007, states as follows:

One final concern is her testimony regarding the WICCA religion, movement, cult or whatever that may be. She testified that she told Mr. Cook she was involved, but was only joking. That is no joking matter. The Court believes she is much more involved than she would now lead us to believe.

Appellant argues that the above comments showed an impermissible prejudice. She claims that “cult” is pejorative, and argues there was no evidence that Wicca was anything other than a nature religion. She claims the judge’s comments have a chilling effect on religion and freedom of religious exploration. She argues it is a burden on the freedom of religion for the trial court to have determined custody based upon her investigation of a religion not approved by the State. She contends that the trial judge considered her religion, which should have been irrelevant, and maintains that his comments prove he considered it. Therefore, the presumption that he relied only on admissible evidence has been rebutted. See Mitchell v. City of North Little Rock, 15 Ark. App. 331, 334, 692 S.W.2d 624, 626 (1985).

Appellant expounds on this argument, claiming that the dissent in Johns v. Johns, 53 Ark. App. 90, 95, 918 S.W.2d 728, 732 (1996), notes that intervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark. In Johns, the trial court ordered the non-custodial parent to take his children to church and Sunday school. The trial court was affirmed, but the vote was split. This court held:

The chancellor did not order him to attend religious services, but rather that he see that his children did so in order to maintain consistency in the religious regimen that their mother has set for them. Therefore, no limitation has been placed on appellant’s freedom of religion. Because the chancellor’s order imposes no duty on him to attend, appellant is free to attend or not attend the services with the children.

Id. at 94, 918 S.W.2d at 731.

Appellant herein argues that the U.S. Constitution and the Arkansas Constitution prohibit discrimination on the basis of religious belief. She maintains that Wicca is a religion for purposes of the First Amendment. Arkansas courts have not addressed the issue; however, she argues that the testimony here establishes that Wicca is a mode of worship as set out in the Arkansas Constitution. She claims that from the trial judge’s comments, it is obvious he disapproves of Wicca. Appellant maintains that his prejudice is constitutionally impermissible.

Appellant contends that no substantial evidence links her religious beliefs and interests — whatever they may be — with the child’s well being. She is correct. Our cases say that a parent’s moral instruction of the child, which may include religious beliefs, is an issue in determining the child’s best interest. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Plum v. Plum, 252 Ark. 340, 478 S.W.2d 882 (1972); McCullough v. McCullough, 222 Ark. 390, 260 S.W.2d 463 (1953). Therefore, religious beliefs and practices are only material as they affect children’s best interests. However, in this case, no party explored the connections between religious belief and upbringing.

The father argues that appellant never raised the constitutional issues regarding Wicca at the trial-court level and they should not be considered on appeal. However, the father also contends that the trial judge did not impermissibly base his decision on his perception of appellant’s religious preferences. We agree.

Setting aside the trial judge’s comments regarding Wicca, the evidence before the trial court in this initial custody determination was that the father had a clean, stable, loving environment for the child, and while in the mother’s care, the child endured dog bites, diaper rash, a facial fungus, and dirty fingernails and toenails. Further, appellant had been prescribed medications for depression and anxiety, but determined without doctor’s advice to quit taking the medications. The trial court ruled the father proved he had assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child, and he proved he was a fit parent to raise the child. These were not denied by appellant.

In the trial court’s letter opinion, the trial judge stated his concern about appellant’s credibility relative to the extent of her involvement with Wicca. The trial court clearly did not believe appellant’s testimony that she was merely joking about her interest in Wicca. Appellant urges this court to consider the trial court’s mention of Wicca to represent an expression of prejudice. However, there is no basis to hold that the trial court resolved this initial custody determination on appellant’s interest or involvement with Wicca, but simply pointed out appellant’s lack of credibility on the issue. We decline to accept appellant’s argument that this case turns on the trial court’s acceptance or rejection of a specific religion. Instead, the trial court, in this initial custody determination, considered appellant’s credibility on a matter testified to before it. Remembering to give special deference to the trial judge’s ability to evaluate and judge the credibility of the witnesses, we hold that the trial court was not clearly erroneous in judging appellant incredible on this issue. Moreover, even if the Wicca issue went beyond credibility and otherwise affected the merits in the circuit court’s decision, precedent allows us to disregard an improper factor and affirm if the court’s other reasons for changing custody were proper and adequate. Compare Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004), with Sykes v. Warren, 99 Ark. App. 210, 258 S.W.3d 788 (2007). And, as discussed above, no clear error exists on those other factors.

Mental Health

Appellant argues that the trial judge impermissibly based his decision on a conclusion about her mental health that was not in evidence. She claims there was no medical evidence admitted. Further, she argues there was no indication that she was engaged in bizarre behavior in any way inconsistent with the best interest of her child. Therefore, she contends there was no basis for the judge to conclude the child would be better off if the mother took medications that had been prescribed to her in the past.

The father argues that the trial judge properly considered appellant’s mental health and physical condition. He claims the evidence showed that shortly before trial, appellant received prescriptions for depression, anxiety attacks, sleeplessness, and restlessness. At trial, she claimed to be “between doctors.” The trial court stated, “The court does not believe that depression and anxiety occurred overnight. If she suffers from these conditions and she obviously does, the child would be much better off if she took her medicine.” Based on what she told the doctor, she received those medications. Later, she apparently declared herself to be well because she stopped taking the prescribed medications, according to her testimony. Again, giving special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases, we find no error. Accordingly, we affirm.

Affirmed.

Glover, J., agrees. Griffen and Marshall, JJ., concur. Hart and Heffley, JJ., dissent.