Devine v. Martens

im Gunter, Juin this case because,

dissenting. I would affirm the judgment in this case because, the circuit judge was in a better position after two hearings to decide what was in the best interest of the child. While the majority gives lip service to our rule, regarding our deference to the trial judge and his superior position to resolve factual disputes, the majority bases its decision on evidence that was not only disputed by multiple witnesses, but also found to lack credibility. Guardianship and custody cases are the most difficult cases for our courts to decide, and the decision quite often rests on matters which are not evident on the printed page, which is all that we have before us. This was a complicated case with serious charges of neglect made against the mother. The evidentiary disputes were endless. The judge summed up the complicated nature of the evidence in this case, prior to issuing his findings:

I have had an opportunity now to read over all of the exhibits that have been introduced in the case and I have had an opportunity to observe the witnesses as they have testified; to observe their body language, their demeanor while on the witness stand, the cadence of their testimony, all of those things we look to to determine whether or not a particular portion of somebody’s testimony is true. In this case, it’s probably more important that I’ve had the opportunity to personally observe the witnesses because, in this case, there has been a significant amount of testimony purportedly describing the same events that couldn’t be more diametrically opposed in terms of what people say happened. So, in this case, as frequently happens, we are obliged to determine credibility.

The grandparents were providing a stable home and a good influence on the child, and the child was beginning to thrive once again. After two hearings, I am satisfied that the circuit judge did what he felt would be in the best interest of the child. In such a case, I would not substitute my judgment for that of the trial judge.

The grandparents raised valid concerns about the child’s safety, noting the fact that the mother now had a male roommate. They questioned whether the type of person that would feel comfortable living in a home decorated with sexually graphic material would pose a danger to the young boy. It is common for a court to determine whether it is appropriate for a child to live with an unmarried parent, who resides with a member of the opposite sex, and the issues that arise from such an inquiry were particularly relevant to this case. While the typical case that addresses this issue involves a dispute between two natural parents, the court, here, was mindful of that distinction and the presumption that existed in favor of the natural parent. While the mother’s lifestyle in this case was unusual, the court recognized that such a lifestyle was not, alone, a sufficient basis to shift custody to a third party.

While the evidence of educational neglect did not have the shock value of other allegations, the attendance problems were serious enough that the Texas courts instituted criminal proceedings against Miss Devine. The court summarized the testimony presented by Miss Devine, regarding her child’s excessive number of tardies and absences:

Miss Devine testified that the school attendance of Syris was not particularly a problem. She had, in fact, indicated that to the extent that there was any problem at all she had changed schools to eliminate any difficulties that occurred earlier. The proof demonstrates conclusively to this court that Syris suffered from a staggering number of absences and tardies. Miss Devine and another witness testified that the Austin School District was simply too strict; that they were wrong-headed in their policies. The court did not find , that testimony credible. In fact, the court found that the corroborating witness apparently engaged in similar patterns of behavior to Miss Devine, which this court finds appalling. The determination and credibility on this particular issue was determined, in part, by personal observation of Miss Devine’s corroborating witness, her method and manner of the testimony and the content of their testimony.

The court concludes and finds that both witnesses have given less than what the court would call enthusiastic emphasis to the education of their children.

The court then noted testimony that the Martenses presented, regarding the tardies and absences:

The problem for Syris’s tardiness and absences rose to a point which required the City of Austin to institute a criminal case against Miss Devine for a parent contributing to non-attendance of a child. Although warned about the problem, Miss Devine failed to correct it.

This court concludes and finds that Miss Devine does not, and has not, provided an environment where Syris can receive full benefit of this education.

The court has little difficulty concluding that Syris will be better served living the school year with the Martens. Accordingly, the court concludes that Petitioners have met their burden of proving entidement to establishment of a guardianship for the child, Syris Norelli, and that request for guardianship is granted.

It is well established that the preference for the natural parent is overcome if the parent is not performing her duty to care for and protect her child. Lloyd v. Butts, 343 Ark. 620 , 37 S.W.3d 603 (2001). The trial court found that appellant was not fit, based on its findings of environmental neglect, educational neglect, questionable moral guidance, and abandonment.

The majority reverses the court’s findings by relying on testimony that was disputed by numerous witnesses at the hearings. While the trial court had the opportunity to determine which party’s evidence was more convincing, by observing the witnesses as they testified, this court does not, and I am not willing to replace the trial court’s determinations with my own, when the evidence presented was so drastically conflicting. In addition, I believe that the court’s findings are supported by objective evidence, such as school records, communications between Miss Devine and her son’s teacher, and evidence regarding the criminal-contempt action in the Texas court system.

Our standard here is clear. We do not reverse the trial court’s findings unless we conclude that the finding was clearly erroneous, which means that we are left with a definite and firm conviction that a mistake has been made. Based on the volumes of evidence in this case that support the trial court’s decision, I cannot conclude that the decision was clearly erroneous. Accordingly, I would affirm.