# Robbins v. State

> Court of Appeals of Arkansas · December 18, 2002 · 80 Ark. App. 204

URL: https://www.frixlaw.com/law-library/cases/9677591

## Case

- **Full name:** Heather ROBBINS v. STATE of Arkansas
- **Court:** Court of Appeals of Arkansas
- **Decided:** December 18, 2002
- **Citations:** 80 Ark. App. 204; 92 S.W.3d 707; 2002 Ark. App. LEXIS 721
- **Precedential status:** Published
- **Opinion:** Dissent by Griffen
- **Judges:** Karen R. Baker
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677591

## Opinion text

Wendell L. Griffen, Judge, I would affirm the trial court’s order of the minor daughter of appellant with the child’s paternal grandparents, Kathy and Steve Robbins, because the record before us contains proof that adequately supports the findings made by the trial court that the custody change was necessary to protect the health and safety of the child. The trial court’s conclusion that there was instability in the lives of both parents that was contrary to the best interests of their daughter is fully supported by the record. Moreover, contrary to appellant’s argument on appeal, lack of parental stability does impact the health and safety of a child. Cf. Freshour v. West, 61 Ark. App. 60 , 962 S.W.2d 840 (1998) (discussing sense of stability as a vital element for the child’s life to be considered as a factor). The best interest of the child is the ovérriding concern for deciding cases involving allegations of child abuse. See Johnston v. Arkansas Dep’t of Human Servs., 55 Ark. App. 392 , 935 S.W.2d 589 (1996) (holding chancellor’s findings concerning best interest of children in dependency-neglect case not clearly erroneous). Here, the record fully shows that the unstable existence to which appellant subjected her daughter was contrary to her best interest, as found by the trial court.
Unlike Judge Baker, I find nothing flawed from the fact that the trial court did not find appellant an unfit parent. However, I agree that the trial court erred when it awarded permanent custody to the grandparents. Therefore, I would modify that portion of the trial court’s order, direct that court to retain jurisdiction of the PINS case, and order the Department of Human Services to undertake a home study of the grandparents’ residence and provide such additional family services to appellant as deemed appropriate.
Arkansas Code Annotated section 9-27-328(b) (Supp. 1999), the statutory authority upon which the trial court’s order was taken, states:
(a) Before a juvenile court may order any dependent-neglected juvenile or family in need of services juvenile removed from the custody of his or her parent, guardian, or custodian and placed with the Department of Human Services or other licensed agency responsible for the care of juveniles or with a relative or other individual, the court shall order family services appropriate to prevent removal unless the health and safety of the juvenile warrant immediate removal for the protection of the juvenile.
(b) When the court orders a juvenile removed from the custody of a parent, guardian, or custodian and placed in the custody of the department or other licensed agency responsible for the care of juveniles or with a relative or other individual, excluding commitments to youth services centers or juvenile detention facilities, the court shall make these specific findings in the order:
(1) Whether the removal of the juvenile is necessary to pro-, tect the health and safety of the juvenile, and the reasons therefor;
(2) Which family services were made available to the family before the removal of the juvenile;
(3) What efforts were made to provide those family services relevant to the needs of the family before the removal of the juvenile, taking into consideration whether or not the juvenile could safely remain at home while family services were provided;
(4) Why efforts made to provide the family services described did not prevent the removal of the juvenile;
(5) Whether efforts made to prevent the removal of the juvenile were reasonable, based upon the needs of the family and the juvenile; and
(6) Whether the removal is in the best interest of the juvenile.
Contrary to the view asserted in the majority opinion, the record contains the findings required by this statute, and those findings are supported by the evidence presented to the trial court. In addition to the findings recited by the majority opinion and found in the trial court’s written order, the trial court made the following comments from the bench at the conclusion of the September 4, 2001, custody hearing:
I ordered the caseworker to go out and make a home study on the parents and do all these things, and it’s very difficult for me to make a decision when now we have the hearing that both parents knew about, when the mother testified that she’s now living in a new place, she’s now employed by a new employer, and these changes have taken place very recently, and the DHS caseworker was not informed by the mother of those changes, and we do not have any sort of home reports on the changed position of the mother. I think the statute is clear, and I think the history of this case has been a very rocky one. I had serious concerns about [the minor] having contact with Keegan Stahl, and that apparently has remedied itself because Mr. Stahl is no longer in the picture with Mom. However, we still have a situation where neither parent has really shown stability at this point, and I totally agree with the grandmother that [the minor] needs stability .... And at this time I find that . . . [she] is not getting that with either parent. I find that previous services have been made available through the Department. We have a FINS — we had a caseworker working this case. I ordered DHS to do very specific things, but we still don’t have the stability by either of the parents. I find that it’s in the best interest of [the minor] for custody to continue with Ms. Kathy Robbins and Mr. Steve Robbins, the paternal grandparents. I find that in light of the instability of the situation, the fact that Mom has now moved again, has a new job, we don’t have DHS reports on that. Dad is living with a girlfriend. He’s still not divorced from his first wife, and I believe for a long time he and Ms. Heather were . . . married but living with different people and not divorced yet, but I think that situation has been taken care of. That the situation of Dad is that he was living with his — I guess it would be his wife. They got into it to the point that they got kicked out of their apartment. They show up. Dad had custody of [the minor]. They show up at his mom and dad’s house, and [the minor] has been living with them since April. That was due to Dad’s instability. So I find that it’s in the best interest of [the minor] that custody be placed with the grandparents, that she needs stability, she’s getting counseling services which she will continue to receive, and that custody be with the paternal grandparents, . . .
I am going to order that the FINS case.be closed, that either parent can certainly petition that the Court re-open the case to consider a modification once either parent stabilizes, ... If they wish to have the case re-opened, they can file a petition and it will be re-opened.
Subsection (1) of Ark. Code Ann. § 9-27-328 (b) was satisfied by the proven instability of both parents mentioned by the trial court in her bench comments. Subsections (2) through (5) were satisfied by the statement in the trial court’s order that “DHS provided services to the family before custody was placed with the grandparents, that DHS was ordered to visit the mother’s home before this review hearing but mother had moved three days before the review and did not notify DHS to enable the department to review her home.” Subsection (6) was satisfied by the finding that “due to the instability of both parents and the lack of a home study on the mother’s home due to mother’s failure to advise DHS, placement of custody of the juvenile with the grandparents is in the best interest of the juvenile.”
The record fully supports the trial court’s written findings and bench comments concerning the unstable situation that this child experienced while in the custody of her parents. Appellant testified at the September 4, 2001, review hearing in this family-in-need of services case that she had “stable employment and a stable household.” On cross examination she disclosed that she moved from living with her parents into a trailer occupied by her uncle three days before the September 4, 2001, hearing. She had not informed her DHS caseworker about the address change. She changed jobs but did not inform the caseworker about her job change, or that she had been fired from a previous job. She admitted that her uncle was “not a very clean person” and “I was getting his place all cleaned up.” Yet she never told her caseworker she had moved from living with her parents, let alone where the uncle’s trailer was located so it could be checked after she cleaned it. In the face of this instability, appellant testified “I am wanting [the minor] today.”
At no point does Ark. Code Ann. § 9-27-328 require a finding that a parent is unfit before a juvenile can be ordered removed from the custody of that parent and placed “with a relative or other individual.” That omission is more than incidental. The Arkansas General Assembly enacted the statute with at least constructive knowledge of the case law cited in the majority opinion. Furthermore, not only does the record before us support the trial court’s findings of parental instability that adversely affected the minor’s health and safety, but appellant does not allege the absence of an unfitness finding as a point of error in her brief and failed to raise this argument before the trial court. It is well settled that we do not entertain arguments on appeal that were not raised below. See, e.g., Cross v. Crawford County Mem’l Hosp., 54 Ark. App. 130 , 923 S.W.2d 886 (1996).
However, I agree that the trial court erred when it placed permanent custody of appellant’s minor child with the child’s paternal grandparents and closed the FINS case. My position in that regard has nothing to do with the notion that appellant needed to be established an unfit parent in order for custody to be removed pursuant to Ark. Code Ann. § 9-27-328 (b) (Supp. 1999). As previously mentioned, that statute does not require a showing of parental unfitness before a court may order a juvenile removed from the custody of a parent. Nevertheless, it was error for the trial court to declare that permanent custody of the juvenile would rest with the grandparents and close the FINS case. We need not reverse the trial court in order to correct that flaw in its judgment, but should modify it by declaring the grandparents to exercise temporary custody. This modification fully addresses the concern about the error in making a permanent custody award as well as the unfitness concern.
In summary, the trial court made the findings required by Ark. Code Ann. § 9-27-328 . Those findings are adequately supported by the record. Not only did appellant fail to object (either at trial or by an allegation of error on appeal) to the trial court’s failure to find her an unfit parent when it decided to remove the child from her custody and place her in the custody of the child’s paternal grandparents, the statute does not require a finding of parental unfitness before a trial court can order a juvenile removed from the custody of a parent and placed with a relative or another person. Aside from modifying the trial court’s judgment that permanent custody of the child be with the paternal grandparents and that the FINS case be closed, I would affirm the result- below under our “clearly erroneous” standard.
I am authorized to state that Chief Judge Stroud and Judge Crabtree join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677591. Public record. Not legal advice.