Camp v. McNair

217 S.W.3d 155

Christina McNair CAMP, Appellant v. Mickey McNAIR, Caree Ogiela and Mark Ogiela, Husband and Wife, Appellees.

No. CA 05-321.

Court of Appeals of Arkansas, Division II.

November 16, 2005.

White & Watson Law Office, by: Rick Watson and Karen Pope Greenaway, Fayetteville, for appellant.

No response.

ANDREE LAYTON ROAF, Judge.

Christina McNair Camp appeals from the trial court's order granting appellees Caree and Mark Ogiela, the paternal grandparents, custody of her minor child. On appeal, she argues that the trial court erred by (1) permitting the Ogielas to intervene in the custody proceedings; and (2) awarding custody to the Ogielas when they failed to prove that she was unfit. We reverse and remand.

Christina and Mickey McNair were divorced on September 19, 2003. They have one daughter, Brianna McNair, born May 8, 2003. Following a hearing held on February 20, 2004, the trial court awarded McNair, who was then living with his parents, the Ogielas, custody of Brianna and awarded Christina standard visitation. Christina was not given overnight visitation due to her cohabitation with a man to whom she was not married, but the trial court indicated that if Christina ceased cohabitating, then she could petition for overnight visitation. Christina's circumstance changed, and on July 1, 2004, the trial court lifted that restriction. Thereafter, the parties agreed in writing that they would alternate custody every three months, and Christina took custody of Brianna on July 2, 2004. She then filed a petition for modification of the custody order on July 26, 2004. An argument ensued regarding Christina's pursuit of custody, and on August 18, 2004, McNair went to Christina's home and demanded that Brianna be returned to his custody. The Springdale Police Department was present, and McNair was taken to jail. On that same day, Caree and Mark Ogiela, Brianna's paternal grandparents, went to Christina's home and took custody of Brianna. According to Christina, the Ogielas indicated that McNair might flee with Brianna, and convinced her to allow them to keep Brianna to prevent McNair from absconding. A few minutes later, the Ogielas served Christina with a petition to intervene in the instant custody proceedings, and they also filed a petition for modification of the custody order. Christina filed a petition for emergency custody, alleging that the Ogielas had refused to return Brianna to her custody and that it was in Brianna's best interest that the trial court modify the custody order and place Brianna in her custody. Christina also filed a response to the Ogielas's petition to intervene and requested that the petition be dismissed.

A hearing on the parties' motions to modify the February 2004 custody order was held on November 8, 2004. McNair admitted that he was no longer in a position to adequately care for and support Brianna and testified that he wanted his parents to have custody of Brianna. He alleged that Christina was continuing to cohabitate with a married man, Craig Sayer. He testified that he had observed Craig and his children at Christina's house, and that he understood from conversations that he had had with Christina that Craig was at her house regularly. McNair also testified that Christina had made it difficult for him to exercise visitation with Brianna and that when she did agree to visitation, she would take Brianna to his parents' house rather than permitting him to pick her up. He was unable to state whether Christina abused alcohol, and merely stated that he did not know. He later stated that his mother, Caree Ogiela, had told him that Christina had been drunk when she returned Brianna after exercising visitation.

Caree Ogiela testified that the Ogielas had taken care of Brianna since August 2004. She stated that, because McNair had indicated that he wanted them to have custody of Brianna, they have been responsible for facilitating visitation with Christina. Caree Ogiela testified that she had to take Brianna to the hospital several times, once for an upper-respiratory infection. She later admitted that she and a co-worker smoke in an office that is attached to their home. Caree also stated that Brianna has suffered from diarrhea, diaper rash, and other ailments when returning from Christina's custody. She also testified that she had "caught" Christina cohabitating. There was testimony that Craig had been seen at Christina's house as late as 10:30 p.m. and as early at 6:30 a.m. She also stated that she was concerned about Christina's ability to care for Brianna and that, when Brianna was in Christina's care, she was in poor health and her appearance was poor. She stated that, when she visited Christina's home in July, it was hot in the home because Christina's air conditioner was not working; that the toilet was not working, and Christina indicated that she needed to get someone out to fix it; that there were fans on the floor, and Caree was concerned that small children might stick their fingers in the fans; that there were five or six adults and several children living in the home with Christina and Brianna; and that it appeared that two children were sleeping in Brianna's baby bed because there was a pillow at each end of the bed. She further alleged that Brianna had returned from visitation with a bite mark on her back and a handprint on her face, and that occasionally Christina had returned Brianna dirty. Caree also stated that, since this case began, she had done her own "private detective work" and has followed Christina to the liquor store. She admitted that she did not see what Christina purchased; however, she stated that she had smelled alcohol on Christina's breath.

Christina testified that in February, the time of the last court order, she, Craig, her brother, and sister-in-law lived in the same home. Since the February order, she moved to her own home. It is a two-bedroom home. One of the bedrooms is designated for Brianna, and it is decorated for her and there is a crib in that room. Christina denied that she and Craig were cohabitating at her new home, but admitted that Craig and his two daughters had lived with her for a short time. Craig, however, has not lived in her home since July, and his two daughters have not lived in her home since early August. She also testified that Craig had not spent nights at her home since the trial court lifted the overnight-visitation restriction and that he had never spent the night when Brianna was present in her home. She admitted that Craig has come to her house as early as 6:30 a.m.

Regarding the condition of her home, Christina submitted forty-one pictures taken on August 19, 2004, to show the condition of her home. She denied abusing alcohol but admitted that she consumes wine on occasion. During her testimony, Christina referenced the trial court's concern that she had a "history of alcohol problems." She testified that her last alcohol-related offense occurred four years ago and that she no longer consumes beer and never consumes "hard liquor." She testified that she has had steady employment only missing a few weeks that year. She also discussed times where the Ogielas had denied her visitation with Brianna and denied that she or anyone in her home had abused Brianna. The testimony also showed that Christina had been voluntarily given increased visitation with her other child, Jared.

After the hearing, the trial court commented that, at the time of the February order, it had placed great weight on the fact that Christina admitted that she was cohabitating with a married man. Accordingly, the trial judge placed Brianna in McNair's custody. The trial court found that there had been a material change in circumstances because McNair had left his parents' home and was now himself cohabitating with a woman to whom he was not married. The trial court acknowledged McNair's preference that Brianna be placed with his parents but also acknowledged that, in July, the parties felt that circumstances had changed such that Christina should be given overnight visitation because she had "met the conditions of the previous visitation order and was no longer cohabitating."

Regarding the Ogielas' petition to intervene and to modify the custody order, the trial court specifically found that they had not proved that Christina was still cohabitating, nor had they proved that she was abusing alcohol in Brianna's presence. The court also found that there was insufficient evidence supporting the Ogielas's assertion that Brianna had been abused while in Christina's custody. He found that there were no pictures showing the alleged injuries (bite mark or handprint) or a doctor's report. The trial court found that there was insufficient evidence showing that Christina was responsible for these alleged injuries and that there was no medical evidence showing the existence of the injuries.

However, the trial court commented that Christina had not "stepped up to the plate." The trial judge pointed to the fact that, despite her testimony that she had steady employment, she was behind on her child-support payments. The trial court also discussed Christina's relationship with Craig, a married man; however, he reiterated that the Ogielas had not shown that the two were cohabitating. Consequently, the trial court found that it was not in Brianna's best interest to be placed in Christina's custody. The trial court's written order states:

The Court specifically finds that an insufficient period of time has passed since this Court made findings regarding the relative fitness of Christina Camp to serve as primary caregiver and custodian of and for Brianna McNair for this Court to determine that her shortcomings have been overcome; that Christina Camp has failed to cure certain deficiencies found by the Court and set out in prior orders entered herein, and that Christina Camp has failed to assume full responsibility for and demonstrate skills...