Johnson v. Bennett

480 S.W.3d 870

Jerry Johnson, Appellant,

v.Shellee Bennett, Appellee.

No. CV–15–624

Court of Appeals of Arkansas, DIVISION I.

OPINION DELIVERED JANUARY 20, 2016

Henry Law Firm, PLC, Jonesboro, by: Megan Henry, for appellant.

No response.

ROBERT J. GLADWIN, Chief Judge

Jerry Johnson appeals the Craighead County Circuit Court's April 28, 2015 order denying his petition for grandparent visitation. On appeal he argues that (1) the trial court abused its discretion by refusing to deem admitted his request for admissions and (2) the trial court clearly erred in finding that it was not in the child's best interest to have visitation with him. Appellee Shellee Bennett did not file a responsive brief. We affirm.

I. Facts

Appellant is the paternal grandfather of C.J., born January 5, 2010. He filed a petition to establish grandparent visitation on July 16, 2014, alleging that paternity of C.J. had been established in Tennessee and that his son, Jarrod Johnson, was ordered to pay child support to appellee Shellee Bennett, C.J.'s mother. Appellant alleged that he had frequent and regular contact with the child for at least twelve consecutive months until May 21, 2014, when appellee refused to allow visitation. He sought visitation rights and the child's social security number in order to establish a bank account for C.J.'s benefit. Appellee filed a pro se answer on August 15, 2014, alleging that all contact with appellant ceased when she discovered evidence suggesting that he had molested C.J. during her last visit with him.

Appellant filed a request for admissions on November 24, 2014, seeking appellee's admissions that appellant had (1) frequent contact with C.J.; (2) regular contact with C.J.; (3) the capacity to give C.J. love, affection, and guidance; (4) established a significant relationship with C.J.; and (5) established a viable relationship with C.J. He also sought admissions that (6) visitation with him was in C.J.'s best interest; (7) the loss of the relationship between appellant and C.J. would harm C.J.; and (8) appellant was willing to cooperate with appellee if visitation were awarded. The certificate of service attached to the request for admissions provided that the pleading was mailed on November 13, 2014, to "Ms. Shellee Bennett, 1412 CR 739, Brookland, AR 72417."

At the February 26, 2015 hearing on appellant's petition for grandparent visitation, appellee made her appearance telephonically because of icy-road conditions. She testified that she had remarried and that her last name is Cooper. She said that she resides at 115 Perry Avenue, Grenada, Mississippi, and that she had moved there on December 16, 2014. She said that she had lived in Brookland, Arkansas, from December 31, 2013, until December 16, 2014. She explained that on November 13, 2014, she was no longer living at 1412 County Road 739, Brookland, Arkansas, because she had moved "a couple of blocks down into a bigger house," and her mail had been forwarded to her. Appellee stated that she did not remember receiving any request for admissions, but that she did receive the protective order dated November 24, 2014.

Prior to living in Brookland, appellee lived in the area of Pleasant Shade, Tennessee. She said that she has three children—one in college, one who is eleven years old, and C.J., who is five years old. She testified that Jarrod Johnson is C.J.'s biological father, that paternity and child support had been established for C.J. in Tennessee, but that Jarrod did not have custody or visitation with C.J.

Appellee testified that appellant was living in Minnesota when C.J. was born, and he had visited C.J. after her birth. Appellant later moved to Tennessee in 2012, and he visited C.J. from thirty minutes to an hour every couple of months. After Jarrod "got more out of the picture," appellant spent more time with C.J. Appellee testified that C.J. was nearly four years old in December 2013 when she and her family moved to Brookland, Arkansas, several hours away from appellant. Appellee admitted that she had refused to allow appellant visitation with C.J. since May 2014.

Sherry Timmons testified that she was formerly married to Jarrod, and they have two girls, now ages sixteen and nineteen. She said that she also has two boys, ages ten and eight, who are not Jarrod's children. She said that appellant had been involved with her daughters since his move to Tennessee in 2012, that he had attended their basketball games, had planned special birthdays, and had also attended family functions, homecoming, and graduations. She said that he had seen them several times a month, and sometimes every week, and that many times he had included her boys in the visits. She testified that, even though her relationship with Jarrod was not consistently good, she had an extraordinary relationship with appellant because of the time, energy, and effort that appellant had spent with her girls. She said that her girls had enjoyed a lot of time with C.J. before her move to Arkansas, and that she had no concerns about her children being in appellant's care.

Ms. Timmons testified that appellant's oldest daughter sent her an email stating that appellant "was doing all of this stuff and [I] need[ed] to get all four of [my] children out of there." She said that she questioned each of her children independently and that she had gone to the Department of Human Services, where someone in child services interviewed her children regarding the allegation in the email. She said that there was no basis for the allegation and that the woman from child services who interviewed the children admired the relationship they had built with appellant.

Appellant testified that he moved from Minnesota to Ashland, Tennessee, in 2012, and then moved to Spring Hill, Tennessee, in December 2013. He said that he has three children, Laura, Jarrod, and Melody. He claimed that his son Jarrod was an alcoholic who had failed miserably in his relationship with his children. He admitted that he had a difficult relationship with Laura but claimed that he had a wonderful relationship with Melody. He said that Laura suffered from alcoholism and that she used prescription drugs. He said he believed that his children suffered a genetic predisposition to alcoholism from their mother's family. He also believed that Laura suffered from false-memory syndrome due to her addictions. He said that Laura accused him of molesting his grandchildren, but that child services rejected the accusation, deciding that it was without foundation. He said that he paid almost $1000 for a polygraph test to show people that "took all of her allegations together."

He testified that he began visiting C.J. once or twice a month in 2013. He said that he had a visit with C.J. in February 2014, when they stayed overnight in a hotel. He was married on December 7, 2013, to Sandy Johnson, who testified that C.J. refused to sleep alone and was comfortable with appellant.

Appellant said that the last time he saw C.J. was May 18–21, 2014, when he and Sandy took C.J. to Tennessee. He said that, on the last day, they were packed and ready to go meet appellee in Jackson, Tennessee. He was giving C.J. her last bathroom break when she screeched, said that it hurt, and explained that it was because she had not wiped good. He said he got some Vaseline and "put it on the outside of where she goes number one." He claimed that he did so because she was pointing to where her difficulty was, and she was red and apparently chapped. He then got her dressed and into the car. The car-seat strap was uncomfortable for her, and C.J. complained during the drive to Jackson.

Appellant said that they texted appellee about C.J.'s condition and told her that the child needed to be seen by a doctor. He testified that appellee never returned his calls after the child was delivered to her, and he had not seen C.J. since that time. He said that after he contacted his attorney to start the process of visitation, he became aware that appellee had made allegations that he had sexually abused C.J. He said that child services investigated and ruled the allegations unfounded. He claimed that he would be willing to cooperate with appellee if he were awarded visitation.

When questioned by the trial court, appellant said that he had slept with C.J. the night before the incident in question because C.J. wanted to sleep with him and his wife, but Sandy did not want "a squirmy kid in the bed." He said that C.J. had wet the bed the night before and he had been soaked by it. He also said that he had applied the Vaseline to the surface of C.J.'s skin. He stated that C.J. had not done any screaming or complaining about redness or soreness during the prior four days of the visit. Finally, he said that he could understand why the mother was concerned.

Appellee testified that before May 2014, she had no problem with appellant having contact with C.J. When C.J. came home from the visit in such pain, she took her straight home and put her in the bathtub. C.J. would not stop screaming, and appellee said that she saw that the child was not red on the outside but that she was red on the inside. She also saw what looked like a tear. C.J. told appellee that "he put white stuff on her private area," and this was comparable to what appellant had told her about putting Vaseline on C.J.'s vagina. Appellee took the child to the emergency room, and the child was examined. Appellee testified that there was no irritation on the outside but there was on the inside. Appellee claimed that the hospital-discharge paper "actually said sexual molestation was their diagnosis."

After C.J. had been examined at the hospital, the Tennessee Department of Children's Services investigated, and the file was admitted into evidence at the hearing. An investigatory form within the file reflects that C.J. responded to a nurse's questioning, stating that one time her grandfather had looked at her, referring to her vaginal area, and pointed...