Clark v. Arkansas Department of Human Services

2016 Ark. App. 286, 493 S.W.3d 782, 2016 Ark. App. LEXIS 308
CourtCourt of Appeals of Arkansas
DecidedMay 25, 2016
DocketCV-15-882
StatusPublished
Cited by17 cases

This text of 2016 Ark. App. 286 (Clark v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Arkansas Department of Human Services, 2016 Ark. App. 286, 493 S.W.3d 782, 2016 Ark. App. LEXIS 308 (Ark. Ct. App. 2016).

Opinion

PHILLIP T. WHITEAKER, Judge

11 Jessica Clark is the mother of three children: J.C., K.C., and B.W. In September 2013, the Department of Human Services (DHS) removed all three children from Clark’s care in a dependency-neglect action filed in the Ouachita County Circuit Court. DHS named and identified Charles Weeks as the putative father of B.W. Weeks was later adjudicated the father of B.W. by the circuit court at the probable-cause hearing upon stipulation of paternity by Clark and Weeks. Eventually, the court awarded permanent custody of B.W. to-Weeks.

Clark appeals this award of custody and appears before us as the appellant. Clark raises two arguments for reversal. First, she argues that the trial court used the wrong standard to determine whether the modification of custody was appropriate. Second, in the alternative, she asserts there was insufficient evidence to support the trial court’s, determination that a change of custody was appropriate. Weeks does not appear before us. DHS and the attorney bad litem (AAL) are the appellees and have filed responsive briefs to Clark’s appeal. They also filed a joint motion to dismiss the appeal, arguing that the appeal should be dismissed on jurisdictional grounds.

Before we reach the merits of Clark’s appeal, we must first address the jurisdictional issue raised in the appellees’ joint motion to dismiss. To understand the motion, we must look to the procedural history óf the circuit court’s actions.

The court received evidence concerning the custody of B.W. in separate hearings conducted in December 2014 and January 2015. The court did not . rule from the bench. Instead, on January 29, 2015, the trial court issued a letter ruling granting immediate permanent custody of B.W. to Weeks and setting forth the basis for its ruling. The court directed the AAL to prepare an order consistent with the decision set forth in its letter opinion. Despite the court’s direction, no order was entered at that time. On March 18, 2015, a review hearing on B.W.’s half siblings was conducted. After- the review hearing, the letter ruling was subsequently filed with the court. However, a formal order incorporating the letter opinion was not entered until August 19, 2015, and -indicated that it was being entered nunc pro tunc to the January 26, 2015 hearing date. Clark filed her notice of appeal the same day the formal order was entered.

Both DHS and the AAL. contend that the appeal should be dismissed because the notice of appeal was filed more than 21 days 1 after the letter opinion. In essence, they argue |sthat the letter opinion granting custody of B.W. is the order from which the appeal must be taken. We disagree. The Arkansas Rules of Appellate Procedure-Civil direct that an appeal may be taken only from a final judgment or decree entered by the. trial court. Ark. R.App. P.-Civ. 2(a)(1). We have previously held that a' ruling is not the equivalent of a written order for the purpose of deter-miningv finality on appeal; neither are letter opinions that have not been incorporated into the judgment. Wilkinson v. Smith, 2012 Ark. App. 604, 2012 WL 5358347. We hold that the letter opinion in this case did not constitute a judgment or decree. It was merely the basis for the subsequent judgment or decree. In fact, the letter opinion clearly contemplated the entry of a formal order and directed the AAL to prepare it. That was not effectuated until August 19, 2016, when the formal order was entered. * Because Clark’s notice of appeal was filed on the same date of entry of the formal order, the notice was timely, and the motion to dismiss is denied.

We now turn to the merits' of Clark’s appeal. For her first point on appeal, Clark argues that the trial court utilized the wrong standard in awarding custody to Weeks. More specifically, Clark argues that the ehange-of-custqdy request in this case arose solely out of a dependency-neglect action and, as such, is governed by the juvenile code. Pursuant to Ark.Code Ann. § 9-27-334(a)(2)(A) (Repl.2015), if a juvenile is found to be dependent-neglected, the circuit court may enter an order transferring custody of the juvenile to a relative or other individual if to do .so is in the best interest of the juvenile. Keckler v. Ark. Dep’t of Human Servs., 2011 Ark. App. 375, 383 S.W.3d 912. When a trial court decides that a change of custody should be effected under the juvenile code, the court must follow the 1 ¿procedures and dispositions set forth in the code. Miller v. Ark. Dep’t of Human Servs., 86 Ark. App. 172, 177, 167 S.W.3d 153, 156 (2004). Here, Clark argues, that the court failed to properly follow the statutory guidelines, including the requirement of a home study, for a transfer of custody under the juvenile code. Instead, she asserts that the court utilized the material-change-of-circumstances standard from domestic-relations proceedings to determine whether the modification of custody was appropriate.

. Clark’s assertions hold an element of truth. Clearly, the change-of-custody request in this case arose solely out of a dependency-neglect action. 2 DHS removed B.W. 3 from Clark’s care and instituted a dependency-neglect cause of action. Because this was a dependency-neglect action, the case .initially progressed as such and followed the statutory guidelines set forth in the juvenile code: (1) Clark was provided parent counsel and was provided services by DHS in order to achieve an initial goal of reunification; (2) Weeks was named as a party, was provided services by DHS, but was not provided parent counsel because of his status as a noncustodial parent from whom custody had not been removed; arid (3) an AAL was appointed to represent the best interest of B.W. Because this was a dependency-neglect action, Clark is correct that, when the request for a change of custody was made, the statutory guidelines and framework for such a transfer set forth in. the juvenile code should have been ^applied. Clark is also correct that the trial court did not follow the statutory guidelines, including the requirement of a home study, for a transfer of custody under the juvenile code in awarding custody to Weeks.

Here, the trial court clearly utilized the material-change-of-circumstances standard from domestic-relations proceedings to determine the award of custody to Weeks. The court held two evidentiary hearings before awarding custody to Weeks: a review hearing on December 14, 2014, and a continued evidentiary hearirig on January 26, 2015. At the conclusion of the December 2014 review hearing, the AAL requested that Weeks be awarded custody. In response, the only objection made by Clark was that she had not been put on notice of a request for change of custody and was not prepared to put on rebuttal evidence. 4 The court then rescheduled for the continued evidentiary hearing. At the conclusion of the AAL’s presentation of evidence at the January 2015 continued evidentiary hearing, Clark’s attorney moved for dismissal on the basis that the AAL and Weeks had failed to show a “significant change of circumstances.” The trial court denied the motion.

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Bluebook (online)
2016 Ark. App. 286, 493 S.W.3d 782, 2016 Ark. App. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-arkansas-department-of-human-services-arkctapp-2016.