Lamontagne v. Arkansas Department of Human Services

2010 Ark. 190, 366 S.W.3d 351, 2010 Ark. LEXIS 220
CourtSupreme Court of Arkansas
DecidedApril 22, 2010
DocketNo. 09-859
StatusPublished
Cited by37 cases

This text of 2010 Ark. 190 (Lamontagne v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamontagne v. Arkansas Department of Human Services, 2010 Ark. 190, 366 S.W.3d 351, 2010 Ark. LEXIS 220 (Ark. 2010).

Opinions

RONALD L. SHEFFIELD, Associate Justice.

liThe Arkansas Court of Appeals certified this case to this court as an issue in which there is a perceived inconsistency in the decisions of the supreme court, an issue of substantial public interest, and a significant issue needing clarification or development of the law or overruling of precedent. Thus, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(b)(2), (4), and (5) (2009).

Appellant Linda Lamontagne appeals the decision of the Washington County Circuit Court awarding custody of her daughter, S.S., to her other daughter, Danielle Sexton. On appeal Lamontagne asserts that the trial court erred in granting permanent custody of the minor child to the child’s sister under a previous version of Ark.Code Ann. § 9-27-338 (Repl.2009), rather than the amended version, changes to which had become effective on April 6, 2009. The effective date was two days prior to the permanency planning hearing and | ¿resulting order, wherein the court found that Lamontagne had made significant progress but was not ready to take immediate custody. Lamontagne appeals from this order.

On January 15, 2008, Linda Lamon-tagne, while intoxicated, crashed the vehicle in which she and S.S. were riding. Four-year-old S.S. was hospitalized for her injuries. The Arkansas Department of Human Services (DHS) took the child into emergency custody. S.S. was found to be dependent-neglected by the circuit court pursuant to an order entered March 18, 2008, and ordered to remain in the custody of DHS with a case goal of reunification with the parent. The child was placed in the temporary custody of Tim and Danielle Sexton, S.S’s sister and brother-in-law. The court also ordered Lamontagne to undergo both psychiatric and psychological evaluation. At a permanency planning hearing on January 7, 2009, the circuit court judge found that Lamontagne was making significant progress and working toward the goal of reunification. The court also found that reunification would likely occur within six months of the hearing as long as Lamontagne was in frequent, consistent individual counseling and sought treatment by a psychiatrist. The court ordered the child to remain in the temporary custody of the Sextons.

At the fifteen-month permanency planning hearing, on April 8, 2009, the circuit court ceased reunification services and found, based on Ark.Code Ann. § 9-27-338, that it was in the best interest of the child to award permanent custody to the Sextons and allow Lamontagne visitation on Saturdays. The court allowed for a reopening of the case in the future if Lamon-tagne could show that she had made progress with regard to maintaining her Ispsychiatric medication and had entered counseling with the family. Lamontagne appeals the circuit court’s decision.

On appeal, Lamontagne argues that the trial court erred in awarding permanent custody to the child’s sister. La-montagne contends that the trial court should have continued efforts to award custody to her based on the amended statute Ark.Code Ann. § 9-27-338 (Repl.2009). Lamontagne asserts that the trial court, however, relied on the previous statute and found that, based on the order of preference, custody was awarded to S.S.’s sister. Lamontagne argues that if the trial court had followed the amended statute, the preferred goal would have been to continue reunification efforts with the child and mother rather than to award permanent custodial placement with the sister. DHS counters that, assuming the trial court erred in awarding custody, Lamontagne did not preserve the point on appeal by properly raising the issue during the hearing. DHS argues that Lamontagne was required to object and raise the issue at the trial court level. Because Lamontagne did not, DHS contends that she is barred from raising the point for the first time on appeal.

This case was certified to this court to address a perceived inconsistency in prior case law regarding arguments raised for the first time on appeal. Although we have held in the past that we will not consider arguments raised for the first time on appeal, in Jones v. Abraham, 341 Ark. 66,15 S.W.3d 310 (2000), we held that a contemporaneous objection was not required to obtain review on appeal. This court stated that de novo review of chancery court |4decisions had no such requirements. We are asked to review the Jones decision in view of our other holdings on this issue.

We have stated before that this court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the trial judge’s findings “unless they are clearly erroneous.” Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Furthermore, this court defers to the trial judge’s evaluation of the credibility of witnesses. Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). With regard to arguments raised for the first time on appeal, we have stated that “[d]e novo review does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below, and that opportunity was not seized.” Roberts v. Yang, 2010 Ark. 55, — S.W.3d -, 2010 WL 398641.

As a threshold matter, we address a prior holding by this court in Jones v. Abraham, in which we held that the requirement for a contemporaneous objection was not applicable to deny appellate review of a dismissal. The Jones case involved a contest to a will by parties claiming that the decedent made an oral agreement to transfer her share of her father’s estate to her sister, and her sister’s heirs. The lower court granted a motion for a directed verdict. Originally, the matter was appealed to the court of appeals, which affirmed, citing to the “contemporaneous-objection rule” as a ground for denying appellate review of the court’s IsOrder of dismissal. See Jones v. Abraham, 67 Ark.App. 304, 999 S.W.2d 698 (1999). On granting petition for review, this court stated that the court of appeals decision was in conflict with Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (Ark.App.1980). In Morrow, the appellee claimed that the appellant failed to raise an issue at trial and, thus, the court of appeals could not consider it on appeal. The court of appeals rejected the appel-lee’s assertion and stated that “[traditionally appeals from the chancery court are reviewed de novo and there is no requirement of objections to the findings, conclusions and decree of the court to obtain review on appeal.” Id. at 33, 603 S.W.2d at 432. The Jones court cited to this decision in holding that the lack of a contemporaneous objection did not deny appellate review of the case. The Morrow opinion, however, did not cite to any authority to support its conclusion.

The Jones decision has been cited in other cases. See, e.g., Abernathy v. Adous, 85 Ark.App. 242, 149 S.W.3d 884 (2004); Martin v. Martin, 79 Ark.App. 309, 87 S.W.3d 817

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Bluebook (online)
2010 Ark. 190, 366 S.W.3d 351, 2010 Ark. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamontagne-v-arkansas-department-of-human-services-ark-2010.