Amanda Goodrich v. State of Arkansas

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ca00-151

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

AMANDA GOODRICH

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CA 00-151

OCTOBER 11, 2000

APPEAL FROM THE MARION COUNTY CHANCERY COURT, JUVENILE DIVISION

[J-98-129]

HONORABLE GARY B. ISBELL, CHANCERY JUDGE, JUVENILE DIVISION

AFFIRMED

This is an appeal from a adjudication of delinquency. Appellant Amanda Goodrich was adjudicated a delinquent juvenile based on a charge of interference with custody in violation of Ark. Code Ann. § 5-26-502(b)(1)(C), a felony. Goodrich had taken her infant daughter, who, along with Goodrich was in the custody of the Department of Human Services (DHS), out of the state. On appeal, she argues that the trial court erred: (1) in convicting her of interference with custody; (2) in failing to set aside a May 4, 1998, decision placing her and her daughter in DHS custody or in failing to grant to her motion in limine; (3) in refusing to appoint the public defender to represent her against DHS; and (4) in failing to assess criminal penalties against DHS as Goodrich's custodian. Goodrich's arguments lack merit, and we affirm her delinquency adjudication.

On April 28, 1998, the Marion County Chancery Court entered an emergency order placing Goodrich and her infant daughter, Samantha Laverty, in the custody of DHS on the grounds that there was probable cause to believe that they were dependent-neglected. After the court entered the order, a hearing was held on May 4, 1998. At this hearing, a guardian ad litem represented Goodrich, and Goodrich was present. DHS was the plaintiff in the case and the named defendants were Goodrich's parents, Goodrich and Buck Laverty, Samantha's father. At the conclusion, the court made a finding of dependency-neglect. A subsequent order was filed June 5, 1998, that found both Goodrich and her daughter to be dependent-neglected.

After the May 4 hearing, Goodrich and her daughter were placed in OMART for Goodrich to receive drug and alcohol treatment. Samantha attended daycare while Goodrich received her treatment during the day; they were together at night at the facility. Prior to being released from the facility, on May 24, 1998, Goodrich received a day pass to attend a family picnic, but instead of returning to OMART she left Arkansas with her daughter and went to Nebraska. DHS filed a complaint for interference with custody with the Marion County Sheriff's office, claiming that DHS had custody of Goodrich and her daughter by order of the court. A warrant was issued by the Marion County Chancery Court, and Goodrich was arrested in Nebraska and returned to Arkansas on September 25, 1998.

Goodrich appeared in Marion County Circuit Court, and the public defender was granted a request to transfer the case to juvenile court. In juvenile court, Goodrich challenged the propriety of the court's June 5, 1998, order resulting from the May 4, 1998, hearing, which was the basis for the criminal charges against Goodrich. Goodrich pointed out that the petition before the court on May 4 sought a dependency-neglect finding for her, not her daughter. Goodrich argued that if the court or DHS intended to make a dependency-neglect finding for her daughter, there was an obligation under Rule 17(b) of the Arkansas Rules of Civil Procedure to appoint an attorney to represent Goodrich as a mother. Subsequently, Goodrich filed a motion in limine asking that thecourt prohibit the State from introducing the order of June 5, 1998, arguing that the issue of dependency-neglect for her daughter was never raised at the May 4 hearing and that the trial court did not make such a finding. The motion was denied and the trial followed.

The trial was held on May 28, 1999. Two witnesses were called, Lisa Jensen and Shirley Wynns. Jensen, a family service worker for DHS, testified that she talked to Goodrich the evening she returned from Nebraska. Jensen stated that Goodrich stated that she did not know her daughter was in foster care. Wynns, an investigator in charge of investigating reports of child maltreatment for DHS, testified that she initiated a petition for emergency custody and took the two into custody at the time of the emergency order. Wynns testified that she told Goodrich that Goodrich could come with her or not, but that she was taking her and her daughter into custody and that if she chose to run or fight, she was still taking the child. Goodrich did not testify and called no witnesses in her defense.

At the close of the case, the court found that the State proved all the elements of interference with custody, and adjudicated Goodrich a delinquent juvenile. The court sentenced her to the "C-Step" program, with that placement suspended, and ordered her to pay a $500 fine, with $450 suspended, along with court costs. The court ordered DHS as Goodrich's custodian, to be jointly responsible for the payment of fees and fines. Goodrich's motion that DHS, because of its errors and involvement, be also fined and required to do community service was denied. Goodrich appeals the adjudication of delinquency, and the trial court's denial of her motion.

At trial, Goodrich moved for a directed verdict at the conclusion of the State's case. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Farrelly v. State, 70 Ark. App. ___, ___ S.W.3d ___ (2000). On appeal, Goodrich first contends that there is insufficient evidence to support her delinquency adjudication for interference with custody. The test fordetermining the sufficiency of the evidence is whether the evidence is supported by substantial evidence, which is evidence of such certainty and precision to compel a conclusion one way or another. Id. This court reviews the evidence in the light most favorable to the State, considering only the testimony that tends to support the verdict. Jenkins v. State, 60 Ark. App. 122, 959 S.W.2d 427 (1998).

Goodrich was charged with interference with custody under Ark. Code Ann § 5-26-502(b)(1) (Repl. 1997), which provides:

(b)(1) A person commits the offense of interference with custody if, without lawful authority, he or she knowingly or recklessly takes or entices, or aids, abets, hires, or otherwise procures another to take or entice, any minor or any incompetent person from the custody of:

(C) A public agency having lawful charge of the child or incompetent person;

As an unwed mother, custody of her minor daughter is placed with Goodrich and absent a court order to the contrary, it remains with her. See Ark. Code Ann. 9-10-113(a) (Repl. 1998). In order to take her daughter from her, the State must make a finding of dependency-neglect for her daughter. Under Ark. Code Ann. § 9-27-303(12) (Repl. 1998), a dependent-neglected child is one who "as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness is at substantial risk of serious harm."

Goodrich argued in a motion in limine, at the close of the adjudication and now on appeal, that there was not a valid finding of dependency-neglect for Samantha on which to base a charge of interference with custody. In support of her argument, she asserts that the State never specifically requested a finding of dependency-neglect for Samantha in the May 4, 1998, hearing. The State concedes that the chancery court's oral pronouncement of May 4, 1998, was inadequate to show that DHS had "lawful charge" of Goodrich and her daughter on May 24, 1998, because an oralpronouncement, without the entry written of a written order, has no effect. See, e.g., Ark. Code Ann. §§ 9-27-327(e), 9-27-329(e) & 9-27-325(f) (Repl. 1998); Ark. R. Civ. P. 58 (2000) and Blaylock v. Shearson Lehman Brothers, Inc. 330 Ark. 620, 954 S.W.2d 939 (1997) (explaining the general rule that judicial orders do not take effect until entered). Nonetheless, the State argues that the June 5, 1998, order is not necessary to affirm Goodrich's adjudication, and we agree. The April 28, 1998, emergency order that placed both Goodrich and her daughter in the custody of DHS remained in effect until superceded by the entry of the June 5, 1998, order. See, e.g., King v. Carney, 341 Ark. __, __ S.W.3d __ (2000) (holding that rulings granting extensions for service of process remain in effect because subsequent oral ruling dismissing the case had no effect). Goodrich does not dispute the fact that the April 28, 1998, order placed her and her daughter in DHS's custody or the fact that she was aware of this order. Therefore, she had notice at the time of the May 4, 1998, hearing that she and her daughter were under the custody of DHS, and there was sufficient evidence to find Goodrich guilty of interference with custody, as she "knowingly or recklessly took her daughter from the custody of DHS" when she left OMART on May 26.

Goodrich's also argues that the chancery court, in the delinquency case, should have set aside the June 5, 1998, order which found her and her daughter to be dependent-neglected. As previously stated, the validity of the June 5, 1998, order in the dependency-neglect case is irrelevant in the determination of Goodrich's delinquency. Consequently, we need not address this argument, as the validity of this order will not affect the outcome of this case.

Goodrich next asserts the trial court erred in refusing to appoint the public defender to represent her in her capacity as a parent in the dependency-neglect case in a hearing held March 10, 1999, in conjunction with both the delinquency case and the DHS case. Goodrich's counsel argued that the criminal case should not go forward until Goodrich had counsel appointed for her in theDHS case to "undo" what DHS had done. The trial court found that the public defender could not represent Goodrich because he had made a deal with DHS in the past about his keeping foster children and his representing children against the department and stated that he would appoint another attorney for Goodrich. In order to find error, Goodrich must show that the court's decision to appoint counsel other than the public defender in the DHS case prejudiced her in this case. See e.g. Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999). While it is true that the right to counsel is the equivalent of the right to effective counsel or there is otherwise a denial of due process, Evitts v. Lucey, 469 U.S. 387 (1985), Goodrich's public defender presented no evidence that Goodrich lacks effective counsel in dependency-neglect case. Moreover, though Ark. Code Ann. § 9-27-316(2) allows the public defender to be appointed to such cases, it does not require it. Therefore, Goodrich has not shown that the failure to appoint the public defender to her DHS case prejudiced her in the criminal case, and the trial court did not commit reversible error.

Next, Goodrich argues that the trial court erred in its failure to assess criminal penalties against DHS as her guardian and custodian. While the chancery court considered Goodrich's disposition, her attorney asked the court to impose punishment on DHS because it was "in loco parentis" and it "created" the situation before the court. Counsel argued that the court could require DHS to perform 160 hours of community service or fine it $500. The court orally refused to do so. Goodrich now claims this is reversible error. She is incorrect. First, Goodrich must show that she was prejudiced by this ruling. See Camp, supra. Even if Goodrich could show she was prejudiced by this ruling, the trial court is not authorized in a juvenile proceeding to assess fees against DHS. The Juvenile Code provides that when a juvenile is adjudged delinquent the court may, among other things:

(6) Assess a court cost of no more than thirty-five dollars ($35.00) to be paid by thejuvenile, his parent, both parents, or his guardian;

(7)(A) Order restitution to be paid by the juvenile, a parent, both parents, the guardian, or his custodian.

(B) If the custodian is the State of Arkansas, both liability and the amount which may be assessed shall be determined by the Arkansas State Claims Commission;

(8) Order a fine of not more than five hundred dollars ($500) to be paid by the juvenile, a parent, both parents, or the guardian;

(9) Order that the juvenile and his parent, both parents, or the guardian perform court-approved volunteer service in the community, designed to contribute to the rehabilitation of the juvenile or to the ability of the parent or guardian to provide proper parental care and supervision of the juvenile, not to exceed one hundred sixty (160) hours;

Ark. Code Ann. § 9-27-330(6)-(9) (Repl. 1998).

The Code defines "custodian" in part as "a person, agency or institution to whom a court of competent jurisdiction has given custody of a juvenile by court order." Ark. Code Ann. § 9-27-303(9). DHS, as the agency which had been given custody of Goodrich and her daughter, was their "custodian" for purposes of statutory provisions assessing costs and restitution in delinquency proceedings. See Ark. Code Ann. § 9-27- 330(5-7) (Repl. 1998); see also Arkansas Dept. of Human Services v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). The statute does not authorize assessment of community service or fines against the custodian; it only authorizes restitution. See Ark .Code Ann. § 9-27-330 (7)-(8) (Repl. 1998). Restitution was not an issue in this case. Further, even if the chancery court had the authority to impose fines and community service against DHS, it was not required to do so. The statute authorizing dispositions in the best interest of the child states that the court "may enter an order. . ." See Ark. Code Ann. § 9-27-330. As a general rule, the use of the word "may" in a statute indicates that the provision is discretionary, rather than mandatory. See, e.g., Hooper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997). Finally, the trial court's order did, in fact, require DHS to be jointly liable for Goodrich's "fees and fine." For the foregoing reasons, Goodrich's argument on this point has no merit.

Affirmed.

Crabtree and Jennings, JJ., agree.