Arkansas Department of Human Services v. Ruth Jackson and James Jackson

ca02-802

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CA02-802

May 14, 2003

ARKANSAS DEPARTMENT AN APPEAL FROM PULASKI COUNTY

OF HUMAN SERVICES CIRCUIT COURT

APPELLANT [JN 1999-338]

v.

HONORABLE RITA GRUBER,

RUTH JACKSON and CIRCUIT JUDGE

JAMES JACKSON

APPELLEES AFFIRMED

Appellant Arkansas Department of Human Services ("DHS") appeals the order of the Pulaski County Circuit Court ordering it to pay adoption subsidies and board payments to appellees Ruth and James Jackson for the purpose of allowing appellees to adopt two dependent-neglected children in appellees' care. There is no adoption petition pending. On appeal, DHS argues that, because the children were not in DHS's custody when the children were placed by their mother with appellees, the trial court lacked statutory authority to order DHS to make the payments. We affirm, albeit for a different reason than that given by the trial court.

The facts in this case are largely undisputed. This case began on April 5, 1993, when DHS sought and was granted emergency custody of J.H. and H.H. in the Juvenile Division of the Chancery Court of Crittenden County. Melissa "Lisa" Humphrey is the mother of thechildren. The Crittenden County court adjudicated the children dependent and neglected on May 17, 1993. A third child, C.H., was born to Melissa Humphrey in November 1993. DHS took custody of C.H. by emergency order of the Crittenden County court on January 24, 1994. C.H. was adjudicated dependent and neglected on March 14, 1994. Jonathan had died by the next review hearing on May 2, 1994.1 At that hearing, the Crittenden County court maintained the children in DHS custody because the parents had not complied with the case plan. Melissa Humphrey was released from prison in 1997 and moved to Little Rock, where the Pulaski County office was ordered to assist in providing services. The Crittenden County court held a review hearing in October 1998. The children were returned to the custody of Melissa Humphrey, and DHS was ordered to maintain a protective-services case on the family. The Crittenden County court transferred the case to Pulaski County, which accepted jurisdiction on February 8, 1999.

The Pulaski County court held a review hearing on August 2, 1999. Stephanie Beasley, a DHS caseworker, testified that the children were with Melissa Humphrey from May 1998 until May 1999, when she voluntarily placed the children with relatives due to her inability to care for them. Appellee Ruth Jackson testified that C.H. had been with her since May 1999. She also testified that she had discussed taking care of both children with Ms. Beasley and that she was able to care for both children. Melissa Humphrey testified that she agreed with the placement with appellees. The trial court placed both children in appellees' custody.

At the December 13, 1999, review hearing, appellees broached the subject of their need for financial assistance or a subsidized adoption. DHS objected to the request. DHS was ordered to maintain an open protective-services case, and the issue of permanency was referred to mediation.

At the June 12, 2000, review hearing, DHS argued that appellees were not eligible for financial assistance in the form of the adoption subsidy because the children were placed with appellees by their mother, Melissa Humphrey, instead of DHS. DHS further argued that DHS would have to have legal custody of the children in order to place the children with appellees, which would require their removal from appellees' home. Appellees were noted as being approved foster parents.

Appellees filed a petition to intervene to seek financial assistance from DHS. The basis for seeking intervention was that appellees had custody of the minor children. The trial court granted intervention in the order following the January 18, 2001, review hearing.

At the January 2001 hearing, Leisha Myles, a DHS area manager for Pulaski County and a supervisor of the child welfare program, opined that appellees were not eligible for Medicaid but that appellees might be eligible for another form of financial assistance - kinship care - after the court awarded custody to appellees.

Appellee Ruth Jackson testified at the September 19, 2001, hearing that C.H. had been tested and determined to be speech impaired but had overcome the impairment. She stated that she receives $200 per month in food stamps, $299 in housing assistance, and daycare assistance of $45 per week. She also testified that her husband's gross wages were $891.52every two weeks. She also stated that she cared for another foster child placed by DHS. She testified that she was denied TEA benefits because of her degree of kinship with the children. Caroline Banks, a DHS family service worker supervisor, testified that she recalled meetings with appellees dating back to 1999 wherein appellees requested financial assistance. She also testified that, based on conversations with the caseworker (Ms. Beasley) and meetings with appellees, it was in the best interest of the children to stay with appellees.

The trial court ordered DHS to pay an adoption subsidy and board payments to appellees. The trial court reasoned that, because the children had been adjudged dependent and neglected, the court could order DHS to provide "family services" as defined in Ark. Code Ann. § 9-27-303. The court also noted that appellees had expressed an interest in adopting the children but were not financially able to do so without the subsidy. The board payments were made retroactive to January 18, 2001, when appellees qualified as approved foster parents. This appeal followed. The trial court denied DHS's request for a stay pending appeal, as did the supreme court.

In equity matters, such as dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the judge's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Wade v. Arkansas 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 on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. However, a trial court's conclusion on a question of law is given no deference on appeal. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d1 (2000); City of Lowell v. M&N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).

DHS raises one issue on appeal, arguing that the trial court was without statutory authority to order either an adoption subsidy or board payments because the children were not in DHS custody when placed with appellees. Although we agree that the trial court lacked statutory authority to order DHS to pay "adoption subsidies" or "board payments," we believe that there was other statutory authority to require DHS to financially assist appellees.

The trial court ordered DHS to pay appellees "adoption subsidies" under Ark. Code Ann. § 9-9-402 (2002). DHS argues that appellees do not qualify for the subsidy because the children were not in DHS custody. Section 9-9-402, part of the 1979 Arkansas Subsidized Adoption Act, provides: "As used in this subchapter, unless the context otherwise requires, _child' means a minor as defined by Arkansas statutes, who is: (1) In the custody of the Department of Human Services; and (2) Legally free for adoption; and (3) Has been determined to be a child with special needs...." The trial court, relying on Arkansas Department of Human Services v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998), analyzed the case more on the basis of a family-services case but did not consider the requirement of Ark. Code Ann. § 9-9-402 that the children be in the custody of DHS. We believe that, under the clear language of the statute, appellees do not qualify for the adoption subsidy because the children were not in the custody of DHS. We also do not believe that there has been any showing that the children are legally free for adoption: the record does not show that the mother's parental rights have been terminated, a necessary step prior to any adoption. Further, there is no adoption pending.

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).

Section 9-9-402 was amended in 1999 to read as set out above. Appellees argue that, because this case was commenced prior to that time, the amendment cannot be applied to this case. The general rule is that statutes operate prospectively only unless there is express language that it shall apply retroactively. Gannett River States Publ'g Co. v. Arkansas Indus. Dev. Comm'n, 303 Ark. 684, 799 S.W.2d 543 (1990). Here, the case began in 1993 when the children were taken into DHS custody. Appellees' request for financial assistance was made during the December 1999 review hearing, after the amendment to section 9-9-402 was effective. The prior version, Ark. Code Ann. § 9-9-402 (1998), unchanged from 1993, provided: "As used in this subchapter, unless the context otherwise requires, _child' means a minor as defined by Arkansas statutes, who is: (1) A dependent of a public child-placing agency; and (2) Legally free for adoption; and (3) In special circumstances...." Appellees argue that, despite the children being in appellees' custody, they qualify under the prior statute because the children are dependent on a public child-placing agency - DHS. However, they cite no authority for this proposition. Appellees focus most of their argument on the fact thatthe children have "special needs," i.e., an emotional attachment to appellees, without addressing the other requirements of the statute.

Even though the trial court did not have the authority to order DHS to make the adoption subsidies and board payments, we believe that there is authority to require DHS to pay appellees for providing care for the children pursuant to Ark. Code Ann. § 9-27-303(23) (2002). When children are found to be dependent-neglected, Ark. Code Ann. §§ 9-27-334(a)(1)(A), (2)(A) (2002) authorizes the court to order DHS to provide family services and to transfer custody of the child to a relative or other individual.

Here, appellees are distantly related to the children and would in any event qualify as "other individuals." From the time the children were returned to their mother and the case was transferred to Pulaski County, DHS had been ordered to maintain a "protective services" case for the children and could have been ordered to provide services on that basis even though the children were not in DHS custody. See Arkansas Dep't of Human Servs. v. T.B., 347 Ark. 593, 67 S.W.3d 539 (2002); Arkansas Dep't of Human Servs. v. Clark, 304 Ark. 403, 802 S.W.2d 461 (1991) ("Clark I").

DHS recommended the mother's placement of the children with appellees, and the trial court approved that placement. The trial court was looking at the long-term best interests of the children. Under Ark. Code Ann. §§ 9-27-338(a)(4)(C), (D) (2002), the trial court could approve a plan to obtain a permanent guardian or custodian for the children. A "custodian" is defined in Ark. Code Ann. § 9-27-303(13) (2002) as "a person ... to whom a court of competent jurisdiction has given custody of a juvenile by a court order." Appellees qualify as "custodian" under this definition. "Family services" are provided to prevent the removal ofchildren from a parent, guardian, or custodian and include relevant services, such as child care or cash assistance provided to a juvenile. ··²7041-15²····²7041-15²·· Ark. Code Ann. § 9-27-303(23) (2002). "Family services" are also authorized in order to implement a permanent plan of adoption, guardianship, or rehabilitation of a juvenile. Ark. Code Ann. §9-27-303(23)(B)(iii) (2002). Here, appellees requested financial assistance in order to continue to be able to care for the children.

DHS argues that board payments cannot be considered as cash assistance under section 9-27-303 because board payments go to "foster parents" while "cash assistance" goes to the juvenile or his family. This is a distinction without a difference because, in both situations, the money goes to assist the family unit as a whole, and financially assisting appellees would serve to prevent removal of the children from appellees' home. Ark. Code Ann. § 9-27-337(b)(1)(B) (2002); Clark I, supra. Until there is a permanent order of guardianship or custody, under Ark. Code Ann. § 9-27-337(b)(1)(B), the trial court could determine and include in its orders a finding of whether the case plan, services, and placement meet the special needs and best interests of the children and whether DHS has made reasonable efforts to provide family··²4952-341²····²4952-341²·· services. We believe that, under this statutory authority, the trial court could order DHS to pay appellees the amount due for the care and services provided to the children for the period of time that DHS requested that the children be placed with appellees.

It does not matter in this instance that the trial court cited the wrong statute in its order, because section 9-27-303(23), in pertinent part, provides the same relief. When a trial court reaches a correct result, but on the wrong basis, this court can affirm on the correct basis. Durham v. Arkansas Dep't of Human Servs., 322 Ark. 789, 912 S.W.2d 412 (1995).

Affirmed.

Roaf, J., agrees.

Pittman, J., concurs.

1 Melissa Humphrey apparently was incarcerated for the death of Jonathan.