Erica Suggs-Rendon v. Arkansas Department of Human Services

Erica SUGGS-RENDON v. ARKANSAS DEPARTMENT OF HUMAN SERVICES

04-970

Supreme Court of Arkansas
Opinion delivered October 14, 2004

Appeal & error - motion for rule on clerk - denied. - The record tendered on August 31, 2004, was tendered outside of the ninety-day time limit prescribed by Ark. R. App. P.-Civ. 5(a) with respect to the circuit court's second termination order regarding appellant's third child; although the tendered record also contained the circuit court's first termination order of December 4, 2003, which terminated appellant's rights to two other children, that order was the subject of a separate appeal with docket number CA04-253; the record had already been lodged in that appeal; the circuit court's second termination order of March 26, 2004, constituted a separate, appealable order, that would have been the subject of a separate appeal from the one already at issue in CA04-253; the two separate cases might have been consolidated upon motion, but the record of the circuit court's second termination order was not timely filed, and so appeal of that order was precluded; therefore, appellant's motion for rule on clerk was denied.

Motion for Rule on Clerk; denied.

Thomas B. Wilson, for appellant.

No response.

Per Curiam. Appellant, Erica Suggs-Rendon, moves the court for a rule on clerk. She states that the clerk refused to docket the record in her case when it was presented on September 8, 2004. She claims that the record was not untimely as she had previously filed motions requesting extensions of time in which to file a brief on appeal in the court of appeals based on the fact that additional time had been necessary to complete the record. Counsel for Ms. Suggs-Rendon states that he originally submitted part of the record on March 4, 2004, and that on September 8, 2004, the complete record of the case was presented to the court.

A review of the docket and the record reveals that Ms. Suggs-Rendon is the mother of three children: S.S., M.M., and M.R. On December 4, 2003, the circuit court entered its order terminating her parental rights as to S.S. and M.M. She promptly filed her notice of appeal and lodged the record regarding those two terminations with the clerk on March 4, 2004. A briefing schedule was set, and that appeal was docketed in the court of appeals as CA04-253.

While her appeal in that matter was proceeding, the circuit court continued its proceedings with respect to Ms. Suggs-Rendon's third child, M.R. On March 26, 2004, the circuit court entered its order terminating her parental rights as to M.R. On April 6, 2004, counsel for Ms. Suggs-Rendon moved the court of appeals for an extension of brief time in CA04-253. Counsel stated that certain hearings held over the course of 2002-03 needed to be transcribed. The court of appeals granted the extension in brief time, allowing counsel until August 11, 2004, in which to file a brief on Ms.Suggs-Rendon's behalf.

Counsel then filed a notice of appeal of the circuit court's termination of parental rights as to M.R. on April 13, 2004. A second motion for extension of brief time was filed on August 5, 2004, in CA04-253. In that motion, counsel asserted that while the transcripts of the hearings from 2002-03 had been completed, he needed more time to complete his brief. Accordingly, the court of appeals granted an extension of time, permitting counsel until November 9, 2004, in which to file his brief.

On August 31, 2004, Ms. Suggs-Rendon's counsel tendered a five-volume record of the circuit court proceedings to the clerk. Included within that record was the circuit court's termination regarding M.R., dated March 26, 2004. The Clerk of the Supreme Court rejected the record and advised Suggs-Rendon's counsel of the need to file a motion for rule on clerk.

We deny the motion for rule on clerk. It is clear that the record tendered on August 31, 2004, was tendered outside of the ninety-day time limit prescribed by Ark. R. App. P.-Civ. 5(a) with respect to the circuit court's second termination order regarding her third child, M.R. Although the tendered record also contains the circuit court's first termination order of December 4, 2003, that order is the subject of a separate appeal with docket number CA04-253. The record has already been lodged in that appeal. Should counsel wish to supplement the record of Ms. Suggs-Rendon's appeal of the circuit court's first termination order with respect to S.S. and M.M. in CA04-253, he should do so by way of motion to the court of appeals. The circuit court's second termination order constitutes a separate, appealable order, which would have been the subject of a separate appeal from the one already at issue in CA04-253. The two separate cases might have been consolidated uponmotion, but the record of the circuit court's second termination order was not timely filed, and any appeal of that order is now precluded.

Motion denied.