Rachel Forrest v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA03-125

September 3, 2003

RACHEL FORREST AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CIV 2001-1627]

v.

HONORABLE JOYCE WILLIAMS WARREN, CIRCUIT JUDGE

ARKANSAS DEPARTMENT OF HUMAN

SERVICES

APPELLEE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Rachel Forrest appeals the termination of her parental rights as to two of her children, M.F. and J.F. This case was initiated in Hot Spring County Circuit Court and subsequently transferred to Pulaski County Circuit Court. Appellant argues two points on appeal: (1) The Hot Spring County Circuit Court erred in denying her right to appointed counsel, and (2) The Hot Spring County Circuit Court erred in waiving the probable cause hearing and the adjudication hearing and in failing to hold a review hearing that met with the requirements of Ark. Code Ann. § 9-27-337 (Repl. 1998). We affirm.

On November 22, 2000, the Arkansas Department of Human Services (DHS) exercised a 72-hour hold on appellant's children, M.F. and J.F., based on a suspicion of intentional infliction of head trauma to J.F. and due to several environmental factors, such as lack of adequate food, clothing, and shelter.

A probable cause hearing was set for November 28, 2000, at which time the trial judge told appellant she had a right to a hearing, and asked her if she wanted to work with DHS to resolve the situation. When she replied in the affirmative, the judge responded, "All right. Then you will waive this hearing. In other words, you don't want them to testify about what all they have found and why they should have custody of the kids right now, temporarily; is that right?" Appellant again replied in the affirmative, effectively waiving her right to a probable cause hearing. Following this exchange, the court ruled that the children would remain in the custody of DHS. At no point during this hearing was appellant notified of her right to counsel.

An adjudication hearing was scheduled for January 9, 2001. At this time, DHS notified the trial court that intentional infliction of head trauma to J.F. had been ruled out by a medical examination of the child. Appellant requested counsel be appointed for her. This request was denied by the trial judge, who told her that he did not have an attorney for her and that one would not be appointed because the adjudication hearing was not a critical stage in the proceeding. The judge then persuaded appellant to waive the adjudication hearing, implying that this was a necessary step in transferring the case to Pulaski County and working with DHS to get the children back in the home. The court continued custody in DHS and ruled that the goal was reunification.

On July 10, 2001, a review hearing was held at which DHS acknowledged it had failed to have the case transferred to Pulaski County. The judge stated for the record that the Forrest case was reviewed and transferred to Pulaski County.

On October 25, 2001, a permanency planning hearing was held in Pulaski County. When that judge determined that counsel had not been appointed for appellant, she continued the case to allow time for an attorney to be appointed to represent appellant and saw to it that one was appointed that day. Another permanency planning hearing was held on November 19, 2001, at which time DHS requested that appellant be allowed additional time to continue working towards reunification. At a February 28, 2002, review hearing, the court adopted the agreement of the parties to continue prior orders, and continued the children in DHS custody.

A permanency planning hearing scheduled for May 16, 2002, was continued until May 28, 2002, at which time the court found it in the best interest of the children that the goal of the case be changed to adoption through termination of parental rights. Appellant's parental rights to M.F. and J.F. were terminated at a hearing held on October 17, 2002, and this appeal followed.

Arkansas Code Annotated section 9-27-316 (Repl. 1998) provides as follows:

(1) In all proceedings to remove custody from a parent or guardian or to terminate parental rights, the parent or guardian shall be advised, in the dependency-neglect petition or the ex parte emergency order and the first appearance before the court, of the right to be represented by counsel at all stages of the proceedings and the right to appointed counsel if indigent.

(2) Upon request by a parent or guardian and a determination by the court of indigence, the court shall appoint counsel for the parent or guardian in all proceedings to remove custody or terminate parental rights of a juvenile.

(3) After review by the court of an affidavit of financial means completed and verified by the parent or guardian and a determination by the court of an ability to pay, the court shall order financially able parents or guardians to pay all or a part of reasonable attorneys' fees and expenses for court-appointed representation of the parent or guardian.

(4) Appointment of counsel shall be made at a time sufficiently in advance of the court appearance to allow adequate preparation by appointed counsel and adequate consultation between the appointed counsel and the client. When the first appearance before the court is an emergency hearing to remove custody pursuant to § 9-27-315, parents shall be notified of the right to appointed counsel if indigent in the emergency ex parte order.

In Briscoe v. State, 323 Ark. 4, 912 S.W.2d 425 (1996), the supreme court noted that in proceedings to terminate parental rights or remove custody from the parent or guardian, the statutory provision of the right to an attorney, and to the appointment of one for an indigent person, is obviously mandatory.

Following the permanency planning hearing on November 19, 2001, Judge Warren allowed appellant additional time to continue working towards reunification because, in part, appellant had not had an attorney. Judge Warren went on record as saying she thought it a "travesty" that appellant had been denied representation, and we cannot argue with her assessment. Arkansas law clearly mandates the appointment of counsel for indigent parents in all proceedings to remove custody from a parent or guardian or to terminate parental rights where the parent or guardian request such. However, we may not address appellant's argument in this case because she failed to timely appeal from the order entered in the adjudication hearing.

Arkansas Rule of Appellate Procedure - Civil 2(c)(3) provides that orders resulting from adjudication and disposition hearings are final appealable orders where an out-of-home placement has been ordered. Appellant's failure to appeal from that final and appealable order deprives this court of jurisdiction to address her arguments on appeal. See Moore v. Arkansas Dep't of Human Servs., 69 Ark. App. 1, 9 S.W.3d 531 (2000).

Appellant's arguments regarding waiver of the probable cause and adjudication hearings likewise may not now be addressed because appellant failed to timely appeal from the January 2001 adjudication hearing. The issue of the insufficiency of the July 2001 review hearing was never raised below and cannot be raised for the first time on appeal. Ullom v. Arkansas Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). While we are unable to address these issues on appeal, we note that we are disturbed by the manner in which the Hot Spring County hearings were conducted. The situation and choices were presented to appellant and her husband in such a way as to indicate that the best way to regain custody of their children was to waive their rights to the hearings, thereby demonstrating their willingness to "work with" DHS. While Judge Warren's prompt appointment of counsel once the parties appeared before her court rendered harmless any error suffered by appellant, see Briscoe, supra, the Hot Spring County hearings were disturbing.

Affirmed.

Bird and Griffen, JJ., agree.