Arkansas Department of Human Services v. Marzell Hampton

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-370

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION I

ARKANSAS DEPARTMENT OF

HUMAN SERVICES

APPELLANT

V.

MARZELL HAMPTON APPELLEE

CA 05-370

November 16, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION [CV 04-9249]

HONORABLE BARRY A. SIMS,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, the Arkansas Department of Human Services (DHS), sought judicial review of an order in which the Office of Appeals and Hearing (OAH) found that the Division of Children and Family Services (DCFS) had failed to prove that appellee, Marzell Hampton, had engaged in child maltreatment. The trial court dismissed appellant's petition, finding that it had not been timely filed. For its sole point of appeal, appellant contends that the trial court erred in calculating the date that the petition for review was due. We affirm the dismissal.

On July 16, 2004, the Hampton hearing was held before the OAH. OAH issued its final order on July 23, 2004, finding in favor of Hampton. On August 25, 2004, DHS filed its petition for judicial review in Pulaski County Circuit Court. Hampton filed a motion to dismiss the petition for review on October 6, 2004, arguing that the petition had not been timely filed. On October 28, 2004, the circuit court filed its order dismissing the petition for review, finding that it was not timely and that the circuit court therefore

lacked subject-matter jurisdiction. On November 9, 2004, DHS filed a "motion for entry of new judgment" pursuant to Rule 59 of the Arkansas Rules of Civil Procedure. That motion was deemed denied on December 9, 2004, when it was not ruled upon within thirty days. This appeal followed.

In contending that the trial court erred in calculating the date upon which the petition for judicial review was due, DHS makes two arguments: 1) the circuit court should have added three days to the period allowed to serve the petition for judicial review, 2) DHS had thirty days from the time it was served with the final order to respond.

1) Additional Three Days

Under this first subpoint, appellant contends that the trial court did not give proper consideration to Rule 6(d) of the Arkansas Rules of Civil Procedure in calculating the due date for the petition. Rule 6(d) provides:

(d) Additional Time After Service by Mail or Commercial Delivery Company. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or commercial delivery company, three (3) days shall be added to the prescribed period. Provided, however, that this subdivision shall not extend the time in which the defendant must file an answer or preanswer motion when service of the summons and complaint is by mail or commercial delivery company in accordance with Rule 4.

(Emphasis added.) DHS argues that this rule applies to the filing of a petition for judicial review; that the OAH final order was signed on July 23, 2004; that thirty days later was August 22, a Sunday; and that adding three days to the thirty-day time requirement would

set the deadline for filing the petition for judicial review at August 25, 2004, which was when it was filed.

The problem with this argument is that Rule 6(d) only applies in situations in which the documents are served by mail or commercial delivery service. Here, we have no idea if that is the manner in which the final order was served on DHS. See discussion infra, regarding appellant's duty to provide us with a sufficient record. We recognize that DHS's own regulations specifically designate certified mail - return receipt as the method of providing service; however, the fact that the DHS regulations require this specific type of service does not establish that service was actually accomplished in that fashion. We cannot reverse a trial court based on speculated facts.

2) Thirty Days from Date of Service

Under this second subpoint, DHS contends that the time for filing a petition for judicial review "begins once a party is served with the agency's final order as required by the Administrative Procedures Act and the agency's own policies," and that there was "no proof that the OAH final order was ever served as required."

DHS notes that the trial court made no finding regarding when, or if, the final order was served on DHS "in the manner required by law and agency policy," and argues that the trial court should have conducted a brief hearing on the issue. Instead, DHS notes, the trial court conducted no hearing and did not even issue a written order denying DHS's motion "for entry of new judgment"; rather, the motion was deemed denied after the passage of thirty days.

Arkansas Code Annotated section 25-15-210 (c) (Repl. 2002) provides: "Parties shall be served either personally or by mail with a copy of any decision or order." (Emphasis added.) Section 25-15-212(b)(1) (Repl. 2002) provides: "Proceedings for review shall be instituted by filing a petition within thirty (30) days after service upon petitioner of the agency's final decision . . . ." (Emphasis added.) According to DHS, the regulations contained in the Family Services Policy and Procedure Manual provide:

Regulation 1098.18.

Findings of Fact, Conclusions of Law, and Final Agency Determination: Each OAH decision will be in writing and will separately set out findings of fact, conclusions of law, and a final agency determination as provided in the APA. OAH will furnish each party a copy of the findings of fact, conclusions of law, and final agency determination by mailing a copy to the party's last known address by certified mail, return receipt requested.

(Emphasis added.)

Regulation 1098.2.14.

Party: the person asking for the administrative adjudication, and the DHS division or office, acting through its employees, that made the decision or took the action being appealed.

OAH's final order was signed on July 23, 2004; it was faxed to Hampton's attorney (Booker) on the same date; and the return receipt for certified mail establishes that receipt by mail was had by Hampton's attorney on July 27, 2004. In Hampton's motion to dismiss and response to petition for judicial review, she asserted in paragraph 1 that "the Petitioner [DHS] is attempting to seek judicial review of an agencies decisions [sic] that were served on the Petitioner on July 23, 2004. See attached, Exhibit A." (Emphasis added.) It is critically detrimental to our review of the matter that neither the addendum nor the record contains the "Exhibit A" that was relied upon by Hampton to establish that DHS was served with the agency decision on July 23, 2004. However, while DHS tries to use the absence of Exhibit A and any other proof to its advantage, i.e., "the administrative record is devoid of any proof that the final order was ever delivered to" DCFS or its attorney at DHS, that fact actually works to DHS's disadvantage because it is the appellant's duty to bring up a sufficient record to enable this court to consider the issues raised. Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147 (2000). With DHS trying to establish that the trial court erred in dismissing its petition for judicial review on the basis that it was untimely, it is incumbent upon DHS to provide us with a sufficient record to enable us to consider the issue. From the record before us, we are not able to do so because a critical fact is missing - the date that DHS was "served" with the final order.

The trial court, presumably with the missing exhibit in front of it, determined that the petition was not timely filed. Moreover, according to the statute, service can be either personal or by mail. While the regulation cited by DHS limits accomplishment of service to certified mail only, that does not necessarily mean that other methods of delivery would be totally ineffective. The fact that DHS first responded to the OAH order on August 25, 2004, evidences that DHS received the order on or before that date. Absent a clear record, it seems just as likely that the order was e-mailed, faxed, or hand delivered to DHS on the same date that it was signed, i.e., July 23, 2004. If that were the case, and without the three-day rule of ARCP Rule 6(d), then the thirty-day time limit ran out before DHS filed its petition on August 25, 2004.

In short, DHS has failed to provide this court with a record that demonstrates that the trial court erred in dismissing the petition. Without such a record, we would be forced to engage in speculation. Consequently, we find no basis for reversing the trial court's decision.

Affirmed.

Hart and Crabtree, JJ., agree.