Amy Anne Gilbert v. Dean Richardson and Sheron Richardson
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION I
CA05-936
AMY ANNE GILBERT
APPELLANT
May 17, 2006
AN APPEAL FROM WASHINGTON
COUNTY CIRCUIT COURT
[JV2005-26-3]
V.
HON. STACEY A. ZIMMERMAN, JUDGE
DEAN RICHARDSON and
SHERON RICHARDSON
APPELLEES
AFFIRMED IN PART;
DISMISSED IN PART
This case arises from an order adjudicating the daughters of appellant Amy Gilbert
to be dependent-neglected. Appellant asserts that the trial judge who entered the adjudication
order erred when she recused herself but failed to grant a new trial. Appellant also asserts
that the subsequent judge to whom the case was reassigned erred in failing to grant her a new
trial because the decision was contrary to the law and was against the preponderance of the
evidence.
We dismiss in part because appellant’s motion for a new trial was deemed denied and
she thereafter failed to properly appeal from the deemed denial of her motion. In addition,
we summarily affirm the underlying adjudication order because appellant has abandoned any
argument regarding the order since she offers no separate argument based on that order.
Prior to the dependency-neglect petition filed in the instant case, appellees, Dean and
Sheron Richardson, who are appellant’s parents and the grandparents of the children
involved in this case, were awarded temporary custody of appellant’s daughters due to
appellant’s instability and drug usage. In that prior action, presided over originally by Judge
Michael Mashburn and then by Judge Stacey Zimmerman, appellant regained custody of her
two daughters on July 18, 2003, and was ordered to remain drug-free.
The instant appeal arises from a subsequent petition for dependency-neglect filed on
January 11, 2005.
The petition was based on appellant’s two drug-related arrests in
Washington and Sebastian County in November and December 2004, and it asserted that
appellant failed to remain drug-free. It also alleged that the girls were at substantial risk of
serious harm as a result of appellant’s continued drug use. Finally, the petition also cited the
children’s “large number of tardies” during the previous school year.
At the probable cause hearing, Judge Zimmerman heard testimony from the arresting
officers concerning appellant’s arrests in late 2004. Michael Hendrix, an officer of the
Springdale Police Department in Washington County, testified that he was a certified drugrecognition expert. He saw appellant in the parking lot of a grocery store, placing items
commonly used to manufacture methamphetamine in her car, namely, over 2500 books of
matches, Coleman camping fuel, two bottles of isopropyl alcohol, and two bottles of
hydrogen peroxide. As Hendrix spoke to appellant, he observed that she was “real jittery”
and “very nervous,” that she talked nonstop, that she had scabs on her face and legs, that her
face appeared “worn,” and that she had bruises on her legs and track marks or puncture
marks on each side of the brachial artery in her arm. Hendrix explained that the track marks
were signs of intravenous drug usage. He also smelled a strong chemical odor in appellant’s
car, which he associated with manufacture of methamphetamine. Based on this activity,
appellant was charged in Washington County with possession of drug paraphernalia with
intent to manufacture methamphetamine.
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While awaiting trial on the Washington County charge, appellant was arrested in
Sebastian County for possession of methamphetamine with intent to deliver and possession
of drug paraphernalia. Officer Josh Lovan of the Fort Smith Police Department testified that
he obtained a cell phone from another suspect who was arrested on drug-related charges.
The cell phone rang and the caller asked for Mikey. Lovan indicated that he was Mikey and
the caller asked if he was going to bring her “stuff.” Assuming that the caller wanted
methamphetamine, Lovan made arrangements to meet the caller at a car wash. When he
arrived at the car wash, appellant was standing outside of a vehicle and a seventeen-year old
female was with her. Lovan originally identified himself as Mikey, but ultimately identified
himself as an officer, told appellant that he knew she was there to buy drugs, and asked her
to surrender any kind of drug paraphernalia in her possession. Appellant indicated several
times that she did not have any drugs or syringes, but eventually surrendered from her purse
two syringes and three baggies containing what Lovan described as “a sizable amount of
methamphetamine.”
According to Lovan, appellant also admitted that she had used
methamphetamine earlier that day.
Judge Zimmerman also heard testimony that appellant had taken her daughters out of
school in January and requested that their records be sent to Massachusetts, but then returned
to Arkansas, causing the girls to miss two weeks of school. Appellant insisted that she only
intended to stay for the weekend and that she went to Massachusetts to marry her fiancé, but
intended to return to Arkansas to resolve her criminal charges. She said that she was forced
to stay in Massachusetts because appellee Dean Richardson locked her out of her house when
she left and told her that she had no home.
Appellant admitted that the Veteran’s
Administration had stopped providing her with medication for her bipolar condition due to
her drug charges.
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Judge Zimmerman found that appellant’s testimony was not credible and that, based
on appellant’s history of drug usage and the conduct that led to her recent arrests, probable
cause existed to support that the children were dependent-neglected. The children were again
placed in the temporary custody of appellees. The judge also ordered that appellant have no
contact with her daughters. Although appellant passed the drug test administered that day,
the judge ordered that appellant submit to a hair-follicle test within seven days.
On March 1, 2005, appellant appeared in Sebastian County Circuit Court and pleaded
guilty or no contest (the record is unclear) to possession of methamphetamine and possession
of drug paraphernalia, both Class C felonies. She received a suspended sentence of sixty
months that was contingent upon completing drug court in Washington County. The record
did not indicate a disposition on the Washington County charges.
Two days later, Judge Zimmerman also presided over the adjudication hearing.
Essentially, the same evidence was presented as was presented at the probable-cause hearing,
with the additional evidence that appellant “failed” the hair-follicle test, testing positive for
amphetamine and methamphetamine. Judge Zimmerman determined that the children were
dependent-neglected and indicated orally that the finding was based on: 1) the fact that
appellant allowed her bipolar condition to go untreated after the Veteran’s Administration
ceased providing her medication due to her then-pending drug charges; 2) appellant’s felony
possession of methamphetamine in Sebastian County in December 2004; 3) the fact that
appellant had her children in her possession the day after she was arrested for using
methamphetamine; 4) the fact that, despite appellant’s testimony that she had not used
methamphetamine since 1987, the results of the hair-follicle test performed on February 18,
2005, were positive for methamphetamine and amphetamine; 5) the fact that appellant placed
the children in harm’s way by continuing to use drugs; 6) the fact that appellant posed a flight
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risk, as evidenced by her prior conduct of leaving Arkansas and requesting that the children’s
records be transferred; 7) the fact that appellant manifested an indifference to discharging
her duties as evidenced by her poor choices, her use of drugs, and her plea involving a drugrelated crime.
On March 21, 2005, Judge Zimmerman issued a written adjudication order stating that
appellant’s daughters were adjudicated to be dependent-neglected as a result of appellant’s
unfitness. This order incorporated the judge’s oral findings, stating that she found that
appellant’s daughters were at a substantial risk of serious harm as a result of appellant’s acts
and omissions for “those reasons announced from the bench.”
On March 31, 2005, appellant filed a motion for a new trial and a separate motion
asking Judge Zimmerman to recuse. The motion to recuse is not the subject of this appeal
but is related to appellant’s arguments concerning her motion for a new trial. The motion to
recuse was based on the following comment that Judge Zimmerman made in the prior case,
in a hearing held on July 18, 2003:
J UDGE:
Oh, there she is. That [sic] if I were Ms. Watson [appellees’ then
attorney], Ms. Gilbert, and you fell off the wagon again, I would file a
dependent-neglect action, and I’d ask for permanent custody, and she’ll
probably get it, and then I can do that, and I won’t get reversed. True,
Ms. Watson?
W ATSON:
Yes.
J UDGE:
I just wanted everybody to know that. Okay, thank you.
The motion for a new trial was based on Arkansas Rule of Civil Procedure 59(a)(1),
which allows for a new trial due to an irregularity in the proceedings that materially prevent
a party from having a fair trial. Appellant specifically asserted that Judge Zimmerman’s
“bias” against her, as demonstrated by the comments that were the basis for the motion to
recuse, materially prevented appellant from receiving a fair trial.
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Appellant also requested a new trial based on Rule 59(a)(6), which allows for a new
trial if the decision is contrary to the law. Appellant asserted that she was found to be unfit
because of certain drug-related criminal charges, one of which was possession of drug
paraphernalia with intent to manufacture methamphetamine. However, because the items she
possessed were not drug paraphernalia under Arkansas law, she maintained that she could
not be guilty of possession of drug paraphernalia with intent to manufacture
methamphetamine and thus, her purchase of the items was lawful and cannot constitute a
basis for finding she was unfit.
Finally, appellant asserted entitlement to a new trial pursuant to Rule 59(a)(6) because
the adjudication determination was clearly contrary to the evidence. She specifically argued
that there was no evidence that she was unfit and that there was no evidence that her
daughters had been adversely affected or placed at substantial risk of harm.
At the hearing on the motion to recuse, Judge Zimmerman explained that her
comments were merely an admonition, but acknowledged that, when the remarks were taken
in isolation, “I could see how Ms. Gilbert might think I have it in for her.” Accordingly,
Judge Zimmerman agreed to recuse. Moreover, because Judge Zimmerman recused, she did
not rule on the motion for a new trial, stating, “I don’t think, in candor, I should even rule on
that motion for a new trial since I’m recusing.”
The case was reassigned to Judge Michael Mashburn, who originally presided over
the prior action involving appellant and her children. An order reassigning the case to Judge
Mashburn was entered on April 29, 2005; an order of recusal was entered on May 2, 2005.
Judge Mashburn reviewed the tape recordings of the hearing and the record produced at the
adjudication hearing. He entered an order on June 1, 2005, denying the motion for a new
trial for essentially the same reasons that Judge Zimmerman determined that the children
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were dependent-neglected.
Judge Mashburn found that appellant was unfit, that her
daughters were dependent-neglected, and denied the motion for new trial.
Appellant purports to appeal from the denial of the motion for a new trial, which
would necessarily bring up for review any underlying orders, including the adjudication
order. Ark. R. App. P. – Civil 2(b). However, we dismiss that portion of appellant’s appeal
relating to her motion for a new trial because the motion was deemed denied on May 2, 2005,
and appellant has not timely appealed from that denial.
The adjudication order was entered on March 21, 2005. The motion for a new trial
was timely filed within ten days thereafter, on March 31, 2005. See Ark. R. Civ. P. 59(b).
The timely filing of a motion for new trial normally extends the time for filing a notice of
appeal until thirty days from the entry of the order disposing of the last motion outstanding.
Ark. R. App. P. – Civil 4(b)(1). However, if the trial court neither grants nor denies the
motion, it is deemed denied as of the thirtieth day and the notice of appeal shall be filed
within thirty days from that date. Ark. R. App. P. – Civil 4(b)(1).
In this case, the motion for a new trial was deemed denied on May 2, 2005, because
it was neither granted nor denied within thirty days of its filing on March 31, 2005.1
Therefore, pursuant to Arkansas Rule of Appellate Procedure – Civil 4(b)(2), appellant’s
notice of appeal from the deemed denial of her motion should have been filed no later than
June 1, 2005. While appellant filed a notice of appeal on May 31, 2005, in that notice of
appeal, she appeals only from the March 21 adjudication order. Thus, she has submitted to
this court no timely notice of appeal from the deemed denial of her motion for a new trial.
Accordingly, we dismiss that portion of appellant’s appeal relating to the denial of her
1
The thirtieth day after filing was April 30, which was a Saturday. Therefore,
according to Arkansas Rule of Civil Procedure 6(a), the end of the period was May 2, the
following Monday.
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motion for a new trial.2
Further, although appellant appeals from the underlying adjudication order, she raises
no separate argument concerning the sufficiency of the evidence supporting the adjudication
order. As such, we do not address any argument based on the adjudication order because
appellant has abandoned any appeal related to that order. Marshall v. Madison County, 81
Ark. App. 57, 98 S.W.3d 452 (2003) (refusing to address issues abandoned on appeal).
Affirmed in part; dismissed in part.
G LADWIN and N EAL, JJ., agree.
2We note that the June 1, 2005 order entered by Judge Mashburn purporting to deny
appellant’s motion for a new trial is without effect because the judge failed to act on the
motion within the thirty-day period following its filing, and thus, lost jurisdiction to
thereafter rule on that motion. See Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823
S.W.2d 902 (1992); Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Sudrick, 49 Ark.
App. 84, 896 S.W.2d 452 (1995).
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