Williams v. Ark. Dep't of Human Servs
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Cite as 2010 Ark. App. 672
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA10-615
SHEQUENA WILLIAMS
Opinion Delivered October
6, 2010
APPELLANT
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT,
[NO. JV-09-492]
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
AND
O.R. AND J.W., MINORS
APPELLEES
HONORABLE DAVID MARION
CLARK, JUDGE
APPEAL DISMISSED;
MOTION TO WITHDRAW DENIED
RAYMOND R. ABRAMSON, Judge
On March 17, 2010, the Faulkner County Circuit Court entered an order terminating
the parental rights of Shequena Williams to her two youngest children, O.R. (age 2) and J.W.
(age 1).1 In the termination order, the court found, by clear and convincing evidence, that
(1) Ms. Williams had been sentenced in a criminal proceeding for a period of time which
1
The children were initially removed from the home on August 14, 2009, after Ms.
Williams’s oldest child was admitted to Arkansas Children’s Hospital with head injuries
consistent with child abuse. The child later died from those injuries. On February 16, 2010,
Ms. Williams entered a negotiated plea of nolo contendere to second-degree murder in the
child’s death and received a nineteen-year sentence.
Cite as 2010 Ark. App. 672
would constitute a substantial period of the juvenile’s life and (2) Ms. Williams had subjected
a juvenile to an aggravating circumstance.2
The court further found that the Department had an appropriate placement plan in
place for the children—adoption; that the children were adoptable; and that there was a high
likelihood of adoption. But because the father’s rights had not yet been terminated, the court
found that adoptability might be an issue. The court determined that, if the rights of the
father, Anthony Roseburrow, were not terminated, the order terminating the mother’s rights
might be subject to being set aside or modified. The order stated that the court was retaining
jurisdiction and venue with a review hearing to be held.
Ms. Williams appeals from this order terminating her parental rights. Her attorney has
filed a motion to withdraw and a no-merit brief pursuant to Linker-Flores v. Arkansas
Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), asserting that there are
no issues of arguable merit to support the appeal. Counsel’s motion is accompanied by an
abstract and brief listing all adverse rulings made at the termination hearing and explaining
why there are no meritorious grounds for reversal. The clerk of this court sent copies of
counsel’s brief and motion to Ms. Williams informing her that she had the right to file pro se
points for reversal. See Ark. Sup. Ct. R. 6-9(i)(3). Ms. Williams filed a pro se points brief on
August 13, 2010.
2
Despite the fact that Ms. Williams pleaded nolo contendere to second-degree murder
for the death of her oldest child, the court did not make a specific finding under the statute
that Ms. Williams had been found by a court of competent jurisidiction to have committed
the murder or manslaughter of any juvenile. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(1).
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Cite as 2010 Ark. App. 672
Before we can reach the merits of this case, however, we must first determine whether
this particular order purporting to terminate Ms. Williams’s parental rights is a final, appealable
order. In Ford Motor Company v. Harper, 353 Ark. 328, 330, 107 S.W.3d 168, 169 (2003)
(citations omitted), our supreme court held
[w]hether a judgment, decree, or order is final is a jurisdictional issue that this court
has a duty to raise, even if the parties do not, in order to avoid piecemeal litigation.
Where no final or otherwise appealable order is entered, this court lacks jurisdiction
to hear the appeal. In order for a judgment to be final and appealable, it must dismiss
parties from court, discharge them from the action or conclude their rights to the
subject matter in the controversy.
While orders terminating parental rights are usually final, appealable orders, see Ark.
R. App. P.–Civ. 2(c)(3)(C), the trial court in this case reserved the right to change its ruling
at a later date. In its oral pronouncement, the trial court expressed its concern regarding the
issue of adoptability given that Mr. Roseburrow’s rights had not yet been terminated and
assured appellant’s counsel that Ms. Williams’s rights would be reinstated should Mr.
Roseburrow retain his rights. The court made the following comments at the termination
hearing:
The issues that I struggle with at this point in time, is the law states that the
termination should be granted only if the children are adoptable. I have found clearly,
that they meet the – I don’t want to say the physical characteristics to be adoptable,
but they meet that. The issue becomes the termination of the father. If his parental
rights are not terminated, the children, in essence, become not adoptable, because he
would have to consent to such an adoption. So I am at this point in time, I am going
to find that her parental rights should be terminated.
Ms. Free, I will tell you, that should we come to the Termination Hearing on
the father, and I find that his parental rights should not be terminated, I think if you
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Cite as 2010 Ark. App. 672
file a petition to have me set aside that Order, because at that point in time, the
children will no longer be adoptable, I’ll have to grant that.
So at this point in time, I am going to find that her parental rights should be
terminated, subject to possible reconsideration, should the Court determine that his
parental rights should not be terminated.
The issue of – Mr. Nichols, how far out do we want to set this for the next
Hearing, what in essence, would be the continuation of the Termination Hearing?
....
I’m going to terminate her parental rights. I am going to – but I will
specifically tell you, Ms. Free, and if you want to review the Order and have it
included in there, that should I find that the father’s parental rights aren’t terminated,
this Order terminating her rights will be set aside. Because, I mean, at that point in
time, the children are not adoptable.
....
I don’t even have a problem with – Mr. Nichols, when you prepare the Order
– that should a subsequent Court determine that Mr. Roseburrow’s parental rights
should not be terminated, her rights will, in essence, be reinstated.
(Emphasis added.)
In its written order, the court ruled that, if Mr. Roseburrow’s rights were not
terminated at a subsequent hearing, the order would be subject to being set aside or modified
because the children would no longer be adoptable. The court then retained jurisdiction with
a review hearing to be held. It is apparent from this record that the trial court believed that
the termination of Ms. Williams’s parental rights would not be final unless and until a
determination had been made as to Mr. Roseburrow’s parental rights. Thus, in actuality, the
termination of Ms. Williams’s parental rights in this case was conditioned upon a subsequent
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Cite as 2010 Ark. App. 672
order terminating Mr. Roseburrow’s parental rights. As the order did not conclude Ms.
Williams’s rights to the subject matter in the controversy, it was not a final, appealable order
and jurisdiction in this court is lacking.
Appellant’s counsel on appeal asserts that this jurisdictional issue is cured by the fact
that the law does not require the trial court to terminate as to both parents at the same time,
nor does it require the trial court to condition one parent’s termination on the future
termination of the other parent’s rights. See Griffin v. Arkansas Dep’t of Human Servs., 95 Ark.
App. 322, 236 S.W.3d 570 (2006). While counsel’s interpretation of the law is correct, the
order at issue here did, in fact, condition the termination of Ms. Williams’s parental rights on
the future termination of Mr. Roseburrow’s rights and expressly retained jurisdiction with
a review hearing to be held at a later date. Because this order is not a final, appealable order,
we are without jurisdiction to hear this appeal.
Appeal dismissed and counsel’s motion to withdraw is denied.
G LADWIN and G LOVER, JJ., agree.
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