Gullick v. Arkansas Dep't of Human Servs.

John GULLICK v. ARKANSAS DEPARTMENT of HUMAN
SERVICES

95-830                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 4, 1996


Parent & child -- child subject to serious physical abuse -- 
     sufficient emergency existed for removal of child from the
     home. -- Where a child had been subject to serious and
     frightening physical abuse, there was no question that the
     situation necessitating her removal constituted an emergency;
     the appellee's investigation occurred as the result of an
     emergency situation, the serious physical abuse of the child
     by her father; the first affirmative action taken by a state
     agency for the purpose of seeking a custody disposition
     occurred on the very day when it appeared that the child would
     be returned to her father's custody; under the circumstances,
     such a return to parental custody constituted an emergency
     under Ark. Code Ann.  9-27-328(b); the order of the chancery
     court, placing the child in appellee's custody, was affirmed. 
        


     Appeal from Washington Chancery Court; Charles N. Williams,
Chancellor; affirmed.
     Steven S. Zega, for appellant.
     Deborah C. Reagan, for appellee.

     Bradley D. Jesson, Chief Justice.
     This appeal is brought by John Gullick, the father of Angela
Gullick.  He appeals from two orders of the juvenile division of
chancery court.  The first order, entered April 17, 1995, placed
Angela in the custody of the Department of Human Services.  The
second order, entered April 24, 1995, denied Mr. Gullick's petition
for a writ of habeas corpus seeking Angela's return to parental
custody.  We affirm.
     Angela is the younger of two daughters of John and Shariee
Gullick.  The girls have lived with their father most of their
lives, their mother not having been present for many years.  The
older daughter, Julia, was voluntarily placed into foster care by
John Gullick in 1993.  In November of 1994, the Department of Human
Services began an investigation into allegations that Mr. Gullick
had physically abused Angela.  The investigation revealed that on
November 10, 1994, Angela, along with her stepmother Debbie Gullick
and Debbie's child Amanda, returned home from a meeting to find
John Gullick enraged and possibly intoxicated.  Mr. Gullick wrapped
a jacket around Angela's neck and tried to choke her.  Angela was
twelve years old at the time.  She is also blind.
     Debbie Gullick left the home the next day, taking both Amanda
and Angela with her to a women's shelter in Fayetteville.  Mrs.
Gullick found her own place in December and moved out of the
shelter.  During this period, she maintained physical custody of
Angela.  Divorce proceedings began between Debbie and John Gullick. 
During the course of those proceedings, John Gullick asked the
chancellor to return custody of Angela to him.  Debbie Gullick,
having no biological relation to Angela, was required by the
chancellor to return Angela to her father.  The chancellor made his
ruling on Wednesday, January 25, 1995.  That same day, the
Washington County prosecutor's office filed a Family In Need of
Services (FINS) petition in the juvenile division of chancery
court.  The petition called for a hearing the following Monday and
prayed that the court order disposition of the care, custody and
control of Angela.  By amended petition on January 27, the
prosecutor incorporated the affidavit of Debbie Gullick, which
described the November 10 incident.
     After a request for a continuance by John Gullick, the hearing
was held on Thursday, February 2, 1995.  The prosecutor offered
substantial evidence that John Gullick wrapped a jacket around
Angela's neck and tried to choke her on November 10.  There was
also evidence that John Gullick had an alcohol-dependency problem,
had threatened witnesses regarding their testimony, and had
attempted suicide.  Finally, Ms. Weller, a child advocate at the
Fayetteville women's shelter, testified that Angela had told her
that she would run away if sent back to her father and that she
would rather kill herself than be returned to his custody.
     At the close of the hearing, the prosecutor and the guardian
ad litem recommended that Angela be placed in foster care.  The
prosecutor told the court that she was most concerned about
Angela's immediate safety and that she considered the situation an
emergency.  The judge declared that he wanted to put Angela in a
safe place and was especially mindful of Angela's statements that
she might run away or kill herself if returned to her father's
custody.  He ordered Angela placed into the custody of the
Department of Human Services and ordered the preparation of a case
plan with an eye toward reunification of the family.  
     The court's ruling was memorialized in an order entered April
17, 1994.  In the interim between the hearing and the entry of the
order, John Gullick filed a petition for a writ of habeas corpus. 
In the petition, he claimed that the court was required by Ark.
Code Ann.  9-27-328 (Repl. 1993) to make specific findings before
removing a child from a parent's custody and that, in the absence
of such findings, custody of Angela should be returned to him.  The
court denied the petition by order entered April 24, 1995. 
     On appeal, John Gullick argues that a juvenile court cannot
deprive him of the custody of his child unless the court takes the
steps and makes the findings mandated by  9-27-328(a).   That
statute, as it appeared on February 2, 1995, read as follows:
     Before a juvenile may be removed from the parent,
     guardian, or custodian of the juvenile by order of a
     juvenile court, excluding commitments to youth services
     centers, the court shall order family services
     appropriate to prevent removal or to reunify the family
     and, in its orders, make these specific findings:

     (1) Whether removal of the juvenile is necessary to
     protect the juvenile, and the reasons therefor;

     (2) Which family services were made available to the
     family before removal of the juvenile;

     (3) What efforts were made to provide those family
     services relevant to the needs of the family before the
     removal of the juvenile;

     (4) Why efforts made to provide the family services
     described did not prevent removal of the juvenile; and

     (5) Whether efforts made to prevent removal of the
     juvenile were reasonable, based upon the needs of the
     family and the juvenile.
     These findings are not to be viewed as mere formalities.  
Congress requires that, before a state may be eligible for federal
matching funds, the removal of a child from the home must be the
result of a judicial determination that "reasonable efforts"  were
made, prior to the placement of a child in foster care, to prevent
or eliminate the need for removal of the child from the home and to
make it possible for the child to return to his home.  See 42
U.S.C.  671(a)(15) and  672(a)(1).  Public Law 96-272, popularly
known as the Adoption Assistance and Child Welfare Act of 1980, 42
U.S.C.  670 - 676 (1985 and Supp. 1996), was passed by the
Congress for the purpose of shifting emphasis in federal programs
toward preventive services to allow children to remain safely at
home rather than being placed in foster care.  See generally In
Interest of S.A.D., 382 Pa. Super. 166, 555 A.2d 123 (1989). 
However, Arkansas law recognizes that there are certain situations
in which it may be impractical or unwise to leave a child in the
home.  Under Ark. Code Ann.  9-27-328(b), the federal requirement
that reasonable efforts be made to prevent removal of a child from
the home is deemed to have been met in the following situation: 
     Where the state agency's first contact with the family
     occurred during an emergency in which the juvenile could
     not safely remain at home, even with reasonable services
     being provided, the responsible state agency shall be
     deemed to have made reasonable efforts to prevent or
     eliminate the need for removal.

     Given the evidence in this case, Angela Gullick could not
remain safely at home with her father.  While living with him on
November 10, she had been subject to serious and frightening
physical abuse.  Further, there is no question that the situation
necessitating her removal constituted an emergency.  After the
November 10 incident, Angela was immediately removed from the
household under the protection of her stepmother.  When it became
clear during the divorce proceeding that Angela would be returned
to her father's custody, the prosecutor's office took prompt
action, filing a petition and seeking an immediate hearing.  
     Mr. Gullick argues that the state agency's "first contact" was
not during an emergency, as required by subsection (b).  He points
to the fact that the DHS began investigating the November 10
incident shortly after it occurred and that this "first contact"
occurred long before a petition was filed by a state agency.  Even
if we were to consider the investigation to be the "first contact"
for purposes of this statute, the investigation occurred as the
result of an emergency situation, that being the serious physical
abuse of the child by her father.  In any event, the first
affirmative action taken by a state agency for the purpose of
seeking a custody disposition occurred on January 25, 1995, the
very day when it appeared that Angela would be returned to her
father's custody.  Under the disturbing circumstances of this case,
such a return to parental custody constituted an emergency.
     Affirmed.
     Glaze, J., concurs.     



             Tom Glaze, Associate Justice, concurs.

     I concur.  At oral argument, the question was raised
concerning whether a final order had been entered in this cause
below from which appellant John Gullick could bring an appeal.  In
my opinion, there was not.
     The parties agree that this action started as a family in need
of supervision (FINS) case, and the custody of Gullick's child was
placed with the Department of Human Services (DHS).  In such cases,
DHS is to produce a case plan within thirty days of placement and
the case is subject to a periodic six-month court review until a
permanent order of custody is entered or the juvenile is returned
to the parent or the court has discontinued orders for family
services.  See Ark. Code Ann.  9-27-328, 9-27-332, 9-27-337
(Supp. 1995).
     This court has held many times that an order, decree, or
judgment must dismiss the parties from the court, discharge them
from the action or conclude their rights to the subject matter in
controversy before it is appealable.  This court has also held that
a trial court's temporary order awarding custody of a child is not
appealable if such custody case remains pending subject to a trial
on the merits.  See Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984); Ark. R. App. P. 2(a).  Citing the Chancellor
case, the court of appeals in Jones v. Jones, 41 Ark. App. 146, 852 S.W.2d 325 (1993), stated the rule as follows:
     . . . the Arkansas Supreme Court clarified the law
     regarding appealability of temporary child custody orders
     by holding that a mere temporary award of custody pending
     trial on the merits is not appealable, but an award of
     custody, even if expressly stated to be temporary, is
     final for purposes of appeal if the issue of custody was
     decided on the merits and the parties have completed
     their proof.  In the case at bar, the appellant's motion
     to expedite is grounded on her assertions that she had
     not yet completed her proof in this case.  Therefore, the
     decree in this case is a temporary award pending trial on
     the merits, and is nonappealable pursuant to Chancellor
     v. Chancellor.
     In the present case, the Washington County Juvenile Court
entered an order dated April 17, 1995, finding (1) the child and
her family are in need of services, (2) the child should be placed
with DHS, (3) Mr. Gullick was directed to perform a number of
duties (submit an affidavit of financial means, sign a release for
certain information, and submit to drug testing), and (4) the court
would conduct periodic six-month reviews.  Obviously, since the
trial court ordered certain directives to be done and other
hearings to be conducted in the future, the order was temporary and
under the rationale of the Chancellor and Jones cases, was not
appealable.
     I have looked elsewhere without success to determine if there
might be a case, rule, or statute under which a parent might appeal
a temporary custody order entered in a FINS or dependent-neglect
case.  Instead, I find that Ark. Code Ann.  9-27-343(a) (Repl.
1993), requires that all appeals from juvenile court shall be made
to the Arkansas Supreme Court or Court of Appeals in the same time
and manner provided for appeals from chancery court.  (Emphasis
added.)  Thus,  9-27-343(a) appears consistent with the rule set
out above in the Chancellor and Jones cases.  I would further point
out that Chancellor in particular cited Ark. R. App. P. 2(a) when
holding that a temporary custody award is not a final appealable
order. 
     At oral argument, Gullick referred to the language in  9-27-
343(c) and suggested that that subsection anticipates an appeal of
an out-of-home placement decision, since it provides that, "if a
final decision from the appellate court is not rendered within six
months from the date of entry of the notice of appeal, the Director
of the Administrative Office of the Courts shall designate either
a foster-care magistrate or a juvenile judge of another court to
conduct a review of the case."  While that language is bothersome
and confusing, I would submit subsection (c), as enacted under Act
273 of 1989, was a part of the General Assembly's failed effort to
provide appointed magistrates (or masters) to hear juvenile cases. 
This court held that the appointment of such officials constituted
an unauthorized grant of legislative authority and an impermissible
creation of what amounts to substitute judges.  See Hutton v.
Savage, 298 Ark. 256, 769 S.W.2d 394 (1989).
     For the reasons stated above, I believe Gullick's appeal
should be dismissed, since he appealed from a nonappealable order. 
At the same time, I would like to suggest that this court's
Committee on Civil Practice or the General Assembly study and
determine if, for appeal purposes, a temporary custody order
entered in a juvenile court's FINS or dependent-neglect hearing
should be considered differently from one entered in a chancery
court proceeding.  If so, a rule or law should be promulgated or
enacted clearly providing for such an appeal.