Rose Harwell-Williams and Roger Jarrell v. Arkansas Department of Human Services
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SUPREME COURT OF ARKANSAS
No. 05-960
ROSE HARWELL-WILLIAMS
ROGER JARRELL
APPELLANTS,
VS.
ARKANSAS DEPARTMENT OF HUMAN
SERVICES,
APPELLEE,
Opinion Delivered
APPEAL FROM THE VAN BUREN
COUNTY CIRCUIT COURT,
NO. JV2003-94 A&B,
HON. LINDA P. COLLIER, JUDGE,
AFFIRMED.
BETTY C. DICKEY, Associate Justice
Rose Harwell-Williams appeals the order of the Juvenile Division of Van Buren
County Circuit Court, resulting from a Permanency Planning hearing and an adjudication on
a Dependency/Neglect petition filed against her by the Arkansas Department of Human
Services (DHS).1
Appellant alleges that the trial court erred in finding the children
dependent-neglected, and the correct procedure was not followed. We find no error and
affirm.
In January 2004, DHS was ordered to open a protective-services case on Appellant’s
family after a juvenile officer filed a FINS, “Family In Need of Services,” petition, alleging
that C.H. had stolen a bike, and that, due to a lack of supervision and past history, the family
was in need of services. After Appellant failed to comply with court orders, both her
1
Roger Jarrell, legal father of C.H., was not a party to this appeal.
children, C.H. and S.H., were removed and placed in DHS custody in April 2004. On April
15, 2005, the Juvenile Division of the Van Buren County Circuit Court noted in its order that
DHS requested a change in goals from reunification to termination of parental rights and
would be filing a petition for dependency-neglect. The court scheduled a Permanency
Planning hearing and an Adjudication on the anticipated Dependency-Neglect petition for
May 11, 2005. DHS filed the petition on April 27, 2005. On May 18, 2005, after the hearing
and adjudication, the court filed an order titled “Adjudication of Dependency-Neglect
Permanency Planning Order.” The order stated the goals regarding C.H. and S.H. would be
that the parental rights of C.H. be terminated, with the goal of adoption, and that S.H.’s father
would be granted permanent custody. While the order closed S.H.’s portion of the case, it
specifically stated that the cause would be continued as to C.H. with a termination of parental
rights hearing scheduled on August 10, 2005. On June 10, 2005, Appellant filed a notice of
appeal from the court’s May 18, 2005 order. On December 13, 2005, the court entered a
final order terminating Appellant’s parental rights as to C.H. and granting DHS the power
to consent to adoption. The record does not reflect an appeal from the court’s final order
terminating Appellant’s parental rights to C.H.
The case was certified to this court pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (b)(6),
involving an issue of first impression and requiring the construction of an act of the General
Assembly. We are asked to determine whether the trial court had jurisdiction to hold an
additional hearing subsequent to the filing of a notice of appeal and the lodging of a trial
transcript.
The order from which Appellant filed a notice of appeal was the Adjudication of
Dependency-Neglect Permanency Planning Order. The language of that order was final only
as to S.H. The order instructed that the goal of her case would be to grant permanent custody
to her father. The order read, “The Court hereby places permanent custody of [S.H.] with
her father and hereby closes her portion of this case.” Rule 2(d) of the Arkansas Civil Rules
of Appellate Procedure instructs that final orders awarding custody are final and appealable.
Rule 2(c)(3) of the Arkansas Civil Rules of Appellate Procedure provides that the
following are final appealable orders in juvenile cases where an out-of-home placement has
been ordered: (1) adjudication and disposition hearings; (2) review and permanency planning
hearings if the court directs entry of a final judgment as to one or more of the issues or parties
and upon express determination supported by factual findings that there is no just reason for
delay of an appeal, in accordance with Ark. R. Civ. P. Rule 54(b); (3) termination of parental
rights. While the court made a final adjudication with respect to C.H. on the petition for
dependency-neglect, the order was not final as to permanency planning for the child. The
order stated that the goal of the case for C.H. would be termination of parental rights with
a goal of adoption, but that the court would retain jurisdiction and the cause would be
continued with a later hearing regarding termination of parental rights.
Although Appellant filed a notice of appeal from the May 18, 2005, order, the juvenile
division of the circuit court retained jurisdiction to conduct further hearings because the case
involved a juvenile out-of-home placement. Arkansas Code Annotated § 9-27-343(c)(Supp.
2005) specifically states that “[p]ending an appeal from any case involving a juvenile out-ofhome placement, the juvenile division of the circuit court retains jurisdiction to conduct
further hearings.” Therefore, the trial court had jurisdiction to proceed with the final hearing
on Appellant’s termination of parental rights as to C.H. The final order of judgment as to
C.H. was entered on December 13, 2005.
Appellant first argues that the petition for dependency-neglect filed on April 27, 2005,
was untimely, as the children had been out of the home for one year. Arkansas Code
Annotated § 9-27-303 (Supp. 2005) defines a “dependent-neglected juvenile” as any juvenile
who is at substantial risk of serious harm as a result of numerous possible factors. (Emphasis
added). Appellant argues that because she did not have custody of the children at the time
DHS sought to terminate her parental rights her children could not have been at risk of
serious harm.
This case began as a FINS case, but the children were later ordered into the care of
DHS due to Appellant’s continued drug use and due to her inability to care for her children,
to the extent that they would have been in danger of severe maltreatment if left in her care.
DHS filed the dependency-neglect petition because Appellant had failed to remedy the
situation and had failed to cooperate with the case plan and court orders. The court
specifically found that Appellant did not maintain contact with DHS, submit to drug screens,
attend parenting classes, visit her children, complete the drug treatment programs, or
maintain contact with her children.
Were we to agree with Appellant’s argument, it would be tantamount to holding that
a neglectful parent would be shielded from future petitions for dependency-neglect once his
or her child was placed in DHS’s custody as a result of a FINS case. To hold that a court
must find that a child is at substantial risk of serious harm on the day of the adjudication
would mandate that no child could be found dependent/neglected after being placed into
DHS custody. This court will not interpret a statute to yield an absurd result that defies
common sense. National Home Centers, Inc. v. First Arkansas Valley Bank, ___ Ark. ___,
___ S.W.3d ___ (June 15, 2006).
For her second point on appeal, Appellant alleges that the trial court and DHS did not
follow the correct procedure by: (1) holding the adjudication hearing one year after the
children were removed from Ms. Harwell-Williams’s home; (2) holding the permanency
planning hearing and adjudication hearing simultaneously; and (3) failing to hold any of the
requisite hearings in order to properly “fast track” the termination of Ms. Harwell-Williams’s
parental rights. Only one of these three sub-points raised by Appellant was presented to the
trial court. After a hearing on May 11, 2005, the court issued the order that HarwellWilliams is appealing. The transcript of that hearing was included in the record and no
objection was made by Appellant that the proper hearings had not been held in order to “fast
track” the termination of Appellant’s parental rights, nor was there an objection as to the
timing of the adjudication hearing. It is well settled that Appellant cannot make an argument
for the first time on appeal. Morgan v. Chandler, ___ Ark. ___, ___ S.W.3d ___ (Oct. 12,
2006).
The only objection made by Appellant was the following:
And -- and I would go ahead and enter an objection-- if you choose not to
recuse, I would go ahead and enter an objection to doing the permanency
planning on the same day as the adjudication itself.
However, this objection was effectively waived when Appellant agreed on the record on
April 13, 2005, to hearing the adjudication on the dependency-neglect petition at the same
time as the permanency planning hearing on May 11, 2005. The court stated the following
in its April 18, 2005 order:
2. That David Hogue, on behalf of his client, made a motion for a continuance
of this Permanency Planning Hearing. His motion is hereby granted and this
cause is hereby continued to May 11, 2005 for the permanency hearing.
****
4. That the Department announced that they will be requesting that the goal
be changed to termination of parental rights and that they will be filing a
petition for dependency/neglect in this case.
5. That David Hogue agreed on the record to accept service on behalf of his
client of the DN petition that will be filed by the Department and agreed to
hearing the adjudication on that petition at the May 11, 2005 hearing herein.
Furthermore, there was neither a specific request nor a ruling by the court on the
issue of a simultaneous hearing on permanency planning and adjudication. Appellant
alleges that the court was misled by DHS with respect to Arkansas law, however, that is
mere speculation because there is no record of the court’s ruling. It may be inferred that
Appellant’s objection as to the simultaneous hearings was denied, as the court denied
Appellant’s Motion to Recuse and continued with the proceedings on May 11, 2005.
Where an appellant failed to obtain a specific ruling below, we do not consider that point
on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001). Objections and
questions left unresolved are waived and may not be relied upon on appeal. Drone v.
State, 303 Ark. 607, 798 S.W.2d 434 (1990). In the absence of findings of fact or rulings
on issues raised below, the argument is not preserved for appeal. Kulbeth v. Purdom, 305
Ark. 19, 805 S.W.2d 622 (1991).
DHS contends that this appeal is moot with respect to C.H. because there was no
appeal of the December 13, 2005, order from the termination hearing. In Linker-Flores v.
Arkansas Department of Human Services, 356 Ark. 369, 149 S.W.3d 884 (2004), and its
progeny, this court held that, after entry of the order terminating parental rights, an
indigent parent has the right to counsel on appeal and the benefit of the procedure
outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).2 In addition, this
court has held that indigent parents appealing from a termination of parental rights are
afforded similar protections as those afforded indigent criminal defendants.3 LinkerFlores v. Arkansas Dep’t of Human Servs., 356 Ark. 369, 149 S.W.3d 884 (2004); Tyler
v. Arkansas Dep’t of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (May 18, 2006). In
Flannery v. Arkansas Dep’t of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Oct. 12,
2006), we remanded the indigent father’s motion for a belated appeal in order for the trial
court to determine whether Flannery had been made aware of his right to appeal, and
2
Anders specifically held that an indigent parent has the right to file a no-merit
brief.
3
We further note that, while not applicable in the instant case, the newly
promulgated Ark. Sup. Ct. R. 6-10 (2006) sets forth trial counsel’s duties in dependencyneglect appeals.
whether he had received notice of the termination order. The trial court found that
Flannery was not notified of his right to appeal the parental-termination order and,
recently, this court granted his motion for belated appeal. See Flannery v. Ark. Dep’t of
Human Servs., ___ Ark. ___, ___ S.W.3d ___ (Nov. 9, 2006). In the instant case, the
issue of mootness is premature, as we do not know the status of any appeal from the
December 13, 2005, order.
Affirmed.
H ANNAH, C.J. and C ORBIN, J., concur.
J IM H ANNAH, Chief Justice, concurring. I agree with the majority that this case
should be affirmed; however, because I
disagree with the last paragraph of the majority opinion, I must concur. I write separately
to express my disagreement with the majority’s issuance of an advisory opinion.
In the final paragraph of the opinion, the majority states, in relevant part:
DHS contends that this appeal is moot with respect to C.H. because there
was no appeal of the December 13, 2005 order from the termination
hearing. . . . In Flannery v. Arkansas Dep’t of Human Servs., ____ Ark.
____, ____ S.W.3d ____ (Oct. 12, 2006), we remanded the indigent father’s
motion for a belated appeal in order for the trial court to determine whether
Flannery had been made aware of his right to appeal, and whether he had
received notice of the termination order. The trial court found that
Flannery was not notified of his right to appeal the parental-termination
order and, recently, this court granted his motion for belated appeal. See
Flannery v. Ark. Dep’t of Human Servs., ____ Ark. ____, ____ S.W.3d
____ (Nov. 9, 2006). In the instant case, the issue of mootness is
premature, as we do not know the status of any appeal from the December
13, 2005 order.
It is not the practice of this court to anticipate future litigation and issue advisory
opinions. Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995). The majority appears
to suggest that this court will entertain a belated appeal of the order terminating parental
rights as to C.H. Aside from the fact that no appeal has been taken, the question of
whether a belated appeal would be allowed in this case necessarily involves fact-based
issues that have not been decided at the trial level. We do not know whether Ms.
Harwell-Williams will ever appeal the order terminating her rights as to C.H., and we
certainly do not know whether Ms. Harwell-Williams would assert a good reason for this
court to grant a motion for belated appeal. We have consistently refused to issue advisory
opinions based on facts not in evidence and events that have not yet occurred. See, e.g.,
Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001). “[C]ourts do not sit for
the purpose of determining speculation and abstract questions of law or laying down rules
for the future conduct[.]” Id. at 103, 40 S.W.3d at 220 (quoting Baker Car & Truck
Rental, Inc. v. City of Little Rock, 325 Ark. 357, 363, 925 S.W.2d 780, 784 (1996)).
Based on the foregoing, I believe the last paragraph of the majority opinion should
be stricken in its entirety.
C ORBIN, J., joins.
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