Ray Garcia v. Arkansas Department of Health & Human Services
Annotate this Case
Download PDF
SUPREME COURT OF ARKANSAS
No.
08-827
RAY GARCIA,
Opinion Delivered
APPELLANT,
September 4, 2008
VS.
MOTION TO FILE A BELATED
NOTICE OF APPEAL
ARKANSAS DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
APPELLEE,
GRANTED.
PER CURIAM
1.
MOTION FOR BELATED APPEAL – GRANTED WHERE APPELLANT’S ATTORNEY CANDIDLY
ADMITTED FAULT.–
Appellant’s attorney stated that, due to her lack of diligence,
appellant’s notice of appeal was untimely filed; in accordance with McDonald v.
State, appellant’s attorney candidly admitted fault; therefore, the motion for belated
appeal was granted.
Motion to File a Belated Notice of Appeal; granted.
Dee A. Scritchfield, for appellant.
No response.
Appellant Ray Garcia, by and through his attorney, Dee A. Scritchfield, has filed a
motion to file a belated notice of appeal. The circuit court’s order terminating Garcia’s
parental rights was filed April 21, 2008. Pursuant to Arkansas Supreme Court Rule 6-9(b)(2)
(2008), Garcia’s notice of appeal was required to be filed no later than May 5, 2008, but was
not filed until the next day, May 6, 2008. Ms. Scritchfield states that, due to her lack of
diligence, Garcia’s notice of appeal was untimely filed.
This court clarified its treatment of motions for rule on clerk and motions for belated
appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there
are only two possible reasons for an appeal not being timely perfected: either the party or
attorney filing the appeal is at fault, or, there is “good reason.” 356 Ark. at 116, 146 S.W.3d
at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the
appeal is at fault, or there is good reason that the appeal was not timely
perfected. The party or attorney filing the appeal is therefore faced with two
options. First, where the party or attorney filing the appeal is at fault, fault
should be admitted by affidavit filed with the motion or in the motion itself.
There is no advantage in declining to admit fault where fault exists. Second,
where the party or attorney believes that there is good reason the appeal was
not perfected, the case for good reason can be made in the motion, and this
court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit
admitting fault before we will consider the motion, an attorney should candidly admit fault
where he has erred and is responsible for the failure to perfect the appeal. See id. While the
instant case is not a criminal case, we have afforded indigent parents appealing from a
termination of parental rights similar protections to those afforded indigent criminal
defendants by applying the McDonald standard. See, e.g., Smith v. Arkansas Dep’t of Health &
Human Servs., 371 Ark. 425, ___ S.W.3d ___ (2007) (granting a motion for belated appeal
in a termination-of-parental-rights case).
-2-
08-827
This court’s rules further provide that no motion for belated appeal shall be entertained
unless application has been made to this court within eighteen months of the date of the entry
of judgment. See Ark. R. App. P.–Crim. 2(e) (2004). We note that Garcia’s motion was filed
well within the time period so prescribed.
[1] In accordance with McDonald v. State, supra, Ms. Scritchfield has candidly admitted
fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the
Committee on Professional Conduct.
Motion granted.
-3-
08-827
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.